N.N. Sharma, J.
1. Both these cases are connected and are being disposed of by this common order.
2. It appears that the reliefs sought in criminal revision and this petition are similar. The prayer in the criminal revision was to set aside the impugned order of learned Magistrate dt. 5-10-1982 by which he rejected the application of-revisionist to discharge her of the offence under Section 406, IPC in Case No. 452 of 1982. This revision was filed on 20-10-1982.
3. Since the charge has already been drawn in that case and the order was Interlocutory so the petition under Section 482, Cr.PC was filed to quash the aforesaid criminal proceedings No. 496 of 1981 pending in the Court of Judicial Magistrate IV, Allahabad.
4. It appears that the proceedings commenced on the complaint dt. 27-4-1981 by Sri Krishna Kumar Jauhari who came to the Court with the allegations that the parties belonged to respectable families and were remotely connected ; complainant was resident of Allahabad and Smt. Jairani Devi who originally belonged to AJJahabad lives in Lucknow at the place of her husband late Sri Krishna Dass, a resident of Lucknow.
5. It was averred that on account of family relationship and status of parties ; a sum of Rs. 10.000/- was entrusted to the lady accused by the complainant in cash on 15-10-1969 ; another amount of Rs. 10,000/- was deposited with the lady on 27-10-1969 at the house of complainant in Allahabad.
6. Two separate receipts about both these transactions were executed by the lady on 25-10-1969 and 27-10-1969 in her handwriting which had been made over to the complainant after being duly signed by her. Complainant wanted to save this money from partition. It was a case of entrustment but the amount was misappropriated by the lady and was not paid despite the repeated demands and so he was obliged to file a Civil Suit No. 114 of 1978 for recovery of the same in the Court of Civil Judge, Allahabad.
7. In the said suit a written statement was filed by the lady on 25-12-1975 which is Annex.-B of the Misc. application ; so this complaint under Section 406, IPC was instituted on 27-4-1981 by the complainant against the accused.
8. Parties filed various document to substantiate their contentions. Learned Magistrate refused to discharge the accused and framed a charge against her. Under such circumstances lam not called upon to go into the merits of the revision preferred against the interlocutory order which is tarred by Section 397, Sub-Clause (2), Cr.PC. This point came up for consideration in K.L. Sachdeva v. Rakesh Kumar Jain reported in (J983) 2 Crimes 821 (822) : (1983 All LJ 1087) where it was observed :
When a charge is attacked on the merits of the main controversy in the complaint, as to whether or not the accused had committed the offence, the order framing the charge would be an interlocutory order. Such an order cannot be questioned on revision under Section 397 of the Cr.PC. It may be so done under Section 482, Cr.PC.
9. It is a well discussed judgment and I respectfully agree with the reasons detailed by brother B.D. Agarwala, J. in it. So the revision No. 2031 of 1982 is dismissed herewith.
10. As regards the Misc. Petition under Section 482, Cr.PC. I have given above the facts detailed in the complaint which is Annex.- 1 of Criminal Revision No. 2031 of 1982. Learned Advocate for the opposite party argued before me that it is not open to this Court to go beyond the language employed in the complaint. The guiding principles in this connection were laid down in R.P. Kapur v. State of Punjab reported in : 1960CriLJ1239 where it was observed :
Some of the categories of cases where the inherent jurisdiction to quash proceedings can and should be exercised are :
(i) Where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged. Absence of the requisite sanction may, for instance, furnish cases under this category.
(ii) Where the allegations in the First Information Report or the complaint even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged ; in such cases no question of appreciating evidence arises ; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not.
(iii) Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained.
Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under Section 561-A in the matter of quashing criminal proceedings.
Thus, the guidelines were laid in the said authority about the scope of inherent jurisdiction of High Court for interference under Section 561-A of the Cri.PC. I have detailed above the respective dates of the transactions and filing of this suit.
11. In this connection I have carefully perused the statement of the complainant recorded under Section 200, Cr.PC and the letters which were exchanged amongst the parties. It is admitted that a criminal case could be initiated within three years of the date of commission of the offence by the complainant vide Section 468, Cr.PC. Section 469, Cr.PC provides for the commencement of period of limitation. It should be within three years of the date of offence or under Section 469(l)(b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier. There are on record notices served on the accused by the complainant through his Advocate Sri M. P. Misra which are Annexures-F, D and Fl. At page 45 it is specifically mentioned that if the amount remained unpaid within a week of the demand through a notice dt. 9-10-1976 proceedings in the Criminal Court under Section 406, IPC. would commence within a week positively. This is a clear admission of the complainant himself which shows that the offence came well within his knowledge on 9-10-1976 and he should have filed the complaint well within three years of the period of limitation, that he did not do. Hence the complaint is hopelessly barred by time as was laid down in clear terms in State of Punjab v. Sarwan Singh reported in : 1981CriLJ722 which posited :
The object of Criminal PC in putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the Court by filing vexatious and belated prosecutions long after the date of the offence. The object which the statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution. It is, therefore, of the utmost importance that any prosecution, whether by the State or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation Cri Revn. No. 342 of 1980, D/- 8-4-1980 (Punj and Har), Affirmed.
I have carefully perused the facts of this case which are in point. In view of the said authority it is obvious that it was not open to the Court concerned to take cognizance of this offence created by Section 468, Cr.PC after expiry of period of limitation. For this reason the Misc. Petition has to be allowed.
12. Coming to the next point on merits, the two receipts are couched in following terms :
I have received Rs. 10,000/- in cash from Sri K.K. Jauhari 21, Jauharitola, Allahabad : this amount wholly remains entrusted with me ; on demand after furnishing receipt the amount shall be refundable. This is annex.-Dl, at page-35 of the petition ; another receipt dt. 27-10-1969 is annex.-D2 which employed the same language. It bears the signatures of Smt. Jairani Devi. The sole question to be determined is whether the deposit was entrustment and whether its use by lady amounted to a criminal breach of trust as defined by Section 405 of the IPC. The essential ingredients of the offence of entrustment are : (1) That it should be entrustment of property or dominion over property in any manner (2) it must be held by the accused on behalf of another in his capacity as trustee ; (3) it has to be taken in capacity for specific purpose ; unless these ingredients are satisfied it is not possible to attract the operation of Section 406, IPC.
13. There are on record the statements of complainant under Sections 200 and 244, Cr.PC which go to disclose that the amount during use by the accused ceased to be property of the complainant Ext. E-l the letter of accused to complainant at page 40 shows that the amount carried interest also. In his statement recorded under Section 244, Cr.PC. Annex.-C ranging from pages 26 to 34 complainant tried to explain that the payments made by the accused were adjustable towards the interest of loan which was unconnected with these deposits but which were other advances made to her in 1972 by the sons of complainant Ajit Kumar, Anit Kumar and Nishit Kumar and his wife. It was to refute the correspondence and written statement filed by Smt. Jairani Devi to show that the complainant has already been overpaid this amount along with interest and it was simply a betrayal of the confidence reposed in him by this literate lady who was not well versed in forensic affairs. So the mere use of the word Amanat in the two receipts aforesaid cannot make it a transaction of entrustment when no specific purpose was laid down. The question whether the complainant entrusted the property to aceused depends upon the actual facts of the case and not merely upon the legal terms employed by the parties. If the real nature of the transaction is a loan, the fact that the parties in writing call it a trust it could not attract the offence of criminal breach of trust vide Karamali Manji v. Emperor reported in (1938) 39, Cri LJ 399 : AIR 1938 Sind 57. In order to constitute 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 any legal direction or of any legal contract and thirdly the misappropriation or conversion or disposal must be with dishonest intention. Every payment of money by one person to another does not amount to entrustment unless there are circumstances attending it from which one can gather that it was an entrustment and not a mere payment vide x v. V. Krishnan reported in : AIR1940Mad329 . So no offence of embezzlement was made out on the language employed in the complaint. Thus it was clearly an abuse of the process of the Court calculated to coerce and harass the lady. However, the rights of parties shall be determined by the Civil Court and not by Criminal.Court. So I refrain to express myself on merits about the respective versions put forward by the parties.
14. In the result Criminal Revision No. 2031 of 1982 is dismissed. Criminal Misc. Case No. 4517 of 1983 is allowed. Proceedings in case No. 496 of 1981, under Section 406, IPC pending in the Court of Judicial Officer IV, Allahabad against Smt. Jahani Devi on the complaint of Sri K.K. Jauhari are quashed.