JUDGMENT : ANIL KUMAR CHOUDHARY, J. Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the entire criminal proceeding including the order framing charge dated 12.07.2023 passed by the learned Chief Judicial Magistrate, Hazaribagh in Sadar P.S. Case No.459 of 2015 corresponding to G.R. No.392 of 2023 whereby and where under the charges have been framed against the petitioner for having committed the offences punishable under Section 409, 120 (B) of the Indian Penal Code and consequential relief. 3. The brief fact of the case is that the petitioner was posted as Junior Engineer in Rural Development Special Division, Hazaribagh. The petitioner-public servant was allotted total Rs.9,00,000/- for the project of construction of Tehsil Kutchery Building, Bishnugarh. The petitioner in criminal conspiracy with the co-accused persons with the common object of such conspiracy, committed criminal breach of trust by dishonestly misappropriating a sum of Rs.61,951/- from the said Government money; entrusted to the petitioner. Police took up the investigation of the case and after finding the allegation against the petitioner to be true, submitted charge-sheet against him,. Consequent upon the same cognizance has been taken by the learned Judicial Magistrate, Hazaribagh. Charges were framed on 12th July, 2023 and it is submitted by the learned counsel for the petitioner that so far one prosecution witness has been examined during the trial of the case. 4. Learned counsel for the petitioner submits that the allegation against the petitioner is false and no departmental proceeding was initiated against the petitioner during the entire service period and now, he is superannuated from the service with effect from 31.01.2020. 5. Learned counsel for the petitioner next submits that the petitioner admits that while posted as Junior Engineer in the Office of Executive Engineer, Rural Development Special Division, Hazaribagh, the petitioner was allotted work to construct Tehsil Kutchery Buildings at Tati Jharia, Bishnugarh and Banaso. It is also submitted that the petitioner admits of having received the advance of Rs.10,00,000/- from the department and the work was verified and checked by the department and the same was found correct. 6. It is also submitted that the petitioner admits of having received the advance of Rs.10,00,000/- from the department and the work was verified and checked by the department and the same was found correct. 6. Learned counsel for the petitioner also submits that the petitioner was transferred from Hazaribagh to the Office of Chief Engineer, Water Resources Department, Medininagar on dated 20.03.2009 and handed over the charge and joined the transferred post at Medininagar. In this case, the petitioner was remanded to judicial custody and released on bail on 20.12.2022. No information was given by the department in the First Information Report regarding the 3rd work situated at Tati Jharia. As per the information obtained under the Right to Information Act, 2005 from the department, it is apparent that an amount of Rs.4,23,925/- has been adjusted/set off by the advance payment made for construction of Tehsil Kutchery Buildings at Bishnugarh and Banaso and a sum of Rs.4,15,282/- has been adjusted/set off against the advance payment made for the construction of the Tehsil Kutchery at Banaso and a sum of Rs.3,48,634/- has been adjusted/set off against the amount paid for the construction of Tehsil Kutchery Buildings at Tati Jharia. 7. Learned counsel for the petitioner further submits that the petitioner incurred total expenditure of Rs.11,87,839 against the advance of Rs.10,00,000/-. It is also submitted that the wife of the petitioner deposited Rs.61,951/- out of fear in favour of the Executive Engineer, Rural Development, Special Division, Hazaribagh and the complaint filed by the informant under Section 156 (3) of the Code of Criminal Procedure was not supported by an affidavit duly sworn by the informant and the same is bad in law in view of the judgment passed by the Hon’ble Supreme Court of India reported in the case of Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others reported in (2015) 6 SCC 287 . It is further submitted by the learned counsel for the petitioner that no previous sanction has been taken by the State Government before taking cognizance under Section 409 and 120B of the Indian Penal Code. Hence, it is submitted that the prayer as prayed for in this Cr.M.P. be allowed. 8. It is further submitted by the learned counsel for the petitioner that no previous sanction has been taken by the State Government before taking cognizance under Section 409 and 120B of the Indian Penal Code. Hence, it is submitted that the prayer as prayed for in this Cr.M.P. be allowed. 8. Learned Spl.P.P. on behalf of the State on the other hand vehemently opposes the prayer made by the petitioner in this Cr.M.P. and submits that it is highly unlikely that a Junior Engineer who will spent Rs.1,87,839/- from his pocket for a work of the Government and will not demand that money from the Government for at least five years, till the F.I.R. was lodged. It is then submitted that only after the F.I.R. was instituted, this false defence plea has been set up as a cooked up story to save the petitioner from the criminal prosecution. 9. Leaned Spl.P.P. next submits that the contention of the petitioner can be agitated by the petitioner as a defence during the trial but certainly, the said defence of the petitioner cannot be treated to be a gospel truth for quashing the entire criminal proceeding. It is next submitted that the information received under Right to Information Act is photocopy of certain documents and there is no material to verify the veracity of the same, and the veracity of the same can be tested only during the full dress trial. 10. So far as the contention of the petitioner regarding the principle of law settled by the Hon’ble Supreme Court of India in the case of Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others (Supra) having not been followed with, is concern, learned Spl.P.P. submits that the complaint in this case was referred to police under Section 156 (3) of the Code of Criminal Procedure vide order dated 10.04.2014 by the Chief Judicial Magistrate, Hazaribag and the judgment in the case of Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others (Supra) was pronounced on 19.03.2015. 11. It is next submitted that there is nothing in the case of Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others (Supra) to suggest that the observations made therein by the Hon’ble Supreme Court of India will be applicable with retrospective effect. 11. It is next submitted that there is nothing in the case of Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others (Supra) to suggest that the observations made therein by the Hon’ble Supreme Court of India will be applicable with retrospective effect. Therefore criminal proceeding of this case so far as it relates to referring the complaint under Section 156 (3) of the Code of Criminal Procedure will not be hit by the observations made by the Hon’ble Supreme Court of India in the case Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others (Supra). 12. It is next submitted that the Hon’ble Supreme Court of India in the case of M/s SAS Infratech Pvt. Ltd. Vs. The State of Telangana & Another in Criminal Appeal No.2574 of 2024 dated 14.05.2024 passed in Special Leave Petition (Crl.) No.2123 of 2024 paragraph-9 of which reads as under:- “9. The learned counsel for Respondent No.2 has placed reliance of the decision of this Court in “Priyanka Srivastava And Another Versus State of Uttar Pradesh And Others” (2015) 6 SCC 287 to submit that the complaint filed by the appellant – complainant was not supported by an affidavit. In our opinion, the said observation has been made in the said case by way of abundant caution to see that frivolous complaints are avoided.” and submits that therein it has been observed by the Hon’ble Supreme Court of India that the observations made in the case of Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others (supra) has been made in the said case by way of abundant caution to see that frivolous complaints are avoided and in the case of M/s SAS Infratech Pvt. Ltd. Vs. The State of Telangana & Another even though the complaint was not supported by an affidavit, still the Hon’ble Supreme Court of India held that the Magistrate after having been prima facie satisfied, having exercised its judicial discretion by directing investigation under Section 156 (3) of the Code of Criminal Procedure and held such order to be just, legal and proper and set aside the order passed by the High Court setting aside such order of Magistrate. 13. 13. Learned Spl.P.P. draws the attention of this Court to paragraph-30 of the judgment of the Hon’ble Supreme Court of India in the case of Krishna Mochi & Others vs. State of Bihar reported in (2002) 6 SCC 81 wherein it has been observed by the Hon’ble Supreme Court of India that such a rule of caution ordinarily, which would obviously mean that there is no blanket ban or rule of universal application that if the number of eyewitnesses is less than two, in no case conviction can be upheld. Thus, it is submitted that the judgment passed in Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others (Supra) cannot be a rule of universal application. 14. It is next submitted by the learned Spl.P.P. that so far as the contention with regard to the sanction of prosecution is concerned, it is a settled principle of law that the commission of criminal breach of trust in respect of Government property cannot be treated to be an act done or purported to be having done in discharge of his official duty because official duty does not include dishonest misappropriation of the Government money; otherwise also there is no material in the record to suggest that the petitioner who used to work as Junior Engineer who after his retirement ceased to be a public servant was not removable from his office without the sanction of the Government; more so after his retirement, there is no necessity of any sanction for prosecution of the petitioner. Hence, it is submitted that this is not a case in which the cognizance order can be said to be illegal on ground of want of sanction for prosecution. Hence, it is submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed. 15. Hence, it is submitted that this is not a case in which the cognizance order can be said to be illegal on ground of want of sanction for prosecution. Hence, it is submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed. 15. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, so far as the contention of the petitioner regarding sanction of prosecution having not been taken is concerned, it is pertinent to mention here that as has been held by the Hon’ble Supreme Court of India in the case of Manohar Nath Kaul vs. State of Jammu & Kashmir reported in (1983) 3 SCC 429 , it was held by the Hon’ble Supreme Court of India that where public servant commits any offence of cheating, the offence committed by him is not one while he is acting or purported to act in discharge of his official duty; as such offence has no necessary connection between it and the performances of the duty of the public servant. Similarly, in the case of B. Saha & Others vs. M.S. Kochar reported in AIR 1979 SC 1841 , the dishonest misappropriation and conversation of goods by Custom Officer which they have seized was held to be not in discharge of official duty. 16. Now coming to the facts of the case, the allegation against the petitioner is that he has dishonestly misappropriated Government money and in the considered opinion of this Court, there is no direct and reasonable nexus between the offence of committing criminal breach of trust and discharge of official duty of the petitioner; otherwise also neither there is any averment in the criminal miscellaneous petition that the petitioner was a public servant not removable from his service saved by the sanction of the Government nor there is any material placed in this respect. Hence, on this score also, the provision of Section 197 of Cr.P.C. will not be directed in the case of the petitioner. 17. Hence, on this score also, the provision of Section 197 of Cr.P.C. will not be directed in the case of the petitioner. 17. So far as the contention of the petitioner regarding the complaint being not supported by an affidavit is concerned, as has rightly been submitted by the learned Spl.P.P. that since the order referring the complaint to police under Section 156 (3) of the Code of Criminal Procedure was passed before pronouncement of the judgment in Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others, this Court has no hesitation in holding that the order of the Magistrate in referring the complaint to the police under Section 156 (3) can be held to be bad in law for being in violation of the observations made as abundant caution in the case of Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others more so as in the case of M/s SAS Infratech Pvt. Ltd. Vs. The State of Telangana & Another, the Hon’ble Supreme Court of India in facts of that case where when the complaint was not supported by an affidavit held the order for investigation under Section 156 (3) of Cr.P.C. passed by the Magistrate to be just, legal and proper. 18. So far as the contention of the petitioner that he has spent an amount of Rs.1,87,839/- to the work entrusted to him is concerned, such contention is prima facie unbelievable because the petitioner claims to have spent some amount in 2019 and till the complaint was lodged in the year 2014, he never demanded the money spent by him even though he was transferred from that place wherein he claims to have invested his own money to a different district altogether, and more or less, it appears that the defence has cooked up such story only after institution of the case; in order to set up a defence. As it is a settled principle of law that no mini trial can be conducted by the High Court in exercise of the power under Section 482 of Cr.P.C.; as has been observed by the Hon’ble Supreme Court of India in the case of State of Uttar Pradesh & Another vs. Akhil Sharda & Others, reported in 2022 SCC OnLine SC 820, paragraph-18 of which reads as under:- “18. Having gone through the impugned judgment and order passed by the High Court by which the High Court has set aside the criminal proceedings in exercise of powers under Section 482 Cr.P.C., it appears that the High Court has virtually conducted a mini trial, which as such is not permissible at this stage and while deciding the application under Section 482 Cr.P.C. As observed and held by this Court in a catena of decisions no mini trial can be conducted by the High Court in exercise of powers under Section 482 Cr.P.C. jurisdiction and at the stage of deciding the application under Section 482 Cr.P.C., the High Court cannot get into appreciation of evidence of the particular case being considered.” (Emphasis supplied) Thus, this Court is not inclined to accede to the prayer of the petitioner to enter into a mini trial to verify the veracity of the defence raised by the petitioner in this Cr.M.P. It is also a settled principle of law that in exercise of the power under Section 482 of Cr.P.C., the genuine prosecution cannot be stifled with as has been held by the Hon’ble Supreme Court of India in the case of Monica Kumar (Dr.) & Another vs. State of Uttar Pradesh and Others reported in (2008) 8 SCC 781 . 19. Because of the discussions made above, this Court is of the considered view that there is no merit in this Criminal Miscellaneous Petition. 20. Accordingly, this Criminal Miscellaneous Petition, being without any merit, is dismissed.