ex maori cautela= (by way of abundant caution).

2. In the case of Sunilakhya Chowdhury (Supra) it has been stated as under:

The next three points raised by the learned Advocate-General are material and go to the root of
the case. There is much force behind the same Mr. Dutt contended that a company cannot in any
event be held to have committed an offence under section 500 Indian Penal Code, 1860 because
the most essential ingredient of the said offence is mens real

The offence of defamation consists of three essential ingredients, namely, (1) making or
publishing any imputation concerning my person (2) Such imputations must have been made by
words either spoken or intended to be read or by signs or by visible representations and (3) the
said imputation must have been made with the intention to harm of with knowledge or having
reason to believe that it will harm the reputation of the person concerned. Therefore, the intention
to cause harm is the most essential "sine quanon" of an offence under section 499 Indian Penal
Code, 1860

Preliminary objection was raised by learned Addl. Advocate General with regard to the
maintainability of the application for quashing the proceedings in exercise of inherent jurisdiction
conferred under Section 482 Code of Criminal Procedure, 1973. It was vehemently argued that at
the time of taking cognizance of offence Court has to consider only the averments made in the
complaint/FIR and also the report/charge sheet in the charge sheet filed under section 173 (2)
Code of Criminal Procedure, 1973 by the Investigating officer as the case may be as such it is not
incumbent upon the Court at that stage to embark upon and sift the evidence to come to the
conclusion as to whether offence has been committed or not. The inherent power conferred under
Section 482 Code of Criminal Procedure, 1973 is not to be resorted to if there is specific
provisions in the Code of Criminal Procedure, 1973 or any other enactment for redress of the
grievance of the aggrieved party. Exercise of such powers would depend upon the facts and
circumstances of each case with the sole aim and object of preventing abuse of process of Court
or otherwise to secure ends of justice. Meticulous analysis at this stage would amount to mini trial
which has been deprecated by Hon'ble Apex Court in a catena of decisions some of which are
being cited viz. reported in 2007 (59) A.C.C. 824 Pratibha Versus Rameshwari Devi, 2003 (6)
S.C.C. 641 State Versus Navjot Siddhu and others. Replying to the preliminary objections raised
by Sri Zafar Naiyer, learned Additional Advocate General, Sri R. Venkata Ramani submitted that
the High Court is fully empowered to interfere in exercise of its inherent power under section 482
Code of Criminal Procedure, 1973 for the purpose of preventing abuse of process of law to quash
the first information report or charge sheet, if the contents of the same does not disclose or show
requisite ingredients of an offence lodged against a person. The power under section 482 Code of
Criminal Procedure, 1973 conferred upon the High Court is widest power to prevent abuse of
process of Court or to secure ends of justice. The first part of section 482 Code of Criminal
Procedure, 1973 deals with that nothing in this Code shall be deemed to limit or affect the
inherent powers of the High Court to make such orders as may be necessary to give effect to any
order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the
ends of justice
In the catena of decisions of Hon'ble Apex Court wherein it has been specifically held that the
material produced by the accused is not to be considered at the stage of passing the summoning
order. Learned counsel appearing on behalf of opposite parties has placed reliance upon following
decisions:-

i. State of M.P. Versus Avadh Kishore Gupta & others (2004) 1, S.C.C. 691

ii. State of Bihar Vs. P.P. Sharma & another, 1991 S.C.C. (Suppl) 493

iii. State of Orrisa Versus Devendra Nath Padhi 2005 (51) A.C.C. 209 S.C.

iv. State Anti-corruption Bureau, Hyderabad & another Versus P. Surya Prakasam (2008) 14,
S.C.C.13,

It is further contended that the alleged malafide on the part of the investigating officer by the
learned counsel for the applicant must be proved by admitted facts and not bald assertions are
acceptable at pre-cognizance stage, such objections cannot be taken into account that the
investigating officer committed irregularity in investigation.

Statute itself provides necessary safeguards under sections 239 & 240 Code of Criminal
Procedure, 1973 hence there is no need to invoke power of High Court for quashing the
proceedings. Ample opportunity would be provided to the accused applicant of being heard and
in case the Magistrate would consider the charge against the accused to be ground less, he shall
discharge the accused and record his reasons for doing so.

Contention with regard to the malafide of the investigating officer or there is any defect or any
illegality in the investigation would not create any hindrance to take cognizance nor any
proceedings would be vitiated on account of that. Learned counsel for the opposite parties relied
upon the following decisions in support of his contention which runs as follows:-

i) H.N. Rishbud Versus State of Delhi, 1955 AIR SC 196,

ii) Union of India versus Prakash P. Hinduja 2003 (6) S.C.C. 195.
It is submitted by learned counsel for the opposite parties that defect or illegality in the
investigation however, serious has no direct bearing for the initiation of the procedure relating to
cognizance or trial.

He has further added his argument by placing reliance upon the following decisions in support of
the prosecution which runs as under:-

1. Jilubhai Nanbhai Khachar & others Vs. State of Gujarat & others 1995 Supp (1) SCC 596.

2. Rashida Kamaluddin Syed and another Vs. Shaikh Saheblal Mardan (dead) through Legal
representatives and another (2007) 2, S.C.C. (Cri) 63,

From the aforesaid contention advanced by learned counsel for the parties, this Court cannot take
notice of new grounds qua jurisdiction etc. at this stage to embark upon enquiry whether the
allegations in the first information report are reliable or not and thereupon cannot render a finding
whether any of the allegations is proved, since these are matter of facts which can be examined
only by the court concerned after entire materials are placed before it. So far as malafide on the
part of the investigating officer is concerned, it cannot be a ground to quash the proceedings at
this stage. The legal position is settled as to when prosecution at the initial stage is to be quashed.
The test to be applied by the Court as to whether uncontroverted allegations as made, prima facie
establishes the offence. Consideration of any special features in a particular case determines the
continuation of prosecution but where the chances of ultimate conviction is bleak and no useful
purpose would be served to continue the criminal prosecution, proceedings may be quashed even
at preliminary stage but in the rarest of rare cases as it has also been held in the case of Bhajan
Lal (Supra) that the Court will not be justified in embarking upon an enquiry as to the reliability
or genuineness or otherwise of the allegations made in the FIR or the complaint and that the
extraordinary or the inherent powers do not confer an arbitrary jurisdiction on the Court to act
according to its whim or caprice. The documents which have been produced by the rival parties
before this Court cannot be looked so as to convert this Court into trial court to declare the
accused to be innocent and quash the proceedings. This Court cannot assume the jurisdiction of
criminal court to appreciate the evidence and put an end to the process of investigation & trial.
Considering the matter on merits in the guise of prima facie evidence would tantamount to
pretrial of criminal trial howsoever, the documents if proved to be true.
They may serve as the defence for the applicant at the stage of trial, therefore, the commission of
offence in the present case cannot be decided on affidavit.

From the thread bare discussions and looking to the rival contention of the parties, any findings
on merits regarding commission of offence under section 405 and 409 Indian Penal Code, 1860
cannot be recorded as this Court cannot usurp the function of the trial court to delve into &
decide it on merits. The ingredients in order to constitute a criminal breach of trust are (1)
entrusting a person with property or with any dominion over property (2) the person so entrusted
must (a) dishonestly misappropriating or converting that property to his own use (b) dishonestly
using or disposing of that property or willfully suffering any other person to do so (i) in violation
of any direction of law prescribing the mode in which such property is to be discharged (ii) of
any legal contract made touching the discharge of such trust. As held in R.K. Dalmia versus
Delhi Administration reported in AIR 1981 SC 1821.

In the instant case the act of fraudulent misappropriation is very much clear in the first
information report itself, therefore, the breach of trust with mens rea has given reason to initiate
criminal prosecution against the applicant. The applicant was entrusted with valuable documents
during the course of his employment in RBEF and has refused to return the same after leaving
the service, prima facie shows his guilty mind and dishonest intention not to part with the same.
The malafide and ulterior motive of the complainant becomes secondary which can be tested at
the stage of trial by adducing defence evidence and cross examination of witnesses. There is
adequate evidence to initiate proceedings, the quashing of the criminal proceedings would
amount to assuming the jurisdiction of trial court declaring the accused to be innocent at the pre-
trial stage.

Learned Magistrate has not committed any error or illegality in passing the summoning order. At
this stage quashing of criminal proceedings would amount to thwarting of substantial and
effective justice without framing of charges/ or trial.

Therefore, this application has no substance and is accordingly dismissed. The interim order is
hereby vacated

as the position of law on this point is well settled by a recently pronounced judgement of the
Honourable Supreme Court rendered in the case of Keki Hormusji Gharda and others Vs.
Mehervan Rustom Irani and another [2009-6-SCC-475], wherein it is held as under:-
"17. The Indian Penal Code, 1860 save and except in some matters does not contemplate any
vicarious liability on the part of a person. Commission of an offence by raising a legal fiction or
by creating a vicarious liability in terms of the provisions of a statute must be expressly stated.
The Managing Director of the Directors of the Company, thus, cannot be said to have committed
an offence only because they are holders of offices. The learned Additional Chief Metropolitan
Magistrate, therefore, in our opinion, was not correct in issuing summons without taking into
consideration this aspect of the matter. The Managing Director and the Directors of the Company
should not have been summoned only because some allegations were made against the
Company."

In the same decision, regarding the availability of other remedy of filing an application for
discharge, it is held thus:-

"19. Even as regards the availability of the remedy of filing an application for discharge, the same
would not mean that although the allegations made in the complaint petition even if given face
value and taken to be correct in its entirety, do not disclose an offence or it is found to be
otherwise an abuse of the process of the court, still the High Court would refuse to exercise its
discretionary jurisdiction under Section 482 of Code of Criminal Procedure, 1973."

As regards the availability of the remedy of filing an application for discharge to answer the
contention of the Respondent in the present case, the Honourable Supreme Court has observed
that the same would not mean that although the allegations made in the complaint petition even if
given face value and taken to be correct in its entirety, do not disclose an offence or it is found to
be otherwise an abuse of process of the court, still the High Court would refuse to exercise its
discretionary jurisdiction under Section 482 of Code of Criminal Procedure, 1973. The
Honourable Supreme Court has made a reference to one of its earlier decisions rendered in the
case of Pepsi Food Limited Vs. Special Judicial Magistrate [1998-5-SCC-749] in that regard.