INGREDIENTS OF OFFENCE NOT SATISFIED

According to the provisions of Sec 405, IPC the provisions for criminal breach of trust are attracted only upon fulfilment of the following ingredients as given in Anwar Chand Sab Nandikar -vs- State of Karnatka 2003 (10) SCC 521: The ingredients of the offence of criminal breach of trust are :- (1) Entrusting any person with property, or with any dominion over property. (2) The person entrusted (a) dishonestly misappropriating or converting to his own use that property, or (b) dishonestly, using or disposing of that property or wilfully suffering any other person so as to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged; or (ii) of any legal contract made touching the discharge of trust. The basic requirement to bring home the accusations under Section 405 are the requirements to prove con-jointly (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 regards the offence of cheating, the Supreme Court, in a large number of decisions, has held that the intention to cheat, i.e deception or fraudulent inducement to deliver property, should exist from the inception. In Shankar Gopalika v. State of Bihar,(2005) 10 SCC 336, the Supreme Court held that: 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.[ Other ingredients for cheating: That representation made by accused was false That the accused knew that representation was false at the very time when he made it That the accused made the false representation with the dishonest intention of deceiving the person to whom it was made( dishonest intention must be from the very beginning) That the accused thereby induced the person to delivery any property or to do or to omit to do something which he would otherwise not have done or omitted.( however, deception should precede dishonest inducement and it must be established that the intention of the accused was dishonest at the time of making the promise.[footnoteRef:2] ] [2: Shyam Sunder Gupta vs State of UP, 1985 CrLJ 1674(All).]

Since, the purported ingredients for commission of the offence have not been satisfied, it is humbly submitted that the application for discharge maybe admitted by the court GROUNDS TO ALLOW DISCHARGE APPLICATION ARE FULFILLEDThe court may under Sec. 239 of CRPC discharge an accused before commencement of trial if it establishes that there is No sufficient ground for proceeding against the accused[footnoteRef:3] Facts taken at their face value must disclose the existence of all the ingredients constituting the alleged offence for continuation of trial.[footnoteRef:4] [3: SEE SEC. 227, CRPC] [4: NiranjanSingh Karam Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya and Others etc. (1990) 4 SCC 76]

In Union of India vs. Prafulla Kumar Samal and Another, (1979) 3 SCC 4 , the scope of Section 227 of the Cr.P.C. was considered. After adverting to various decisions, this Court has enumerated the following principles(or grounds): (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been madeout. [ Also reiterated in - Satish Mehra vs. Delhi Administration and Another, in the said decision it is held: -"The object of providing such an opportunity as is envisaged in Section 227 of the Code is to enable the Court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the Court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that sessions Judge would be within his power to consider even materials which the accused may produce at the stage contemplated in section 227 of the Code."

In Niranjan Singh Karam Singh Pubjabi etc. v. Jitendra Bhimraj Bijjayya and Others etc. (1990) 4 SCC 76, it was held that the Court may peruse the records for the limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh (1977) 4 SCC 39, Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 and Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja (1979) 4 SCC 274, and held thus: "From the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose shift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case."](2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. [ GRAVE SUSPICION also discussed in Central Bureau of Investigation, Hyderabad Vs. K. Narayana Rao[footnoteRef:5] : If two views are possible and one of them gives rise tosuspicion only, as distinguished from grave suspicion, theTrial Judge will be empowered to discharge the accused if he is not under grave suspicionand at this stage he is not to see whether the trial will endin conviction or acquittal.] [5: [Criminal Appeal No. 1460 of 2012 arising out of S.L.P. (CRL.) No. 6975 of 2011]]

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.In Dilawar Balu Kurane vs. State of Maharashtra,(2002) 2 SCC 135, the principles enunciated in Prafulla Kumar Samal (supra) have been reiterated and it was held:12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

FOR DISCHARGE UNDER SEC 239 ALSO REFER TO FOLLOWING CASES:1.State of Karnataka v. L. Muniswamy AIR 1977 SC 14892.State of Maharashtra and Ors. v. Som Nath Thapa and Ors. AIR 1996 SC 17443.Omwati and Anr Vs. State AIR 2001 SC 15074.Kanti Bhadra Shah and Anr. Vs. State of W.B. AIR 2000 SC 5225.Stree Atyachar Virodhi Parishad Vs. Dilip N. Chartia 1989 (1) SCC 7156.State of Bihar vs. Ramesh singh AIR 1977 SC 20187.Supdt. S. Remembrancer of legal affairs W.B. Vs. Anil Kumar Bhunja- AIR 1989 SC 528.Satish Mehra Vs. Delhi Admn. (1996)9 SCC 7669.State of M.P. v. Mohanlal Soni AIR 2000 SC 2583