ASOKE BASAKversusSTATE OF MAHARASHTRA AND ORS.

                      [201 O] 12 S.C.R. 736


A                        ASOKE BASAK
                                V.
             STATE OF MAHARASHTRA AND ORS.
               (Criminal Appeal No. 1980 of 2010)
                       OCTOBER 8, 2010
B
               [D.K. JAIN AND H.L. DATTU, JJ.]

       Penal Code, 1860 - ss. 405, 409 r/w s. 34 - Criminal
  breach of trust - Ingredients of - Discussed - Contract
C between respondent No. 2-company and Maharashtra State
  Electricity Board (MSEB) - Respondent no.2 deposited Rs.5
  lakhs with MSEB as security deposit - Dispute aro~e between
  respondent no 2 and MSEB - Respondent No.2 sought
  immediate refund of Rs.5 lakhs - However, MSEB adjusted
o the deposit of 5 lakhs against dues payable by respondent
  No.2 to MSEB - Respondents No.2 to 4 filed complaint
  against appellant (Chairman of MSEB) and others under
  ss. 405 and 409 rlw s. 34 /PC - Magistrate took cognizance and
  issued summons - Petition filed by appellant uls.482 CrPC
E for quashing the complaint dismissed by High Court -
  Justification of - Held: Not Justified - There was nothing in
  the complaint to suggest that the complainant had entrusted
  any property to the appellant or that the appellant had
  dominion over the said money of the complainant, which was
F dishonestly converted by him to his own use, so as to satisfy
  the ingredients of s. 405 /PC - The complaint did not reveal
  any pre-concert or pre-planning whereby all the accused had
  decided to misappropriate the said amount - Since no prima
  facie case made out against the appellant in respect of
  offence under s.409 rlw s.405, even with the aid of s.34 /PC,
G it was a fit case where the High Court should have exercised
  its powers u/s.482 CrPC by quashing the complaint against
  the appellant - Code of Criminal Procedure, 1973 - s.482.

        Penal Code, 1860 - s. 34 - Liability under - Essence of
H                              736
  ASOKE BASAK v. STATE OF MAHARASHTRA AND 737
                    ORS.
 - Discussed.                                                  A

     Code of Criminal Procedure, 1973 - s.482 - Jurisdiction
 under - Scope and ambit of - Discussed.

     Respondent No.2-company entered into various
 contracts with Maharashtra State Electricity Board            B
 (MSEB) for installation of Low Tension Load Management
 System. Respondent no.2 deposited an amount of Rs.5
 lakhs with MSEB as security deposit in lieu of bank
 guarantee for tenders to be filed by respondent no.2 from
 time to time in the future.                                   c
       Certain disputes arose between MSEB and
  respondent No.2, pursuant to which respondent No.2
  informed MSEB that they were no longer interested in
  participating in any tenders which may be floated by         o
  MSEB and sought immediate refund of the said amount
  of Rs. 5 lakhs. MSEB, however, informed respondent
  No.2 that the deposit of Rs. 5 lakhs had been adjusted
  by it against the dues payable by respondent No.2 to
  MSEB. Thereafter, respondents No.2 to 4 filed a criminal     E
  complaint against the appellant (Chairman of MSEB) and
  other senior officials of the MSEB under Sections 405
  and 409 read with Section 34 of the IPC. It was alleged
  that the amount of Rs.5 lakhs was entrusted/bailed to the
  MSEB by the Complainant and came under the dominion
                                                               F
  of the accused; that the accused dishonestly and wilfully
1 with common criminal intent caused the MSEB to refuse

  refund of Rs. 5 Lakhs contrary to the provisions of law,
  and deprived wilfully and dishonestly deprived
  respondent no.2-company of the use of its money and
  committed the offence of criminal breach of trust in terms   G
  of Sec. 405 r/w Sec. 409 r/w Sec. 34 IPC.

    The Magistrate took cognizance and issued
 summons against all the accused named in the
 complaint. Aggrieved, the appellant preferred petition        H
    738     SUPREME COURT REPORTS             [2010} 12 S.C.R.


A under Section 482, CrPC for quashing of the complaint.
  The High Court dismissed the said petition.

       Allowing the appeal and quashing the order of the
    Magistrate, the Court
B      HELD:1.1. Although the jurisdiction of the High Court
  under Section 482 CrPC is very wide but it is not
  unbridled. The High Court is required to exercise its
  inherent powers under Section 482, CrPC sparingly,
  carefully and cautiously, ex debito justitiae to do real and
C substantial justice and to prevent abuse of the process
  of court. One of the situations' when the High Court
  would be justified in invoking its powers is where the
  allegations in the first information report or the complaint,
  as the case may be, taken at their face value and
D accepted in their entirety do not constitute the offence
  alleged. [Para 14] [7 48-A-B]

      1.2. In the instant case, the gravamen of the
  complaint against the appellant is that the said amount
E of Rs.5 lakhs was in the dominion of the accused, which
  was entrusted to MSEB for a specific purpose and,
  therefore, by adjusting the said amount for some other
  purpose, the accused dishonestly and wilfully, with
  common intention, deprived the complainant the use of
  the money and committed offence of breach of trust in
F terms of Section 405 read with Section 409 IPC. [Para 17]
  [750-D-E]

       1.3. For constituting an offence of criminal breach of
  trust, the following ingredients must be satisfied: "(a) a
G person should have been entrusted with property, or
  entrusted with dominion over property; (b) that person
  should dishonestly misappropriate or convert to his own
  use that property, or dishonestly use or dispose of that
  property or wilfully suffer any other person to do so; (c)
H that such misappropriation, conversion, use or disposal
ASOKE BASAK v. STATE OF MAHARASHTRA AND 739
                  ORS.
should be in violation of any direction of law prescribing      A
the mode in which such trust is to be discharged, or of
any legal contract which the person has made, touching
the discharge of such trust." [Para 19] [751-F-H] [752-A]

     1.4. In the instant case, there is no averment in the
                                                                B
complaint which may suggest that Rs. 5 lakhs was
entrusted to the appellant, either in his personal capacity
or as the Chairman of MSEB and that he misappropriated
it for his own use. The basis of the allegation is that the
appellant had caused the MSEB to refuse return of the
money to the complainant in order to wilfully and               C
dishonestly deprive the complainant of its use. There is
nothing in the complaint which may even remotely
suggest that the complainant had entrusted any property
to the appellant or that the appellant had dominion over
the said money of the complainant, which was                    D
dishonestly converted by him to his own use, so as to
satisfy the ingredients of Section 405 IPC. In the absence
of any such specific averment demonstrating the role of
the accused in the commission of the offence, it is difficult
to hold that the complaint, even ex-facie, discloses the        E
commission of an offence by the appellant under Section
409 IPC, punishable under Section 406 IPC. [Paras 20 and
21] [752-B-0] [753-A-B]

    R.P. Kapur v. State of Punjab AIR 1960 SC 866; Rupan
                                                                F
Deal Bajaj & Anr. v. Kanwar Pal Singh Gill & Anr. (1995) 6
SCC 194; G. Sagar Suri & Anr. v. State of UP. & Ors. (2000)
2 SCC 636; Indian Oil Corpn. Vs. NEPC India Ltd. & Ors,
(2006) 6 SCC 736; Onkar Nath Mishra & Ors. Vs. State (NCT
of Delhi) & Anr., (2008) 2 SCC 561; Pratibha Rani Vs. Sura}     G
Kumar & Anr, (1985) 2 SCC 370; Rashmi Kumar Vs. Mahesh
Kumar Bhada, (1997) 2 SCC 397; R. Venkatkrishnan v.
Central Bureau of Investigation, (2009) 11 SCC 737 and S.K.
Alagh v. State of Uttar Pradesh & Ors. (2008) 5 SCC 662 -
relied on.
                                                                H
    740     SUPREME COURT REPORTS            [2010] 12 S.C.R.

A      lnder Mohan Goswami & Anr. v. State of Uttarancha/ &
  Ors. (2007) 12 SCC 1; K. L. E. Society & Ors. v Siddalingesh
  (2008) 4 SCC 541; Baijnath Jha v Sita Ram & Anr. (2008)
  8 SCC 77; Suneet Gupta v. Ani/ Triloknath Sharma & Ors.
  (2008) 11 SCC 670; Rai Bahadur Seth Jessa Ram
8 Fatehchand v. Om Narain Tankha & Anr. AIR 1967 SC 1162;
  Jaswantrai Manila/ Akhaney v. State of Bombay AIR 1956 SC
  575; Suresh & Anr. v. State of UP (2001) 3 SCC 673; Shiva
  Nath Prasad v. State of WB. & Ors. (2006) 2 SCC 757; Kanti
  Bhadra Shah & Anr. v. State of WB. (2000) 1 SCC 722; UP.
C Pollution Control Board v. Mohan Meakins Ltd. & Ors. (2000)
  3 SCC 745; Dy Chief Controller of Imports & Exports v.
  Roshanlal Agarwal & Ors. (2003) 4 SCC 139; Hareram
  Satpathy v. Tikaram Agarwala & Ors. (1978) 4 SCC 58 and
  Nirmaljit Singh Hoon v. The State of West Bengal & Anr.
    (1973) 3 sec 753 - referred to.
D
       2.1. The essence of liability under Section 34 IPC is
  the existence of a common intention. A common
  intention implies pre-arranged plan and acting in concert
  pursuant to the pre-arranged plan. Though it is true that
E to attract Section 34, no overt act is needed on the part
  of the accused if he shares the common intention with
  others in respect of the ultimate criminal act, which may
  be done by any one of the accused sharing such
  intention; nonetheless, Section 34 IPC clearly envisages
F pre-concert or pre-planning, which may even develop at
  the spur of the moment but such plan must precede the
  act constituting the offence. [Para 22] [753-C-F]

      2.2. In order to attract Section 34 IPC, the complaint
  in question must, prima facie, reflect a common prior
G concert or planning amongst the appellant and other
  accused. On facts, the complaint does not reveal any pre-
  concert or pre-planning whereby all the accused had
  decided to misappropriate the said amount. MSEB, in
  whose coffers the said amount was credited, has not
H
ASOKE BASAK v. STATE OF MAHARASHTRA AND 741
                  ORS.
been arraigned as an accused in the complaint. Be that        A
as it may, since the ingredients of Section 409 IPC are not
satisfied against the appellant, the question of his acting
in concert with others does not arise. Therefore, Section
34 IPC is not attracted against the appellant. [Para 24]
[754-B-E]                                                     B

    Ramaswami Ayyangar & Ors. Vs. State of Tamil Nadu
(1976) 3 SCC 779 and Dani Singh & Ors. v. State of Bihar
(2004) 13 sec 203 - relied on.

     3. Since no prima facie case has been made out           c
against the appellant in respect of offence under Section
409 read with Section 405, even with the aid of Section
34 IPC, it was a fit case where the High Court should have
exercised its powers under Section 482 CrPC by
quashing the complaint against the appellant. [Para 25]       D
[754-F-G]
    Case Law Reference:
    (2007) 12 sec 1         referred to          Para 9
    (2008) 4 sec 541        referred to          Para 9       E
    (2008) 8 sec 11         referred to          Para 9
    (2008) 11 sec 670       referred to          Para 9
    (2000) 2 sec 636        relied on            Para 9
    (2008) 5 sec 662        relied on            Para 10      F
    AIR 1967 SC 1162        referred to          Para11
    AIR 1956 SC 575         referred to          Para 11
    (2001) 3 sec 673         referred to         Para12
    (2006) 2 sec 757        referred to          Para 12      G
    (2000) 1 sec 122         referred to         Para 13
    (2000) 3 sec 145         referred to         Para 13
    (2003) 4 sec 139         referred to         Para 13
                                                              H
    742       SUPREME COURT REPORTS              [2010] 12 S.C.R.


A         (1978) 4 sec 58         referred to           Para 13
          (1973) 3 sec 753        referred to           Para 13
          AIR 1960 SC 866         relied on             Para 14
          (1995) 6 sec 194        relied on             Para 14
B         (2006) 6 sqc 736        relied on             Para 19
          (2008) 2 sec 561        relied on             Para 19
          (1985) 2 sec 370        relied on             Para 19
          (1997) 2 sec 397        relied on             Para 19
c         (2009) 11 sec 737       relied on             Para 19
          (1976) 3 sec 119        relied on             Para 22
          (2004) 13 sec 203       relied on             Para 23

      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
D No. 1980 of 2010.

         From the Judgment & Order dated 09.10.2007 of the High
    Court of Judicature at Bombay in Criminal Miscellaneous Case
    no. 2854 of 2004.
E       Nagendra Rai, Vikas Singh, Ashok Desai, Shekhar
    Naphade, Ranjit Kumar, Lakshmi Raman singh, Ravi Prakash,
    Varun Agarwal, Chandra Prakash, Amrita Singh, Udita Singh,
    Raunak Jain, Abhishek Mitra, Mukul Taly, Swati Deshpande,
    Sneha Datar, Jatin Zaveri for the appearing parties.
F
          The Judgment of the Court was delivered by

          D.K. JAIN, J. 1. Leave granted.

       2. This appeal, by special leave, arises out of the judgment
G and order dated 9th October 2007, delivered by the High Court
  of Bombay in Criminal Application No. 2854 of 2004 in a
  petition filed by the appellant and one Mr. Krishna Rao,
  proforma respondent No.5 herein, under Section 482 of the
  Code of Criminal Procedure, 1973 (in short "the Code"). The
H High Court has, by the impugned judgment, declined to quash
ASOKE BASAK v. STATE OF MAHARASHTRA AND                    743
            ORS. [D.K. JAIN, J.]
a criminal complaint filed by respondents No.2 to 4 in this        A
appeal against the appellant and others for offences under
Sections 405 and 409 read with Section 34 of the Indian Penal
Code, 1860 (for short "the IPC").

    3. Briefly stated, the facts, necessary for disposal of the
                                                                   B
present appeal, may be stated thus:

     The appellant was the Chairman of the Maharashtra State
Electricity Board (for short "MSEB"). Respondent No.2 - M/s
Datar Switchgear Ltd. is a company which had entered into
various contracts with MSEB for installation of Low Tension        C
Load Management System. Respondents No.3 and 4 are the
senior officials of respondent No.2; respondent No.1 is the
State of Maharashtra and the aforestated respondent No.5 is
one of the co-accused.
                                                                   D
    4. On 2nd March, 2001 respondent No.2 deposited an
amount of '5 lakhs with MSES as security deposit in lieu of bank
guarantee to be used for tenders to be filed by respondent No.2
from time to time in the future. The conditions of tender and
supply provided that:
                                                                   E
    "This security deposit in cash or in the form of bank
    guarantee or otherwise is for the due performance of the
    material/contract and the same shall be liable to apportion
    towards amount due or becoming due by the supplier on
    his failure to execute this order or any other contract and    F
    in the event of non fulfilment of the terms and conditions
    of the contract."

Certain disputes arose between MSEB and respondent No.
2. On 16th September 2003, respondent No. 2 informed               G
MSEB that they were no longer interested in participating in
any tenders which may be floated by MSEB and sought
immediate refund of the said amount of '5 lakhs.

    5. The Chief Engineer (Distribution), MSEB vide his letter
                                                                   H
    744      SUPREME COURT REPORTS                 [2010) 12 S.C.R.

A dated 6th March 2004, informed respondent No.2 that the
  deposit of ·5 lakhs had been adjusted by MSEB against the
  dues payable by respondent No.2 to MSEB.

       6. On receipt of the said communication, on 29th June
  2004, respondents No.2 to 4 filed Complaint No.1881 of 2004
B before the Court of the Judicial Magistrate, First Class, Pune
  against the appellant and other senior officials of the MSEB
  under Sections 405 and 409 read with Section 34 of the IPC.
  The Judicial Magistrate, First Class, Pune took cognizance and
  issued summons against all the accused named in the
C complaint.

         7. Being aggrieved by the order of the Magistrate taking
    cognizance of the complaint, appellant preferred the afore-
    stated petition under Section 482 of the Code before the High
    Court of Bombay for quashing of the complaint.
0
       8. As stated above, the High Court, by the impugned
  judgment has dismissed the said petition. The High Court has
  inter alia, observed that a prima facie case has been made
  out against the accused; the defence of the accused would be
E examined on merits at the time of trial; the availability of a civil
  remedy does not preclude a criminal law remedy and this alone
  cannot be a ground for quashing the complaint and it was not
  incumbent on the complainant to plead the role of each and
  every accused as due to the principle of vicarious liability under
F Section 34 of the IPC, if two or more than two persons
  intentionally do a thing jointly, it's the same if each of them had
  done it individually, since common intention presupposes prior
  concert. Hence, the present appeal.

G       9. Mr. Nagendra Rai, learned senior counsel appearing for
  the appellant assailed the decision of the High Court in not
  exercising its jurisdiction under Section 482 of the Code as
  fallacious on the ground that the complaint, assuming to be
  correct in its entirety, does not disclose the commission of an
H offence under Section 409 IPC by the appellant. According to
ASOKE BASAK v. STATE OF MAHARASHTRA ANQ 745
            ORS. [D.K. JAIN, J.]
the learned counsel, the subject matter of the complaint is          A
purely civil in nature and the complaint amounts to an abuse
of the process of court. In support of his assertion that in this
type of cases the courts should be loathe to take cognizance,
in the brief written submissions filed on behalf of the appellant,
reliance is placed on the decisions of this Court in lnder Mohan     B
Goswami & Anr. Vs. State of Uttarancha/ & Ors. 1 , K.L.E.
Society & Ors. Vs. Siddalingesh 2 , Baijnath Jha Vs. Sita Ram
& Anr. 3 , Suneet Gupta Vs. Anil Triloknath Sharma & Ors. 4 and
G. Sagar Suri & Anr. Vs. State of UP. & Ors. 5 . It was
contended that the non-refund of '5 lakhs by MSEB could not          c
amount to criminal breach of trust as under the terms of the
contract, the MSEB could adjust the said amount against their
claims, which were under various stages of adjudication.

      10. Relying heavily on the decision of this Court in S.K.
A/agh Vs. State of Uttar Pradesh & Ors. 6 , learned counsel          D
contended that the summoning order issued by the Magistrate
is ex-facie illegal and vexatious in as much as even as per the
allegations in the complaint, the said amount was entrusted/
bailed out to MSES, which has not been made an accused and
no role in this behalf has been assigned to the appellant. It was    E
asserted that in the entire complaint there is not even a whisper
that the adjustment in question was in furtherance of a pre-
planned action by MSES and its functionaries, including the
appellant, so as to attract Section 34 IPC. It was thus, pleaded
that the Magistrate in taking cognizance of the complaint had        F
failed to take into consideration all these relevant factors and,
therefore, the summoning order is liable to be set aside.

      11. Per contra, Mr. Ranjit Kumar, learned senior counsel

1.   (2007) 12 sec 1                                                 G
2.   (2008) 4 sec 541
3.   (2008) 8 sec 77
4.   (2008) 11 sec 670
5.   (2008) 2 sec 636
6.   (2008) 5 sec 662
                                                                     H
    746        SUPREME COURT REPORTS                 (2010] 12 S.C.R.


A appearing for respondents No.2 to 4 urged that since the
  deposit was in the nature of an interest free security, solely for
  the purpose of ensuring that contracts would be duly entered
  into if the tenders were awarded by MSEB to the respondents,
  it was in the nature of an entrust. In support, reliance was placed
B on the decision of this Court in Rai Bahadur Seth Jessa Ram
  Fatehchand Vs. Om Narain Tankha & Anr. 7 , wherein it was
  held that the fact that the security deposit did not attract interest,
  would lead to the inference that the deposit was an entrustment.
  It was further contended that the entrustment with MSEB enjoins
c the role of a trustee on the natural persons who controlled the
  MSEB at the material time, and therefore in light of the decision
  of this Court in Jaswantrai Manila/ Akhaney Vs. State of
  Bombay8, it was fallacious to contend that the accused did not
  have dominion over the subject deposit. It was also contended
  that the remedies under the criminal law and civil law are not
0
  mutually exclusive but co-extensive; they differ in their content,
  scope and consequence and, therefore, even when a civil
  remedy is available, a criminal prosecution is not barred.

          12. Relying heavily on a three-Judge bench decision of this
E Court in Suresh & Anr. Vs. State of U.P. 9 , wherein it was held
  that no overt act is needed on the part of the accused to attract
  Section 34 IPC, if he shares the common intention with others
  in respect of the ultimate criminal act, learned counsel
  contended that in the instant case, the complaint clearly spells
F out the role of the appellant and, therefore, Section 34 IPC,
  which recognizes the principle of vicarious liability, is clearly
  attracted. Commending us to the decision of this Court in
  Shiva Nath Prasad Vs. State of W B. & Ors. 10 , learned counsel
  submitted that in a case under Section 409, the question of
G entrustment has to be examined on the strength of the evidence

    7.   AIR 1967 SC 1162
    8.   AIR 1956 SC 575
    9.   (2001) :1 sec 673
H   10. (2006) 2 sec 757
ASOKE BASAK v. STATE OF MAHARASHTRA AND                     747
            ORS. [D.K. JAIN, J.]
led by the complainant and, therefore, at this stage, it is pre-    A
mature to return a finding on the applicability of the said
provision or to hold that the case is of a civil nature.

      13. Learned counsel also argued that while taking
cognizance of a criminal offence and issuing process against        B
the accused, the court is not required to pass a reasoned order,
as pleaded by learned counsel for the appellant. In support,
reliance was placed on the decisions of this Court in Kanti
Bhadra Shah & Anr. Vs. State of WB. 11 , UP. Pollution Control
Board Vs. Mohan Meakins Ltd. & Ors. 12 and Dy. Chief                C
Controller of Imports & Exports Vs. Roshanlal Agarwal &
Ors. 13 • Relying on the decisions of this Court in Hareram
Satpathy Vs. Tikaram Agarwala & Ors. 14 and Nirmaljit Singh
Hoon Vs. The State of West Bengal & Anr. 15 , learned counsel
for the respondents strenuously urged that at the stage of
issuance of summons the Magistrate has to satisfy himself that      D
there was sufficient material to merely proceed, and not to
sustain a conviction. According to the learned counsel, there
was sufficient material before the Magistrate on the basis
whereof he took cognizance of the complaint. Learned counsel
also invited our attention to the notice dated 22nd March 2004,     E
issued by respondent No.2 to the functionaries of MSEB,
including the appellant, repudiating their stand that the
adjustment of Rs. 5 lakhs was in terms of the chamber
summons dated 29th October 2002, in support of his
submission that the conduct of the officials of MSEB was            F
contumacious. It was thus, contended that the High Court was
justified in not exercising its jurisdiction under Section 482 of
the Code, particularly when only summons had been issued to

11. (2000J 1 sec 122
                                                                    G
12. (2000) 3 sec 745
13. (2003) 4 sec 139
14. (1978) 4 sec 58
15. (1973) 3 sec 753
                                                                    H
    748       SUPREME COURT REPORTS                  (2010] 12 S.C.R.


A   the appellant to appear in court.

        14. Before examining the merits of the rival submissions,
  it would be appropriate to briefly notice the scope and ambit
  of the jurisdiction of the High Court under Section 482 of the
B Code. It needs little emphasis that although the jurisdiction of
  the High Court under the said provision is very wide but it is
  not unbridled. The High Court is required to exercise its inherent
  powers under Section 482 of the Code sparingly, carefully and
  cautiously, ex debito justitiae to do real and substantial justice
  and to prevent abuse of the process of court. One of the
  situations' when the High Court would be justified in invoking
  its powers is where the allegations in the first information report
  or the complaint, as the case may be, taken at their face value
  and accepted in their entirety do not constitute the offence
  alleged. (See: R.P. Kapur Vs State of Punjab 16 and Rupan
  Deol Bajaj & Anr. Vs. Kanwar Pal Singh Gill & Anr. 17 .)

        15. In G. Sagar Suri 's case (supra), this Court had
    observed thus:

          "Jurisdiction under Section 482 of the Code has to be
          exercised with great care. In exercise of its jurisdiction the
          High Court is not to examine the matter superficially. It is
          to be seen if a matter, which is essentially of a civil nature,
          has been given a cloak of criminal offence. Criminal
          proceedings are not a short cut of other remedies
          available in law. Before issuing process a criminal court
          has to exercise a great deal of caution. For the accused
          it is a serious matter. This Court has laid certain principles
          on the basis of which the High Court is to exercise its
          jurisdiction under Section 482 of the Code. Jurisdiction
          under this section has to be exercised to prevent abuse
          of the process of any court or otherwise to secure the ends
          of justice."
    16. AIR 1960 SC 866
    1?. (1955) 6 sec 194
ASOKE BASAK v. STATE OF MAHARASHTRA AND 749
            ORS. [D.K. JAIN, J.]

     16. Bearing in mind the aforestated legal position in regard   A
to the width of power of the High Court under Section 482 of
the Code, we shall now advert to the facts at hand. For the
sake of ready reference, we may extract the relevant portions
of the complaint containing allegations against the appellant.
These are:                                                          B

     "7. On or about March 2001 an amount of ·5 Lacs was
     caused to be deposited by the Company as Security
     Deposit in view of Bank Guarantee to be used for tenders
     to be filed by the Company with the MSEB from time to
     time in the future. The payment was made on behalf of the      C
     Complainant No. 1 by the Bank of Maharashtra having its
     registered office at Lokmangal, Shivaji Nagar, Pune. The
     said amount of ·5 Lacs was therefore in the dominion of
     the Accused. The amount was entrusted/bailed to the
     MSEB by the Complainant and came under the dominion            D
     of the Accused and was to be used as security for future
     contracts only, if any, and was to be refunded if the
     Complainant Company so desired, at any time; The
     amount was not to be used for any other purpose
     whatsoever. Vi de letter dated 9. 7.2002, the MSEB             E
     acknowledged receipt of ·5 Lacs from the Complainant
     Company.

     8. Vide letter dated 16.9.2003 the Company informed the
     MSEB that it no longer desired (sic) to participate in any
                                                                    F
     tenders floated by the MSEB and sought immediate refund
     of the amount of· 5 Lacs. On 16.9.2003, the Complainant
     informed the MSEB that it had not participated in any
     tenders under the said Security Deposit of '5 Lacs. It was
     expected and legally necessary that the MSEB forthwith
     refund the said amount to the Complainant as there were        G
     no tenders pending filed by the Complainant Company on
     the date of seeking refund.
     9. The Complainants were shocked and surprised that the
     Accused (who had dominion over the amount of '5 Lacs)          H
    750       SUPREME COURT REPORTS                 (2010] 12 S.C.R.


A         started giving false excuses and pretences to avoid refund
          of the entrusted/bailed amount. The whole approach of the
          accused was to stifle the refund of the amount dishonestly
          and deprive the Complainant Company the use of its own
          money. The response of the Accused and/or on their
B         behalf is of bogus and dodging with an intention to drive
          away the Complainant and avoid refund anyhow ........... .


          11. The Accused have therefore dishonestly and wilfully
          with common criminal intent suffered the MSEB to refuse
c         refund of · 5 Lacs contrary to the provisions of law and
          deprived wilfully and dishonestly the Complainant
          Company the use of its money and committed the offence
          of criminal breach of Trust in terms (sic) of Sec. 405 r/w
          Sec. 409 r/w Sec. 34 of the Indian Penal Code ...... "
D
       17. It is manifest from a bare reading of the afore-extracted
  paragraphs that the gravamen of the complaint against the
  appellant is that the said amount of ·5 lakhs was in the
  dominion of the accused, which was entrusted to MSEB for a
E specific purpose and, therefore, by adjusting the said amount
  for some other purpose, the accused dishonestly and wilfully,
  with common intention, deprived the complainant the use of the
  money and committed offence of breach of trust in terms of
  Section 405 read with Section 409 IPC.

F      18. Section 405, IPC defines "criminal breach of trust" to
    mean:

          "405. Criminal breach of trust-Whoever, being in any
          manner entrusted with property, or with any dominion over
          property, dishonestly misappropriates or converts to his
G         own use that property, or dishonestly uses or disposes of
          that property in violation of any direction of law prescribing
          the mode in which such trust is to be discharged, or of any
          legal contract, express or implied, which he has made
          touching the discharge of such trust, or wilfully suffers any
H         other person so to do, commits "criminal breach of trust".
 ASOKE BASAK v. STATE OF MAHARASHTRA AND 751
             ORS. [D.K. JAIN, J.]

    Explanation 1.-A person, being an employer of an               A
    establishment whether exempted under section 17 of the
    Employees' Provident Funds and Miscellaneous
    Provisions Act, 1952 (19 of 1952), or not who deducts the
    employee's contribution from the wages payable to the
    employee for credit to a Provident Fund or Family Pension      B
    Fund established by any law for the time being in force,
    shall be deemed to have been entrusted with the amount
    of the contribution so deducted by him and if he makes
    default in the payment of such contribution to the said Fund
    in violation of the said law, shall be deemed to have          c
    dishonestly used the amount of the said contribution in
    violation of a direction of law as aforesaid.

    Explanation 2.-A person, being an employer, who
    deducts the employees' contribution from the wages
    payable to the employee for credit to the Employees' State     D
    Insurance Fund held and administered by the Employees'
    State Insurance Corporation established under the
    Employees' State Insurance Act, 1948 (34 of 1948), shall
    be deemed to have been entrusted with the amount of the
    contribution so deducted by him and if he makes default        E
    in the payment of such contribution to the said Fund in
    violation of the said Act, shall be deemed to have
    dishonestly used the amount of the said contribution in
    violation of a direction of law as aforesaid."
                                                                   F
    19. It is plain that for constituting an offence of criminal
breach of trust, the following ingredients must be satisfied:
    "(a) a person should have been entrusted with property, or
    entrusted with dominion over property;
    (b) that person should dishonestly misappropriate or           G
    convert to his own use that property, or dishonestly use or
    dispose of that property or wilfully suffer any other person
    to do so;
    (c) that such misappropriation, conversion, use or disposal    H
    752      SUPREME COURT REPORTS                [2010] 12 S.C.R.


A         should be in violation of any direction of law prescribing
          the mode in which such trust is to be discharged, or of any
          legal contract which the person has made, touching the
          discharge of such trust." (See: Indian Oil Corpn. Vs.
          NEPC India Ltd. & Ors. 18 ; Onkar Nath Mishra & Ors. Vs.
B         State (NCT of Delhi) & Anr 19 ; Pratibha Rani Vs. Suraj
          Kumar & Anr. 20 ; Rash mi Kumar Vs. Mahesh Kumar
          Bhada 21 ; R. Venkatkrishnan Vs. Central Bureau of
          lnvestigation 22 .)

       20. In the instant case, we are unable to gather from the
C complaint any averment which may suggest that · 5 lakhs was
  entrusted to the appellant, either in his personal capacity or as
  the Chairman of MSEB and that he misappropriated it for his
  own use. The basis of the allegation is that the appellant had
  caused the MSEB to refuse return of the money to the
D complainant in order to wilfully and dishonestly deprive the
  complainant of its use. In this regard, it would be useful to refer
  to the following observations in S.K. Alagh's case (supra):
       · "As, admittedly, drafts were drawn in the name of the
         Company, even if the appellant was its Managing Director,
E
         he cannot be said to have committed an offence under
         Section 406 of the Penal Code. If and when a statute
         contemplates creation of such a legal fiction, it provides
         specifically therefor. In absence of any provision laid down
         under the statute, a Director of a Company or an employee
F        cannot be held to be vicariously liable for any offence
         committed by the Company itself."

        21. Admittedly, in the present case, the said amount was
    deposited by the complainant company with MSEB and there
G
               sec 736
    18. (2006) 6
  19. (2008) 2 sec 561
  20. (1985) 2 sec 370
  21 (1997) 2 sec 397

H 22. (2009) 11 sec 737
 ASOKE BASAK v. STATE OF MAHARASHTRA AND 753
             ORS. [D.K. JAIN, J.]
is nothing in the complaint which may even remotely suggest            A
that the complainant had entrusted any property to the appellant
or that the appellant had dominion over the said money of the
complainant, which was dishonestly converted by him to his
own use, so as to satisfy the ingredients of Section 405 of the
IPC. In the absence of any such specific averment                      B
demonstrating the role of the accused in the commission of the
offence, we find it difficult to hold that the complaint, even ex-
facie, discloses the commission of an offence by the appellant
under Section 409 IPC, punishable under Section 406 IPC.

     22. We shall now examine whether the appellant is                 C
vicariously liable for the afore-mentioned offence with the aid
of Section 34 of the IPC. The essence of liability under Section
34 IPC is the existence of a common intention. A common
intention implies pre-arranged plan and acting in concert
pursuant to the pre-arranged plan. In Ramaswami Ayyangar               D
& Ors. Vs. State of Tamil Nadu 23 , this Court had observed that
the essence of Section 34 IPC is simultaneous consensus of
the minds of persons participating in the criminal action to bring
about a particular result. It is true that to attract Section 34, no
overt act is needed on the part of the accused if he shares the        E
common intention with others in respect of the ultimate criminal
act, which may be done by any one of the accused sharing such
intention. Nonetheless, Section 34 IPC clearly envisages pre-
concert or pre-planning, which may even develop at the spur
of the moment but such plan must precede the act constituting          F
the offence. It is equally true that it may not be possible in every
case to have direct evidence of a common intention and it may
have to be inferred from the facts and circumstances of each
case.

    23. In Dani Singh & Ors. Vs. State of Bihar 24, this Court         G
had observed thus:

     "Common intention" implies prearranged plan and acting
23. (1976) 3 sec 779
24. (2004) 13 sec 203                                                  H
    754       SUPf~EME COURT REPORTS               , [2010] 12 S.C.R.


A         in concert pursuant to the prearranged plan. Under this
          section a preconcert in the sense of a distinct previous plan
          is not necessary to be proved. The common intention to
          bring about a particular result may well develop on the spot
          as between a number of persons, with reference to the
B         facts of the case and circumstances of the situation.
          Though common intention may develop on the spot, it must,
          however, be anterior in point of time to the commission of
          offence showing a prearranged plan and prior concert."

        24. Thus, in order to attract Section 34 of the IPC, the
C complaint in question must, prima facie, reflect a common prior
  concert or planning amongst the appellant and other accused.
  Having carefully gone through the complaint, we are of the view
  that it does not reveal any pre-concert or pre-planning whereby
  all the accused had decided to misappropriate the said amount.
D It is pertinent to note that MSEB. in whose coffers the said
  amount was credited, has not been arraigned as an accused
  in the complaint. Be that as it may, having come to the
  conclusion that the ingredients of Section 409 IPC are not
  satisfied against the appellant, the question of his acting in
E concert with others does not arise. We are, therefore,
  convinced that Section 34 IPC is not attracted against the
  appellant.

         25. In light of the above-noted conclusions, we are of the
    opinion that no prima facie case has been made out against
F   the appellant in respect of offence under Section 409 read with
    Section 405, even with the aid of Section 34 of the IPC.
    Therefore, it was a fit case where the High Court should have
    exercised its powers under Section 482 of the Code by
    quashing the complaint against the appellant.
G
          26. Resultantly, the appeal is allowed; the impugned order
    in relation to Criminal Application No.2854 of 2004 is set aside
    and the order of the Magistrate taking cognizance against the
    appellant in Complaint No.1881 of 2004 is quashed.
H B.B.B.                                             Appeal allowed.