ORDER : Renuka Yara, J. Heard Sri G. Ashok Reddy, learned counsel for the petitioners and Sri T. Srujan Kumar, learned Standing Counsel for the CBI/respondent. 2. The present criminal revision case is preferred by the petitioners/accused Nos.1 and 4 aggrieved by the order dated 30.08.2024 passed by the learned XXI Additional Chief Judicial Magistrate-cum- Special Judicial Magistrate First Class for trial of CBI Cases, Hyderabad, (‘CBI Court’), in Crl.M.P.No.403 of 2018 in C.C.No.23 of 2018 (Old Crl.M.P.No.189 of 2014 in old C.C.No.77 of 2013), wherein petition for discharge of accused Nos.1 and 4 from the offences under Sections 120-B read with 409, 420, 471 read with 468 of the Indian Penal Code, 1860 (‘ IPC ’) was dismissed. 3. The brief facts of the case are that a criminal case was registered vide FIR No.RC-5 (E)/2012 on 17.04.2012 by the Inspector, CBI, Bank Securities & Fraud Cell (‘BS & FC’), Bangalore, against Sanjay Kumar @ Sanjay Agarwal (A1/petitioner No.1), Ajay Kumar @ Ajay Kumar Agarwal (A2), Vinay Kumar @ Vinay Kumar Agarwal (A3) and M/s. Ghanshyamdas Gems and Jewels (A4/petitioner No.2) regarding availment of Gold Metal Loan limits in the name of petitioner No.2 by providing security of gold and jewellery hypothecated to the Punjab National Bank (‘de facto complainant’) and other collateral securities. Thereafter, accused have removed the primary security without the knowledge and consent of the de facto complainant and thereafter, committed default in repayment of the outstanding liabilities and thereby, committed criminal breach of trust and cheating resulting in wrongful loss of Rs.30,09,63,890.00 + contractual interest to the de facto complainant and consequent wrongful gain to petitioner No.2. 4. Additionally, there is allegation of submission of copy of false and forged sanction letter No.F.No.IDB/GB, dated 21.10.2010 allegedly issued by the State Bank of India addressed to petitioner No.2 bearing rubber stamp and impression of petitioner No.2 falsely reflecting sanction of Gold Metal Loan limit of 600 kg to petitioner No.2 at an interest rate of 3.75% against Fixed Deposits, to the de facto complainant. Further, letter dated 06.04.2011 is addressed to the Assistant General Manager of the de facto complainant falsely stating that petitioner No.2 is already availing Gold Metal Loan from the State Bank of India at 3.75% and said sanction letter was submitted to the de facto complainant. Further, letter dated 06.04.2011 is addressed to the Assistant General Manager of the de facto complainant falsely stating that petitioner No.2 is already availing Gold Metal Loan from the State Bank of India at 3.75% and said sanction letter was submitted to the de facto complainant. The said letter falsely stated that petitioner No.2 firm had diverted the business from the State Bank of India to the de facto complainant and requested for competitive rate as compared to interest rate of the State Bank of India. Thus, based on the request of petitioner No.1, the New Delhi office of the de facto complainant relaxed the rate of interest by 2% from the applicable rate of interest of 4%. Petitioner No.1 has taken delivery of Gold on thirteen different dates during the period from 27.06.2011 to 10.08.2011 aggregating to 275 kgs against the sanctioned limit by duly acknowledging in the delivery register of the de facto complainant by creating Fixed Deposits in the name of petitioner No.2 and also in the name of Smt. Shanta Bai, who is the partner of petitioner No.2 firm. The gold deliveries made on 27.06.2011 and 29.06.2011 aggregating 50 kgs were duly repaid on 29.07.2011, thereby leaving an outstanding of 225 kgs. Thereafter, at the request of petitioner No.1, the de facto complainant had placed indent with its Treasury Division, Head Office, New Delhi, for importing 100 kgs gold for petitioner No.1 on 27.07.2011 and when consignment was received on 06.08.2011 from overseas supplier, petitioner No.1 took delivery of Metal Gold from de facto complainant against the consignment of 100 kgs gold on 08.08.2011, 09.08.2011, 10.08.2011 and 11.08.2011 by duly acknowledging in the delivery register and arranged deposit of Rs.2.05 lakhs on 13.08.2011 in the name of petitioner No.2. Then, petitioner No.1 sold the entire gold deliveries taken from the de facto complainant on loan basis to one Tippu Soni by receiving cash without truly reflecting the transactions in the books of accounts of petitioner No.2 and without issuing sale invoices. 5. Petitioner No.1 was regularly placing buy orders for gold as well as US Dollars for fixing gold rate for the loan availed by petitioner No.2. An order for USD 4.77 million was placed on 26.07.2011 for meeting the payment due on 29.07.2011. 5. Petitioner No.1 was regularly placing buy orders for gold as well as US Dollars for fixing gold rate for the loan availed by petitioner No.2. An order for USD 4.77 million was placed on 26.07.2011 for meeting the payment due on 29.07.2011. Petitioner No.1 has pursued with the Treasury Division on 27.07.2011 for booking forward contract for two months for USD 4.77 million by stating that his then outstanding against Gold Metal Loan limits was USD 15 million. Out of outstanding, petitioner No.1 made repayment of 4.76 million USD on 29.07.2011 and placed gold rate order for 200 kgs gold outstanding with Treasury Division of the de facto complainant, on 09.08.2011 and further placed for 100 kgs gold on 10.08.2011, thus placing gold rate order for 300 kgs gold. During August, 2011, the security furnished to the de facto complainant against the Gold Metal Loan limits of Rs.19.00 crores and Rs.50.00 crores were falling short of the required margin. Petitioner No.1 vide letter dated 22.08.2011 assured that adequate margin will be provided in short period. Petitioner No.1 requested to cooperate and accept original documents of property admeasuring Ac.1-04 guntas situated at Palmakole Village, Shamshabad Mandal, Ranga Reddy District, standing in the name of Parmila Bai, who is partner of petitioner No.2, as temporary additional collateral. There was criminal conspiracy among the accused to remove the entire stock of gold and jewellery, which was hypothecated to the de facto complainant from the business premises of petitioner No.2 without its permission and consent, thus, caused wrongful loss to the de facto complainant. The stock statement was not furnished and when the de facto complainant conducted a stock audit, it revealed that there was stock of pearl relating to items worth Rs.1,22,500/- approximately as against 300 kgs of gold against both limits. Having assured to provide margin by providing original documents of landed property, petitioner No.1 disputed liability with respect to 100 kgs gold and did not make payments to de facto complainant and thereby caused wrongful loss of Rs.31,97,60,175.00/- as on 10.06.2012 to the de facto complainant. Therefore, a case was registered against the petitioners herein and accused Nos.2 and 3 for availing Gold Metal Loan at reduced interest fraudulently and dishonestly on the basis of forged sanction letter purportedly issued by the State Bank of India. 6. Therefore, a case was registered against the petitioners herein and accused Nos.2 and 3 for availing Gold Metal Loan at reduced interest fraudulently and dishonestly on the basis of forged sanction letter purportedly issued by the State Bank of India. 6. Upon conducting investigation and collecting required oral and documentary evidence charge sheet was filed against the petitioners herein and accused Nos.2 and 3. Aggrieved by the same, the petitioners herein moved petition under Section 239 of Cr.P.C. seeking discharge from the criminal charges vide Crl.M.P.No.403 of 2018 in C.C.No.23 of 2018 and the said petition was dismissed by way of the impugned order with the following observation: “46. …on a careful consideration of contents of final report, statements of witnesses and documents filed along with it and in view of foregoing reasons, this court holds that prima facie case is made out against the petitioners/A1 and A4 for offences under Sections 420 , 468 and 471 of IPC and no prima facie case is made out for the offence under Section 120-B r/w 409 of IPC and that the petitioners/A1 and A4 are not entitled for discharge. Accordingly, the point is answered against the petitioners.” 7. Aggrieved by the impugned order, the present revision is preferred. 8. In the grounds of revision, it is pleaded that contents of the charge sheet and material produced do not make out case against the petitioners for the offences under Sections 120-B , 409, 420, 471 read with 468 of the IPC . The findings of the trial Court were referred comparing the said findings with the contents of the annexures. This Court is not inclined to give any findings about the contentions raised by the petitioners under the caption ‘alternative security available with the bank’, ‘no deception since the inception of the contract’ and ‘concession in the rate of interest not due to the borrower i.e., the accused’ and that the nature of the liability is civil in nature and that there can be no criminal liability. Further, the petitioners referred to principles of discharge to be followed while dealing with discharge petition under Section 239 of Cr.P.C. by a Magistrate. 9. Further, the petitioners referred to principles of discharge to be followed while dealing with discharge petition under Section 239 of Cr.P.C. by a Magistrate. 9. During the arguments, learned counsel for the petitioners referred to the contents of copy of Reserve Bank of India circular regarding Gold Metal Loan dated 05.09.2005 addressed to all Scheduled Commercial Banks, Circular letter No.1/2006 dated 19.07.2006, Circular No.28/2007 dated 26.04.2007, Circular No.39/2011 dated 21.05.2011, letter dated 21.05.2010 issued regarding precious metal business, proposal of overdraft limit favour petitioner No.2 dated 05.10.2010, sanction of overdraft limit to petitioner No.2 dated 12.10.2010, which contains hypothecation of immovable property after considering the strength and weakness of the borrower. Further, reference is made to sanction authority letter dated 03.11.2010, letter dated 03.11.2010 issued by the de facto complainant about receipt of proposal for overdraft limit of Rs.19 Crores, letter dated 04.03.2011 informing about the M/s. MBS Jewellers. Pvt. Ltd and MBS Impex Pvt. Ltd enjoying concession interest rate at 2%, letter dated 08.04.2011 and letter dated 06.04.2011 of petitioner No.2 showing interest rate of 3.75% provided by the State Bank of India. Reference is further made to internal correspondence dated 15.04.2011 between the officers of the de facto complainant and petitioner No.2 pertaining to return of Fixed Deposit and statement of account ledger inquiry showing no liability as on 04.08.2011. 10. By referring to contents of the aforementioned documents, learned counsel for the petitioners argued that the accused availed Gold Metal Loan facility, overdraft and hypothecation from de facto complainant and have purchased about 300 kgs of gold and thereafter, part of the loan obtained for the gold was repaid. The said part payment by the accused shows that there was no intention to cheat the de facto complainant. For constitution of offence under Section 420 of the IPC , there must be intention to cheat at the inception of the transaction. 11. In that regard reference is made to the judgment of the Hon’ble Supreme Court in the case between Mohammad Ibrahim v. State of Bihar , [ (2009) 8 SCC 751 ] wherein it is held that there is growing tendency of the complainants attempting to give the cloak of a criminal offence to the matters which are essentially and purely civil in nature. The constitution of offence under Section 420 of the IPC there must be three ingredients which are to be proved i.e., (i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission; (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property. 12. Further, reference is made to the judgment of Hon’ble Supreme Court in the case of Hridaya Ranjan Prasad Verma v. State of Bihar , [ (2000) 4 SCC 168 ] wherein it is held that unless fraudulent or dishonest interest is shown right at the beginning of the transaction that is the time when the offence is said to have been committed. 13. Reliance is also placed on the judgment in Manish v. State of Maharashtra , [2025 SCC OnLine SC 707] , wherein it is held that the test to determine whether a case would attract penal consequences is whether the offending party made dishonest representation at the inception of the transaction and induce the other party to part with property, or act in a manner which but for such representation, the latter would not have done. 14. Learned counsel for the petitioners also relied on the judgment in between Uma Shankar Gopalika v. State of Bihar , [ (2005) 10 SCC 336 ] , wherein it is held that if the intention to cheat developed later on, the same cannot amount to cheating. 15. On the basis of the aforementioned citations, learned counsel for the petitioners argued that mere factum of availment of Gold Metal Loan limit does not give raise to any ground to allege that there was intention to cheat at the very beginning/inception of the loan and the said fact is confirmed by the conduct of the petitioners in part payment of the loan availed. In case there is any default in payment of loans, the same becomes a civil dispute and it does not give raise to any criminal liability as held by the Hon’ble Supreme Court in Mohammed Ibrahim (cited supra), wherein it is held that conversion of civil cases into criminal disputes must be discouraged and civil cases must not be covered under threat of criminality. 16. With respect to furnishing of letter purportedly issued by the State Bank of India showing that Gold Metal Loan is already availed by petitioner No.2 with interest at 3.75% being forged document, it is argued that the said document in original was never produced before the CBI Court. It is vehemently argued that a photocopy of the said letter was allegedly produced by CBI for leveling charges under Sections 471 read with 468 of the IPC without producing the original. It is further argued that a photocopy of a document cannot be received in evidence and therefore, the offences alleged under Sections 471 read with 468 of the IPC are not sustainable. In that regard reference is made to the judgment of the Hon’ble Supreme Court in Mohammad Ibrahim (cited supra), wherein there is categorization of false documents, the relevant portion is extracted and produced below: 14. An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories: 1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed. 2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person. 3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration. 3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration. In short, a person is said to have made a “false document”, if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses.” 17. Referring to the above mentioned categorization, it is argued that the alleged document issued by the State Bank of India was never produced by the petitioners herein and they have no knowledge about the existence of such a document. In any case, the said document was not issued on behalf of the petitioners. In case the said document is referred to as being issued by the State Bank of India, the same cannot be attributed to the petitioners. 18. Further, reference is made to the judgment of Supreme Court of India in Parminder Kaur v. State of Uttar Pradesh , [ (2010) 1 SCC 322 ] , wherein it is held that when forgery does not cause injury or damage there cannot be said to be any intention to commit fraud. 19. Referring to the aforementioned judgments, it is argued that the de facto complainant has already given concession of 2% interest to other customers such as M/s. MBS Jewellers. Pvt. Ltd and MBS Impex Pvt. Ltd., where requisition is made for concession of interest rate and the same is placed before the Board of Directors and by following due procedure such concession is given. In the instant case, a proposal was made by the bank officials themselves as they were interested in attracting customers who were availing Gold Metal Loans from other banks and for the purpose of attracting such customers concessions are provided and when such concessions are provided to other customers, no offence can be attributed to the petitioners for seeking the same concession. 20. 20. In response, learned Standing Counsel for CBI relied upon the judgment of the Hon’ble Supreme Court in Ram Narayan Popli v. CBI , [ (2003) 3 SCC 641 ] ¸ wherein there is description about offence of criminal breach of trust, the relevant paragraph is extracted and produced below: “361. To constitute an offence of criminal breach of trust, there must be an entrustment, there must be misappropriation or conversion to one's own use, or use in violation of a legal direction or of any legal contract; and the misappropriation or conversion or disposal must be with a dishonest intention. When a person allows others to misappropriate the money entrusted to him, that amounts to a criminal breach of trust as defined by Section 405. The section is relatable to property in a positive part and a negative part. The positive part deals with criminal misappropriation or conversion of the property and the negative part consists of dishonestly using or disposing of the property in violation of any direction and of law or any contract touching the discharge of trust.” 21. In the same judgment, there is reference to offences under Sections 420 , 467, 468, 479 of the IPC , the relevant paragraphs are extracted and produced below: 366. Section 420 deals with cheating and dishonestly inducing delivery of property. The offence of cheating is made of two ingredients : deception of any person and fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property. To put it differently, the ingredients of the offence are that the person deceived delivers to someone a valuable security or property, that the person so deceived was induced to do so, that such person acted on such inducement in consequence of his having been deceived by the accused and that the accused acted fraudulently or dishonestly when so inducing the person. To constitute the offence of cheating, it is not necessary that the deception should be by express words, but it may be by conduct or implied in the nature of the transaction itself. 367. Section 467 relates to forgery of such documents as valuable securities and of other documents mentioned. 368. Section 468 deals with forgery for the purpose of cheating. The offence is complete as soon as there was forgery with a particular intent. 369. 367. Section 467 relates to forgery of such documents as valuable securities and of other documents mentioned. 368. Section 468 deals with forgery for the purpose of cheating. The offence is complete as soon as there was forgery with a particular intent. 369. Section 471 deals with using as genuine a forged document. For the purpose of convicting an accused under Section 467 read with Section 471 IPC , it has to be shown that an accused either knew or has reason to believe that the document was forged. 370. Section 463 defines forgery and Section 464 deals with making a false statement. Section 463 reads as follows: “463. Forgery.—Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.”” 22. Further, reliance is placed in the case of State of Tamil Nadu v. R. Soundirarasu , [ (2023) 6 SCC 768 ] , with respect to ambit and scope of exercise of power under Sections 239 and 240 of Cr.P.C., wherein it is held that the accused can be discharged under Section 239 of Cr.P.C. when the Magistrate considers the charges against the accused are groundless. The Section mandates that the Magistrate shall discharge the accused recording reasons, after: (i) considering the police report and the documents sent with it under Section 173 of Cr.P.C., (ii) examining the accused, if necessary and (iii) giving the prosecution and the accused an opportunity of hearing and still considers the charge sheet is groundless. 23. On the aspect of the cheating and criminal breach of trust, having regard to the rival contentions, the material on the record shows that availing of loan is admitted by the parties and part payment of loan is also acknowledged. The issue of cheating is not attributed to the act of availing of loan with an intention of complete non-payment. The act of cheating and criminal breach of trust are attributed to the acts of the petitioners in handing over the entire gold in favour of one Tippu Soni without knowledge and consent of the de facto complainant. The issue of cheating is not attributed to the act of availing of loan with an intention of complete non-payment. The act of cheating and criminal breach of trust are attributed to the acts of the petitioners in handing over the entire gold in favour of one Tippu Soni without knowledge and consent of the de facto complainant. In the stock audit conducted by the de facto complainant, it is shown that the gold which was purchased by availing Gold Metal Loan facility as debt was not available in the premises of petitioner No.2, as it was handed over to one Tippu Soni. Whether the petitioners intended to avail loan facility for the purpose of handing over the gold to third parties at the very inception of the loan transaction is an issue which can be decided only after full-fledged trial. Further, whether the consent of the de facto complainant is required for giving the gold stocks to Tippu Soni by the petitioners is a matter which has to be decided only after recording of evidence. When there is prima facie case of cheating and criminal breach of trust, the question of discharging the petitioners does not arise. 24. With respect to the allegation of forgery, the charge sheet shows providing letter dated 21.10.2010 purported to be issued by State Bank of India providing loan facility with interest at 3.75% to petitioner No.2. On the basis of the said letter, the petitioners made a proposal to the de facto complainant for providing competitive interest rate for transferring entire debt from the State Bank of India to de facto complainant’s bank. The primary defence raised by the petitioners with respect to forgery is that the said letter was not issued by them or on their behalf. The CBI never made an allegation that the petitioners have issued the said letter. The allegation is that the petitioners produced forged and false document under the guise of letter purported to be issued by the State Bank of India showing interest at 3.75% for the purpose of seeking concession of 2% from the de facto complainant and obtained concession of 2% interest rate. To sum up, CBI alleges that concession of 2% interest rate is secured by the petitioners on the basis of forged and false document purported to be issued by the State Bank of India, though, such is not the case. To sum up, CBI alleges that concession of 2% interest rate is secured by the petitioners on the basis of forged and false document purported to be issued by the State Bank of India, though, such is not the case. The petitioners claim that the said original letter is not produced before the CBI Court and the said letter is not issued by the petitioners. Acknowledging the contention of the petitioners for a moment, such a letter seeking benefit to the petitioners cannot be produced by the third parties. In the documents filed along with charge sheet internal correspondences among bank officials has reference of the letter purported to be issued by the State Bank of India. Such a letter can be produced only by the petitioners, who are benefited by producing it before the de facto complainant. Said letter can neither be produced by the State Bank of India as said bank cannot get any gain from the same and nor by the third parties, who do not gain anything by fabricating such letter. The only persons, who stand to gain from such letter are the petitioners. Even so, to prove the prima facie case, the burden still lies on the CBI to prove that the letter was produced by the petitioners before the de facto complainant for seeking concession in interest rate and said letter was never issued by State Bank of India. Since there is prima facie case as per circumstances prevailing, at this stage prematurely, the petitioners cannot be discharged for the offences under Sections 468 and 471 of the IPC . 25. Lastly, there is argument about the power of the Magistrate to discharge the accused. In that respect, learned counsel for the petitioners relied upon the judgment of the Hon’ble Supreme Court in the case of CBI v. K. Narayan Rao , [ (2012) 9 SCC 512 ] , wherein it is held that if there is no prima facie evidence or the evidence is totally unworthy of credit, it is the duty of the Magistrate to discharge the accused. 26. 26. Per contra, learned Standing Counsel for CBI relied upon the judgment of Hon’ble Supreme Court in R. Soundirarasu (cited supra) and contended that when the facts and circumstances of the instant case are considered in the backdrop of the scope and ambit of Section 239 of Cr.P.C., the petitioners can be discharged when a complete reading of material placed before the Magistrate gives rise to conclusion that the offences alleged are baseless. 27. In the instant case, the primary allegations are cheating, criminal breach of trust and forgery. The factum of whether the property hypothecated to the de facto complainant while purchasing 300 kgs of gold irrespective of part payment when transferred to one Tippu Soni without the knowledge and consent of the de facto complainant amounts to cheating and criminal breach of trust are triable issues and there is prima facie case until proven otherwise. 28. The next issue of forged letter purported to be issued by the State Bank of India for seeking a reduced interest rate is also a triable issue subject to CBI producing relevant evidence before the CBI Court. When there is prima facie case there is no ground to arrive at conclusion that the material placed on record does not give any scope whatsoever for trial of offences alleged. The learned CBI Court has made an extensive study of the facts and circumstances of the case, coupled with the documents produced along with the charge sheet and arrived at right conclusion that discharge at this stage is not warranted. This Court finds no reason to interfere with the said findings and therefore, the present revision is liable to be dismissed. 29. In the result, the Criminal Revision Case is dismissed confirming the impugned order dated 30.08.2024 in Crl.M.P.No.403 of 2018 in C.C.No.23 of 2018 on the file of the CBI Court. There shall be no order as to costs. Miscellaneous applications, if any, pending shall stand closed.