Holding

The Supreme Court held that the High Court correctly exercised its inherent jurisdiction under CrPC §482 to quash the criminal complaint as the allegations, even if taken at face value, did not constitute an offence under Sections 120‑B and 409 IPC.

Summary

Ashim Kumar Roy, a trade‑union secretary, filed a criminal complaint alleging that Bipinbhai Vadilal Mehta and his son conspired to commit criminal breach of trust and conspiracy (IPC §§120‑B, 409) and violated Section 77 of the Companies Act by diverting company funds to acquire control of Sayaji Industries Ltd. A magistrate found a prima facie case and committed the matter to the Sessions Court. The respondents moved the Gujarat High Court under its inherent jurisdiction (CrPC §482) to quash the complaint, arguing they were not directors at the relevant time and thus could not be liable. The High Court quashed the proceedings, holding the allegations, even if taken at face value, did not constitute an offence. On appeal, the Supreme Court affirmed the High Court’s decision, emphasizing that the essential ingredients of Sections 120‑B and 409 were absent and that the High Court was justified in exercising its inherent power to prevent abuse of process.

Issues considered

Whether the complaint, on its face, discloses an offence under IPC §§120‑B and 409 against the respondents who were not directors at the relevant date.
Whether the High Court can quash criminal proceedings under CrPC §482 when the complaint does not constitute an offence.
Whether the elements of entrustment and dishonest misappropriation required under Section 409 IPC are satisfied.
Whether the High Court exceeded its jurisdiction in quashing the complaint.

Legislation cited

Code of Criminal Procedure, 1973s. 482
Companies Acts. 77
Indian Penal Code, 1860s. 120-B, s. 405, s. 409

Subjects

criminal breach of trustconspiracySection 409 IPCSection 120-B IPCinherent jurisdictionSection 482 CrPCquash proceedingsdirectorscorporate fraudCompanies Actabuse of process

Judgment

A ASHIM KUMAR ROY
v.
BIPINBHAI VADILAL MEHTA AND ORS.

OCTOBER 14, 1997

B [DR. A.S. ANAND AND K. VENKATASWAMI, JJ.)

Indian Penal Code, 1860-Sections 409 and 120-B-Code of Criminal
Procedure, 1973-Section 482-/nherent jurisdiction of High Court-
Criminal case registered against the respondent and committed to the Sessions
C Court for proceeding farther-Complaint prima facie jailed to disclose any
case under Section 409 or I 20-B /PC-Respondents were not even Directors
of the company on the relevant dates of which the transaction complained
of-Held, it would be unjust to allow proceedings to continue and as such,
High Court rightly exercised its inherent jurisdiction to quash the proceeding.
D
The appellant-complainant made a complaint that as per the
memorandum of understanding, the contesting respondents had to discharge
certain liability prior to takeover of the management and control of the
companies and the respondents in order to discharge the said liability, entered
into a conspiracy to commit criminal breach in relation to the funds of the
E company and thereby dishonestly siphoned the public funds of the company.

The Magistrate on the complaint registered a criminal case under
Section 120..B and 409 IPC read with section 77 of the Companies Act against
the respondent and committed the case to the Sessions Court.
F
The respondent moved the High Court against the order of the
Magistrate and the High Court in its inherent jurisdiction quashed the
complaint and the charge against the contesting respondents on the grounds
that on the day on which the offence was said to have been committed by the
contesting respondents, they were not even ordinary Directors much less
G Managing Directors of the company having control and management of the
affairs the company. Hence these appeals.

Dismissing the appeals, the Court.

HELD : 1. The accused respondents No. 1 and 2 could have come into
H 446
A.K. ROY v. B.V. MEHTA [K. VENKATASWAMI, J.] 447

picture only after the transactions complained of had taken place. It was the A
father of the first respondent, who was the Managing Director of the company
when the transactions took place. Respondents No. 1 and 2 could have played ·
no part in that transaction as ·they were not even ordinary Directors at that
time in the company. Therefore the allegations made in the complaint, even if
it is teken in its entirety, do not constitute an offence either under section B
120-B or under Section 409 IPC. Hence it would be manifestly unjust to allow
proceedings in the criminal complaint to be proceeded with against contesting
respondents No. 1 and 2. As such, the High Court has rightly exercised its
inherent jurisdiction under Section 482 Cr. P.C. in quashing the complaint.
(454-F-GJ

R.P. Kapur v. State ofPunjab, AIR (1960) SC 866, held applicable.
c
State of U.P. v. O.P. Sharma, (1996) 7 SCC 705 and State of Bihar v.
Rajendra Agarwal/a, (1996( 8 SCC 164, relied on.

Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre and D
Ors., AIR (1988) SC 709, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 486-
487of1995.

From the Judgment and Order dated 2.12.94 of the Gujarat High Court E
in Cr!. Misc. A. No. 4216/94 with Cr!. R.A. No. 247/1989.

R.K. Jain and S. Sanjanwala and Anil Shrivastava for the Appellant.

Shanti Bhushan, Arun Jaitley, Levang S. Nanavati, Yashank Adhyaru,
V.K. Bhatt, Saurin A. Mehta, Mrs. Nirmala Gupta and Mrs. V.D. Khanna for F
Mis I.M. Nanavati Associates for the Respondents.

Ms. Hemantika Wahi for the State.

The Judgment of the Court was delivered by
G
K. VENKAT ASW AMI, J. These appeals arise out of a complaint filed
by the appellant which was subsequently registered as Criminal Case No. 262/
89. Brief facts leading to the filing of these appeals are given below :-

TI1e appellant who was a General Secretary of Hind Mazd:ior Kisan
Panchayat to which Gujarat Mazdoor Panchayat, a recognised trade union of H
j:

448 SUPREME COURT REPORTS (1997) SUPP. 4 S.C.R..

A a limited company, originally known as Mis. Sayaji Mills Ltd, now known as
Sayaji ·Industries Ltd, is affiliated. According to the appellant/complainant;
respondents I & 2 (hereinafter called the "contesting respondents") have
committed offences under Sections 120-B and 409 !PC read with Section 77
of the Companies Act. The contesting respondents are father and son. One
B Vadilal Lalbhai Mehta was the father of the first respondent Bipinbhai Vadilal
Mehta. One Subhasbhai Vadilal Mehta was the brother of the first respondent
They entered into a memorandum of understanding on 30.1.1982 for dividing
their properties. As per the said memorandum of understanding, the first
respondent's family will be given management and control of Mis. Sayaji
Industries Ltd and Mls.,C.V. Mehta Pvt. Ltd. On the other hand, the management
C and control of other companies, namely, Mis Industrial Machinery
Manufacturers Pvt. Ltd, Mis C. Doctor. & Co. Pvt. Ltd. shall remain with
Subhash Bhai Mehta, brother of the first respondent. As per the terms of the
memorandum, the liabilities of Mis. C.V. Mehta Pvt. Ltd. towards other concerns
amounting to Rs. 39 lacs and odd was to be discharged by the first respondent
and his family and only after the clearance of the said liability, the first
D respondent and his family could take over the management and control of the
companies allotted to them. It was alleged by the appellant in the complaint
that the contesting respondents had no funds with them to discharge the
liability allotted to them and they could not also raise funds to be deposited
with Mis. C.V. Mehta Pvt. Ltd. within the stipulated period, namely, February
E to November, 1982. Therefore, a modification to the memorandum of
understanding was entered into between the same parties on 13.11.1982. As
per the modified memorandum of understanding, it was agreed that the
contesting respondents will deposit Rs. 20 lacs immediately with Mis. C.V.
Mehta Pvt. Ltd. in order to acquire the shares of Mis. Sayaji Industries Ltd
and thereby gain management and control of Mis. Sayaji Industries Ltd.
F (hereinafter referred to as the 'Company'). In order to discharge the liability
as per the modified memorandum of understanding, it is the specific case of
the appellant that the contesting respondents entered into a conspiracy to
commit criminal breach in relation to the funds of the company and thereby
dishonestly siphoned the public funds to the detriment of the shareholders
G and the employees of the company. The appellant explaining the act of alleged
conspiracy has stated in the complaint that the contesting respondents diverted
the funds of the company in a clandestine manner by manipulating and
tempering the records and accounts and caused the wrongful gain in so
transferring the funds of the company by making advances to a supplier
Mis. Santosh Starch Products Ltd. by three different cheques drawn on
H Punjab National Bank. It was further alleged that the accused persons in
A.K. ROYv. B.V. MEHTA [K. VENKATASWAMI, J.] 449

furtherance of the conspiracy made it to appear that Mis. Santosh Starch A
Products advanced a loan of Rs. 20 lacs on 13.11.1982 by three cheques in
favour ofBipin Mehta who in tum ploughed the amount in Mis. C.V. Mehta
Pvt. Ltd. to discharge the liability undertaken by him as per the modified
memo of understanding. In this process, the contesting respondents acquired
the control and management of M/s. Sayaji Industries Ltd. Inasmuch as the B
funds of the company were utilised in the manner aforesaid, according to the
appellant, the contesting respondents have violated Section 77 of the
Companies Act. In addition, it was the case of the complainant that the
contesting respondents have also committed offences punishable under
Section 120-B and 409 of IPC.
c
On receipt of such complaint, the Judicial Magistrate, First Class,
Ahmadabad (Rural) conducted an inquiry under Section 202 Cr. P.C. The
learned Magistrate recorded statements of four witnesses. After considering
the deposition of the said four witnesses and also the documents produced
before him, the Magistrate was of the opinion that prima facie a case against
the contesting respondents was made out for the offences punishable under D
Section 120-B and 409 IPC read with Section 77 of the Companies Act.
Learned Magistrate was also of the view that the case has to be tried by the
Sessions Court and accordingly he committed the case under Section 323 of
Cr. P.C. to Sessions Court.
E
The contesting respondents previously moved the Sessions Court for
anticipatory bail while the proceedings were pending before the Magistrate.
The learned Sessions Judge rejected that application for anticipatory bail. The
contesting respondents moved the Gujarat High Court against the order of
the Sessions Judge declining to grant anticipatory bail and also against the
order of the Magistrate registering the case and committing the same for F
proceeding further by the Sessions Court. These two cases, namely, Criminal
Revision Application No. 247/89 and Criminal Miscellaneous Application No.
4216 of 1994 came up for consideration before the High Court.

Before the learned single Judge, it was conceded by the learned counsel G
appearing for the complainant that the warrant issued against the contesting
respondent for the offence punishable under Section 77 of the Companies Act
was uncalled for and that the order of committing criminal case to the Sessions
Court was also not proper~ In view of these concessions, the High Court
confined the dispute as to whether the warrant issued against the contesting
respondents for the offences punishable under Section 120-B and 409 was H
450 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A justified. The learned Judge by his detailed and considered order dated
2.12.94 held that the order passed by the learned Magistrate was without
application of mind and that on the day on which the offence was said to
have been committed by the contesting respondents, they were not even
ordinary Directors much less Managing Directors of the company having
control and management of the affairs of the company. On the other hand,
B the learned Judge held on facts that it was established, it was the father of
the respondent no. 1 who was the Chairman and Managing Director of the
company on the relevant date and he was not impleaded as a party. The
company also was not impleaded as a party. The learned Judge further found
that the complaint was at the instance of somebody to settle his score with
C the contesting respondents and it was a clear case of deliberate attempt on
the part of the complainant to use the machinery of the court for an oblique
purpose. The learned Judge also found that the chances of ultimate conviction
are bleak and therefore, no useful purpose will be served by allowing the
criminal prosecution to continue. In coming to this conclusion, the learned
Judge placed reliance on a judgment of this Court in Madhavrao Jiwaji Rao
D Scindia and Another v. Sambhajirao Chandrojirao Angre and Others, AIR
(I 988) SC 709. In the result, the learned Judge allowed the applications and
quashed the complaint and charge against the contesting respondents.

Aggrieved by the common order of the High Court, the present appeals
E by special leave are preferred.

Mr. R.K. Jain, learned Senior Couns~l appearing for the appellant,
submitted that when the money was advanced from the funds of the company,
it was for a definite purpose of getting it back to discharge the personal
liability and this is sufficient to constitute an offence under Section 409. He
' F further submitted that even though the contesting respondents were_ not in
actual control and management of the company on the relevant date, they
were in de facto control of management of the company and that was sufficient
for making them liable under Section 409. In any case that was a matter for
evidence and not a case for quashing. He emphasized that contesting
G respondents held dominion over the company's funds and the company
having 67% ·public money, the transaction in question coupled with the
manner in which it was carried out clearly or at least prima facie bring out an
offence under section 409 punishable under Section 120-B !PC. He further
emphasized about the limited jurisdiction of the High Court under Section 482
of the Code of Criminal Procedure and according to him the High Court
H exceeded its jurisdiction in quashing charge and proceeding which was the
A.K. ROYv. B.V. MEHTA [K. VENKATASWAMI, J.] 451
result of preliminary inquiry held under Section 202 of Cr. P.C . A
• Mr. Shanti Bhushan, learned Senior Counsel, appearing for respondent
no. I, on the other hand submitted that all the three findings of the High Court
are well-founded. In addition to that, he also submitted that there was delay
in filing the complaint and the complainant as such has no locus standi to
file the complaint. After referring to Section 405 IPC Mr. Shanti Bhushan B
submitted that the element of entrustment is totally absent in this case as the
accused persons came into picture only after the relevant date and, therefore,
no case was made at all against the contesting respondents under Section 409
and 120.-B IPC. Therefore, the question of registering the complaint will not
arise. According to the learned Senior Counsel, in addition to the absence of C
entrustment aspect, the further ingredient required to make out a case, namely
"with a view to cause wrongful loss or gain" was also not there. The transaction
was a normal one. Advances were given to the regular supplier. The cheques
given by the supplier to the individual by way of loan has nothing to do with
the subject matter of complaint and the whole thing was misconceived by the
complainant. D
According to the learned Senior Counsel, the High Court was right in
quashing the proceedings.

Mr. Arun Jaitley, learned Senior Counsel, for the second respondent,
adding to the submissions of Mr. Shanti Bhushan, highlighted that on the E
relevant date, namely, 13 .11.1982, contesting respondents were not in control
or management of the company and they were not even de facto directors and
according to the memorandum of understanding, both original and modified,
the accused came into picture only after the discharge of the liability and not
earlier to that. Therefore, the accused, if at all, could take over the control and F
management of the company only after the transaction complained of was
over. Therefore, the High Court was right in quashing the proceedings. He
•
also emphasized that the complaint was to achieve an oblique purpose and
the High Court was right in observing that there was somebody behind the
appellant.
G
Mr. Jain in reply to the argument submitted that under Section 409 IPC,
there is no question of limitation and in any case the complainant has explained
the delay in moving the court. He also submitted that the complainant has
locus standi to prefer the complaint.

We have carefully scrutinised the complaint and the documents and H
452 SUPREME COURT REPORTS (1997] SUPP. 4 S.C.R.

A considered the arguments advanced by the counsel on both sides. We are of
t.he view that the High Court was right in exercising the power under Section
482 Cr. P.C. and quashing the proceedings in this case. As noticed above, the
High Court has given mainly three reasons in support of its conclusion. We
feel that out of three reasons by the High Court the one reason with which
B we propose to deal wilth is more than sufficient to sustain the order of the
High Court. Before giving our reasons, it is necessary to extract the relevant
portions from the complaint itself. The pivotal point in the complaint finds a
place in paragraph 8 of the complaint, which reads as follows :-

"These accused persons in furtherance of the conspiracy made advances
c to a supplier Mis Santosh Starch Products situate at 71, New Cloth Market,
Ahmedabad, as under :-

Amount Rs. Date Cheque No. Bank's name

10.00 lacs 13.11.82 853901 PNB, Maskati Mkt.
D Branch

5.00 lacs "do- 853902 -do-

5.00 lacs 25.11.82 853934 -do-

E thus the accused persons in furtherance of conspiracy diverted the funds of
Mis Sayaji Industries Ltd. to Mis Santosh Starch Products to the tune of
Rs. 20.00 lacs. The complainant has also learnt that Mis Santosh Starch
Products had actually advanced Joans to the concerns of accused persons
Mis Santosh Starch Product advanced loan ofRs .. 20.00 lacs on 13th November,
F 1982 by different cheques as under :

·Amount Rs. Date Cheque No. Name of Party Bank's name
in lacs

7.00 13.11.82 887275 Bipinbhai PNB
G V. Mehta (HUF)
6.00 -do- 887276 -do- -do-

7.00 -do- 887277 Priyambhai -do-
Bipinbhai
H Mehta
A.K. ROYv. B.V. MEHTA [K. VENKATASWAMl,J.] 453
This transfer of amount from Mis Sant.osh Starch Products as A
loan in their personal accounts and the transfer of funds from Mis
Sayaji Industries limited clearly reflected the dishonest-find fraudulent
intention to take over the management and control of Mis Sayaji
Industries Limited. These accused persons in furtherance of their
conspiracy cleared their liability of making immediate payment of Rs. B
20.00 lacs. in Mis C.V. Mehta Pvt. Ltd. as part payment of the total
payment of about Rs. 39.00 lacs and odd and the accused defrauded
company viz. Mis Sayaji Industries Ltd. by transferring the amount of
Rs. 20.00 lacs to Mis Santosh Starch Product. The accused acquired
the controlling interest in the companies shareholders by using funds
of the company itself and thereby violated the provisions of Section C
77 of the Companies Act as well as the Articles of the Association
of the Company. The accused dishonestly and fraudulently made
payment to Mis Santosh Starch Products from Mis Sayaji Industries
Ltd. as well as from Mis Maize Products unit of Sayaji Industries Ltd.
with a view to obtain loan from Mis Santosh Starch Products in their
own personal account. Thus these accused persons in furtherance of D
the conspiracy to take over the management and control of Mis Sayaji
Industries Ltd. illegally and fraudulently siphoned the funds of the
company. Thus the accused achieved their primary objective of taking
over the management and control of Mis Sayaji Industries Ltd.
continued with their· conspiracy in arranging to consolidate control E
and management of Mis Sayaji Industries Ltd. This was done by
acquiring the control and management of Mis C.V. Mehta Pvt. Ltd.
This was very essential to consolidate the control of Mis Sayaji
Industries Ltd. Primarily because Mis C.V. Mehta Pvt. Ltd. owned
approximately 10,000 shares of Mis Sayaji Industries Ltd."
F
Apart from the above, it is also relevant to notice some of the other
allegations in the complaint which are given below :

In paragraph 6, it is stated : "According to this Memorandum of
Modification the accused persons were required to deposit Rs. 20.00 lacs G
immediately with Mis C.V. Mehta Pvt. Ltd. in order to acquire first the shares
~f Mis Sayaji Industries Ltd.

In paragraph 7, the complainant has stated : "These accused persons
with a dishonest and fraudulent intention, with a view to acquire and gain
the management and control of Mis Sayaji Industries Ltd. diverted the funds H
454 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A of the company in a clandestine manner.

The complainant/appellant herein in his affidavit in reply before the
High Court in Cr!. Misc. Application No. 2627 of 1988, inter alia, had stated
thus :

B "The said document also contained a recital that transfer of the
management of Sayaji Mills Ltd. and the appointment of Shri
Bipinbhai Vadilal Mehta and Shri Pribambhai Bipinbhai Mehta on
the Board of Directors thereof are only to be made after Shri
Bipinbhai Vadilal Mehta has paid and brought in C. V Mehta Pvt.
Ltd the sum of Rs. 20.00 lacs. No doubt this document has been
c signed on 13th November, 1982 but it clearly transpires that move for
this modification must have started prior to 13th November, 1982 and
both the petitioners having finalised the deal with Mis Santosh Starch
Products Pvt. Ltd. to obtain loan of Rs. 20.00 lacs in their private and
personal capacity, the document came to be executed on 13th
D November, 1982." Here the complainant has speculated also.

A cursory.reading of the complaint, in particular the extracts especially
the underlined portion as given above, will clearly show that the contesting
respondents (accused) will come into picture only after the liability
contemplated under the modified memorandum of understanding was
E discharged. In other words, the accused respondents I and 2 could have
come into picture only after the transactions complained of had taken place
and as noticed above it was the father of the first respondent, who was the
Managing Director of Sayaji Industries Ltd. when the transactions in question
took place. The respondents Nos. I and 2 could have played no part in that
F transaction as they were not even ordinary Directors at that time in Mis Sayaji
Industries Ltd. Therefore, the allegations made in the complaint even if it is
taken in its entirety still they do not constitute an offence either under
Sections 120-B and 409 JPC. In the circumstances. It would be manifestly
unjust to allow the proceedings in the criminal complaint to be proceeded with
against respondents I and 2.
G In this connection, though it is very well settled that the power under
Section 482 Cr. P.C. should be sparingly invoked with circumspection, this
Court consistently has taken the view that it should be exercised to see that
the process of law is not abused or misused. In R.P. Kapur v. State of Punjab,.
AIR (1960) SC 866, a three-judge Bench of this Court while considering the
H exercise of power under Section 561-A of the code (predecessor for Section
A.K. ROYv. B.V. MEHTA [K. VENKATASWAMI, J.) 455
482) held as follows :- A
"It is well established that the inherent jurisdiction of the High Court
can be exercised to quash proceedings in a proper case either to
prevent the abuse of the process of any Court or otherwise to secure
the ends of justice ............. .It is not possible, desirable or expedient to B
lay down any inflexible rule which would govern the exercise of this
inherent jurisdiction. However, we may indicate some categories of
cases where the inherent jurisdiction can and should be exercised for
quashing the proceedings. There may be cases where it may be
possible for the High Court to take· the view that the institution or
continuance of criminal proceedings against an accused person may C
amount to the abuse of the process of the court or that the quashing
of the impugned proceedings would secure the ends of
justice .................... Cases may also arise where the allegations in the
First Information Report or the complaint, even if they are taken at
their face value and accepted in their entirely, do not constitute the
offence alleged; in such cases no question of appreciating evidence D
ari~es; 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. In such cases it would be legitimate for the High Court to hold
that it would be manifestly unjust to allow the process of the criminal
court to be issued against the accused person." E
We are firmly of the view that the above observations with all fours
apply to the facts of this case in the light of the extracts given above from
the complaint itself. The law laid down by this Court in R.P. Kapur's case has
stood the test of time and held the field for more than three decades. This
Court has applied the above ruling wherever the facts warranted the application, F
Very recently in State of UP. v. O.P. Sharma, [1996) 7 SCC 705, again a three-
Judge Bench of this Court quoted with approval the following passage from
the State of Bihar v. Rajendra Agrawal/a, [1996) 8 SCC 164 :-

"It has been held by this Court in several cases that the inherent G
power of the Court under Section 482 of the Code of Criminal Procedure
should be very sparingly and cautiously used only when the court
comes to the conclusion that there would be manifest injustice or
there would be abuse of the process of the court, if such power is not
exercised. So far as the order of cognizance by a Magistrate is
concerned, the inherent power can be exercised when the allegations H
456 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A in the first information report or the complaint together with the other
materials collected during investigation taken at their face value, do
not constitute the offence alleged. At that stage it is not open for the
court either to shift the evidence or appreciate the evidence and come
to the conclusion that no prima facie case is made out."

B In fairness to the High Court, we must also set out the reasoning of the
High Court on this aspect. The High Court rightly observed :-

"Reading the complaint and other material on record it appears that
even according to the complainant the loan was advanced on 13.11.1982
c by Sayaji Industries Limited to Santosh Starch Products and the
Santosh Starch Products are alleged to have advanced the loan to the
accused on the same day i.e. on 13.11.1982 and this, according to him,
is an offence constituting both criminal breach of trust and conspiracy.
Reading the requirement of Section 409 it is clear that proof of
entrustment of money is a condition precedent. The ingredients of
D offence u/s 409 of !PC are to be found in the definition clause of
''criminal breach of trust" in section 405 of!PC. It is therefore necessary
for the complainant to prove the entrustment of property or dominion
over it and in the second instance "dishonest misappropriation" or
"conversion to the accused own use" of the property concerned. It
is well settled that the dishonest use or disposition of the property
E
in question in violation of any direction of the law prescribing the
mode in which the trust is to be discharged or of any legal contract,
express or implied, which is made touching the discharge of such
trust,· or wilfully suffering of any person to do so also constitute the
offence of"Criminal Breach of Trust". Now, upon reading the complaint,
F it becomes clear that it is the specific case of the complainant that the
loan was advanced on 13 .11.1982 by Sayaji Industries Limited to
Santosh Starch products alleged to have advanced the loan to the
accused on the same day and thus, according to him, is an offence
constituting of both criminal breach of trust and conspiracy. This, in
my view, does not amount in law into an offence uoder Section 409
G
as the ingredients of Section 409 are not attracted. For attracting the
provisions of Section 409 one has to allege that the breach of trust
is committed by public servant or by banker, merchant or agerit, broker
or attorney. Reading the complaint, it is nowhere stated that the
accused occupy any of these positions. In absence of these particulars
H in the complaint, in my view, the complainant has prima facie failed to
A.K. ROYv. B.V. MEHTA [K. VENKATASWAMl,J.) 457
make out the case against the petitioners. Similarly, it is clear from A
reading the complaint and other material on record that the complainant
has failed to make out any case under Section 1208 or 409 of IPC."

We are in agreement with the view expressed above by the High Court.
This one aspect is sufficient to quash the proceeding and we need not deal
with the other points on which arguments were advanced before us. In the B
result, the appeals fail and are accordingly dismissed.

B.K.S. Appeals dismissed.