JUDGMENT : ANIL KUMAR CHOUDHARY , J. 1. 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 and set aside the FIR dated 03.02.2021 in connection with Ranchi Kotwali P.S. Case no.31 of 2021 registered for the offences punishable under Section 409 , 420 and 120-B of the INDIAN PENAL CODE and entire criminal proceeding arising out of the same pending in the Court of learned Chief Judicial Magistrate, Ranchi. 3. The brief fact of the case is that the petitioners are the officers of Punjab National Bank. The undisputed case of the informant/opposite party no.2 is that the informant/opposite party no.2 took loan from Punjab National Bank by creating an equitable mortgage as collateral security by depositing the title documents of the property with the bank. It is the case of the informant that after repayment of the loan, the title document of the property was to be returned back to the informant/opposite party no.2, but the petitioners in criminal conspiracy with each other did not hand over the title documents of her property and thereby they have committed the offence of criminal breach of trust and cheating by a banker; whereas it is the case of the petitioners that the husband of the informant/opposite party no.2 namely Mukhtiyar Singh Namdhari is the proprietor of M/s Shree Pratap Distributors and M/s Shree Pratap Distributors availed a cash credit facility and the informant/opposite party no.2 stood guarantor against the said cash credit facility and also executed a letter of continuity by extending the collateral security of her property to cover the cash credit facility given by the said Punjab National Bank to M/s Shree Pratap Distributors of which her husband was the proprietor. The undisputed facts remains that though the FIR was registered on 03.02.2021 after bank officials resorted to the proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) Act by publication of notice under Section 13 (2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) and the notice under Section 13 (4) of the ‘SARFAESI’ Act was published on 08.12.2020 and the possession notice was published on 20.01.2021 and the said possession notice was published in the daily Hindi newspaper “Prabhat Khabar” on 21.01.2021. The informant/opposite party no.2 instead of approaching the competent authority under the ‘SARFAESI’ Act, unlike her husband Mukhtiyar Singh Namdhari who filed a ‘SARFAESI’ Application No.18 of 2021 in the Debt Recovery Tribunal under Section 17 (1) of the ‘SARFAESI’ Act and the brother-in-law of the informant namely Mr. Gulzar Singh Namdhari, the proprietor of M/s Namdhari Medical Agency, who filed SARFAESI Application No.19 of 2021; instead of filing any application under the SARFAESI Act, the informant/opposite party no.2 chose to lodge this FIR. 4. Learned counsel for the petitioners submit by drawing attention of this Court to the judgement of the Hon’ble Supreme Court of India in the case of K. Virupaksha and Others vs. The State of Karnataka and Others reported in (2020) 4 SCC 440 , paragraph-15 and 17 of which reads as under:- “15. The Sarfaesi Act is a complete code in itself which provides the procedure to be followed by the secured creditor and also the remedy to the aggrieved parties including the borrower. In such circumstance, as already taken note of by the High Court in writ proceedings, if there is any discrepancy in the manner of classifying the account of the appellants as NPA or in the manner in which the property was valued or was auctioned, DRT is vested with the power to set aside such auction at the stage after the secured creditor invokes the power under Section 13 of the Sarfaesi Act. This view is fortified by the decision of this Court in Indian Overseas Bank v. Ashok Saw Mill [Indian Overseas Bank v. Ashok Saw Mill, (2009) 8 SCC 366 : (2009) 3 SCC (Civ) 403] wherein it is held as hereunder: (SCC pp. 375-76, paras 34-37) “34. This view is fortified by the decision of this Court in Indian Overseas Bank v. Ashok Saw Mill [Indian Overseas Bank v. Ashok Saw Mill, (2009) 8 SCC 366 : (2009) 3 SCC (Civ) 403] wherein it is held as hereunder: (SCC pp. 375-76, paras 34-37) “34. The provisions of Section 13 enable the secured creditors, such as banks and financial institutions, not only to take possession of the secured assets of the borrower, but also to take over the management of the business of the borrower, including the right to transfer by way of lease, assignment or sale for realising secured assets, subject to the conditions indicated in the two provisos to clause (b) of sub-section (4) of Section 13 . 35. In order to prevent misuse of such wide powers and to prevent prejudice being caused to a borrower on account of an error on the part of the banks or financial institutions, certain checks and balances have been introduced in Section 17 which allow any person, including the borrower, aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor, to make an application to the DRT having jurisdiction in the matter within 45 days from the date of such measures having taken for the reliefs indicated in sub-section (3) thereof. 36. The intention of the legislature is, therefore, clear that while the banks and financial institutions have been vested with stringent powers for recovery of their dues, safeguards have also been provided for rectifying any error or wrongful use of such powers by vesting the DRT with authority after conducting an adjudication into the matter to declare any such action invalid and also to restore possession even though possession may have been made over to the transferee. 37. The consequences of the authority vested in the DRT under sub-section (3) of Section 17 necessarily implies that the DRT is entitled to question the action taken by the secured creditor and the transactions entered into by virtue of Section 13 (4) of the Act. The legislature by including sub-section (3) in Section 17 has gone to the extent of vesting the DRT with authority to even set aside a transaction including sale and to restore possession to the borrower in appropriate cases. The legislature by including sub-section (3) in Section 17 has gone to the extent of vesting the DRT with authority to even set aside a transaction including sale and to restore possession to the borrower in appropriate cases. Resultantly, the submissions advanced by Mr Gopalan and Mr Altaf Ahmed that the DRT has no jurisdiction to deal with a post- Section 13 (4) situation, cannot be accepted.” 17. The appellants herein had also referred to the provision as contained in Section 32 of the Sarfaesi Act which provides for the immunity from prosecution since protection is provided thereunder for the action taken in good faith. The learned Senior Counsel for the complainant has in that regard referred to the decision of this Court in Army Headquarters v. CBI [Army Headquarters v. CBI, (2012) 6 SCC 228 : (2012) 3 SCC (Cri) 88] to contend that the defence relating to good faith and public good are questions of fact and they are required to be proved by adducing evidence. Though on the proposition of law as enunciated therein there could be no cavil, that aspect of the matter is also an aspect which can be examined in the proceedings provided under the Sarfaesi Act. In a circumstance, where we have already indicated that a criminal proceeding would not be sustainable in a matter of the present nature, exposing the appellants even on that count to the proceedings before the investigating officer or the criminal court would not be justified.” that the SARFAESI Act is a complete code in itself which provides the procedure to be followed by the secured creditor and also the remedy to the aggrieved parties including the borrower. 5. Learned counsel for the petitioners next relies upon the judgment of this Court in the case of Dhirendra Kumar Singh @ Dheeraj Kumar Singh & Another vs. State of Jharkhand & Another in Cr.M.P. No.2217 of 2021 dated 23.03.2023 and submits that in that case this Court relied upon the judgment of the Hon’ble Supreme Court of India in the case of Priyanka Srivastava and Another vs. State of Uttar Pradesh and Others reported in (2015) 6 SCC 287 , para-27 and 33 of which reads as under:- “27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the Bank. We are absolutely conscious that the position does not matter, for nobody is above the law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the Sarfaesi Act, invokes the jurisdiction under Section 156(3) CrPC and also there is a separate procedure under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to.” 33. At this juncture, we may fruitfully refer to Section 32 of the Sarfaesi Act, which reads as follows: “32.Protection of action taken in good faith.—No suit, prosecution or other legal proceedings shall lie against any secured creditor or any of his officers or manager exercising any of the rights of the secured creditor or borrower for anything done or omitted to be done in good faith under this Act.” In the present case, we are obligated to say that the learned Magistrate should have kept himself alive to the aforesaid provision before venturing into directing registration of the FIR under Section 156(3) CrPC. It is because Parliament in its wisdom has made such a provision to protect the secured creditors or any of its officers, and needless to emphasise, the legislative mandate has to be kept in mind.” and submits that the protection provided under Section 32 of the SARFAESI Act, can be pressed in service in appropriate cases for quashing the FIR. 6. Learned counsel for the petitioners next submits that the title documents of a property is not a property in itself. 6. Learned counsel for the petitioners next submits that the title documents of a property is not a property in itself. It is then submitted that since it is the case of equitable mortgage, the property mortgaged was in enjoyment of the informant/opposite party no.2 herself and the same never came to the possession of the petitioner until and unless the possession notice was published on 20.01.2021, so on the date of creation of the equitable mortgage, it cannot be said that there was no entrustment of the property by any of the officers of the Punjab National Bank itself, and in the absence of entrustment of any property, the offence punishable under Section 409 of the INDIAN PENAL CODE is not made out. 7. Learned counsel for the petitioners further submit that in order to constitute the offence punishable under Section 420 of the INDIAN PENAL CODE , the essential ingredients are that the accused must play deception since the beginning of the transaction between the parties. Now, the beginning of the transaction between the parties is the first loan availed by the informant/opposite party no.2 and admittedly, there was no deception played by any of the petitioners at the time of availing of the said loan by the informant/opposite party no.2, hence, in the absence of this essential ingredient to constitute the offence of cheating even if the allegations made against the petitioners are considered to be true in their entirety, still the offence punishable under Section 420 of the INDIAN PENAL CODE is not made out. 8. In support of their contention, the petitioners also relied upon the judgement of the Hon’ble Supreme Court of India in the case of Mahmood Ali and Others vs. State of U.P. and Others passed in Criminal Appeal No.2341 of 2023 dated 08.08.2023 arising out of SLP(Crl.) No.12459 of 2022 and submits that the Courts while exercising the power under Section 482 of Cr.P.C. owes a duty to look into many attending circumstances in frivolous or vexatious proceedings emerging from the record of the case over and above the averments made and, if need be, with due care and circumspection try to read in between the lines. The learned counsel for the petitioner next relied upon the Judgement of the Hon’ble Supreme Court of India in the case of Delhi Race Club (1940) Ltd. and others vs. State of Uttar Pradesh and Others reported in MANU/SC/0934/2024 wherein in para-28 of the judgment, the Hon’ble Supreme Court of India has held that every act of breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of manipulating act of fraudulent misappropriation. 9. Learned counsel for the petitioners then submit that nowhere the informant/opposite party no.2 has disputed her signature on any of the documents executed by her in favour of the bank. It is next submitted by drawing attention of this Court to the Judgment dated 12.10.2023 passed by the Presiding Officer, Debts Recovery Tribunal for the State of Jharkhand in O.A. Case no.82 of 2022 submits that the informant/opposite party no.2 is the defendant no.7 of that case and the Debts Recovery Tribunal which is the competent forum has allowed the said Original Application ex-parte consequent upon the defendants of the case including the informant/opposite party no.2, though were afforded ample opportunity, but they chose not to appear before the Debts Recovery Tribunal and has held that the appellant bank i.e. Punjab National Bank is entitled to receive from the defendant jointly and severally Rs.5,58,03,936.49/-(Rupees five crore fifty eight lakh three thousand nine hundred thirty six and paisa forty eight only) as on 24.12.2021, together with pendente lite and future interest @ 15.30% p.a. with monthly rests from 25.12.2021, till realization in full and submits that competent forum has also adjudicated the dispute against the petitioners weighing the evidence in the scale of preponderance of probability. 10. Learned counsel for the petitioners next submit that consequent upon the said judgement passed by the Presiding Officer, Debts Recovery Tribunal for the State of Jharkhand in O.A. Case no.82 of 2022, the informant/opposite party no.2 along with her husband and others has approached the Punjab National Bank with one time settlement offer. 10. Learned counsel for the petitioners next submit that consequent upon the said judgement passed by the Presiding Officer, Debts Recovery Tribunal for the State of Jharkhand in O.A. Case no.82 of 2022, the informant/opposite party no.2 along with her husband and others has approached the Punjab National Bank with one time settlement offer. In this respect, the learned counsel for the petitioners draws attention of this Court to the letters submitted by the informant/opposite party no.2, her husband and others dated 16.11.2023 and 12.08.2024, which have been annexed as Annexure No.15 and 16 respectively in the supplementary affidavit dated 06.08.2025 filed by the petitioners in this case and submits that on the one hand, the informant is ready for settlement but on the other hand she wants to use this criminal proceeding against the petitioners for the purpose of wrecking vengeance and to use the criminal proceeding as a sword of Damocles over the head of the petitioners, to force them to arrive at a settlement on the terms of the informant, hence, it is lastly submitted that the prayer as prayed for, in this Cr.M.P., be allowed. 11. Learned Spl.P.P. appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer of the petitioners made in the instant Cr.M.P and the learned Spl.P.P. relies upon the judgement of the Hon’ble Supreme Court of India in the case of Kailash Kumar Sanwatiya vs. State of Bihar and another reported in (2003) 7 SCC 399 and submits that in para-7 & 9 of which reads as under:- “7. Section 409 IPC deals with criminal breach of trust by a public servant, or by a banker, merchant or agent. In order to bring in application of the said provision, entrustment has to be proved. In order to sustain conviction under Section 409 , two ingredients are to be proved. They are: (1) the accused, a public servant, or banker or agent was entrusted with property of which he is duty-bound to account for; and (2) the accused has committed criminal breach of trust. 9. In order to sustain conviction under Section 409 , two ingredients are to be proved. They are: (1) the accused, a public servant, or banker or agent was entrusted with property of which he is duty-bound to account for; and (2) the accused has committed criminal breach of trust. 9. The basic requirement to bring home the accusations under Section 405 are the requirements to prove conjointly (1) entrustment, and (2) whether the accused was actuated by the dishonest intention or not; misappropriated it or converted it to his own use to the detriment of the persons who entrusted it. As the question of intention is not a matter of direct proof, certain broad tests are envisaged which would generally afford useful guidance in deciding whether in a particular case the accused had mens rea for the crime.” the Hon’ble Supreme Court of India has discussed in details about the ingredients of the criminal breach of trust by a public servant and submits that in this case, the entire ingredients of the offence punishable under Section 409 of the INDIAN PENAL CODE is made out and since the investigation is going on in this case for more than 4 years, so it will not be proper to quash the entire criminal proceeding. The learned counsel for the informant/opposite party no.2 also opposes the prayer to quash the entire criminal proceeding and submits that the petitioners in criminal conspiracy with each other has committed a grave offence of forging and fabricating the documents and the informant/opposite party no.2 and her husband have filed an appeal in the Debts Recovery Tribunal, Allahabad, of course, the learned counsel for the informant/opposite party no.2 is not aware about the number assigned to such appeal, hence, the judgement of the Presiding Officer, Debts Recovery Tribunal for the State of Jharkhand in O.A. Case No.82 of 2022 has not attained finality. Therefore, it is submitted that this Cr.M.P., being without any merit, be dismissed. 12. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law that in order to constitute the offence of criminal breach of trust by a banker or public servant, the essential ingredient is entrustment of property or having dominion over the property. The undisputed facts remains that the mortgage which was created by the informant/opposite party no.2 was an equitable mortgage where the dominion of the property remained with the informant/opposite party no.2 exclusively and the informant/opposite party no.2 only handed over the title documents of the property to the petitioners, who were at different times posted in various posts of Punjab National Bank in various capacity. The Hon’ble Supreme Court of India in the case of The State of Gujarat vs. Jaswantlal Nathalal reported in AIR 1968 SC 700 has held that a mere transaction of sale or purchase does not amount to entrustment. 13. Now coming to the fact of the case that mere handing over the title documents of the property to the banker, in the considered opinion of this Court cannot be termed as ‘entrustment’ of the property when the possession and enjoyment of the same remained with the informant/opposite party no.2 as the word ‘entrustment’ used in Section 405 of the INDIAN PENAL CODE . The other ingredient to constitute the offence of criminal breach of trust is that there must be a dishonest misappropriation of the property. There is absolutely no allegation against any of the petitioners of dishonestly misappropriating the property of the informant/opposite party no.2. Taking possession of the property under the provision of the SARFAESI Act, which culminated in the Judgment passed by the Presiding Officer, Debts Recovery Tribunal in O.A. Case No.82 of 2022, cannot be termed as dishonest misappropriation of the property and in the absence of this essential ingredient to constitute the offence of criminal breach of trust, in the considered opinion of this Court; even if the entire allegations against the petitioners are considered to be true in their entirety, still the same is not sufficient to constitute the offence punishable under Section 409 of the INDIAN PENAL CODE . 14. So far as the other penal offence of cheating punishable under Section 420 of the INDIAN PENAL CODE is concerned, it is a settled principle of law that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to the offence of cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating as has been held by the Hon’ble Supreme Court of India in the case of Uma Shankar Gopalika vs. State of Bihar & Another reported in (2005) 10 SCC 336 paragraph-6 of which reads as under:- 6. “Xxxx xxxx xxxx It is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In the present case it has nowhere been stated that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC.” (Emphasis supplied) 15. Now, coming to the facts of the case, the undisputed facts remains that first transaction between the parties is the loan amount, which the informant/opposite party no.2 took by creating an equitable mortgage. There is no allegation of any deception played by any of the petitioners during the course of that transaction, so in the absence of this essential ingredient since the beginning of the transaction between the parties, this Court is of the considered view that even if allegations made against the petitioners are considered to be true in their entirety, still the offence punishable under Section 420 of the INDIAN PENAL CODE is not made out. Otherwise, also keeping in view the undisputed fact that FIR was instituted by the informant/opposite party no.2 only after a possession notice was published in the newspaper in exercise of the power vested upon the secured creditor, in terms of the provision of SARFAESI Act, this is a case where Section 32 of the SARFAESI Act can pressed into service, as has been held by the Hon’ble Supreme Court of India in the case of Priyanka Srivastava and Another vs. State of Uttar Pradesh and Others (Supra). 16. 16. In view of discussion made above, this Court is of the considered view that this FIR has been instituted for wrecking vengeance upon the officers of the Public Sector Bank, hence, this Court is of the considered view that the continuation of this criminal proceeding against the petitioners will amount to abuse of process of law and this is a fit case where the FIR dated 03.02.2021 in connection with Ranchi Kotwali P.S. Case no.31 of 2021 registered for the offences punishable under Section 409 , 420 and 120-B of the INDIAN PENAL CODE and entire criminal proceeding arising out of the same pending in the Court of learned Chief Judicial Magistrate, Ranchi, be quashed and set aside. 17. Accordingly, the FIR dated 03.02.2021 in connection with Ranchi Kotwali P.S. Case no.31 of 2021 registered for the offences punishable under Section 409 , 420 and 120-B of the INDIAN PENAL CODE and entire criminal proceeding arising out of the same pending in the Court of learned Chief Judicial Magistrate, Ranchi, is quashed and set aside qua the petitioners only. 18. In the result, this Cr.M.P., stands allowed. 19. In view of disposal of this Cr.M.P., the interim relief granted earlier vide order dated 25.03.2021 is vacated. 20. Registry is directed to intimate the court concerned forth with.