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.
1
]
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 FULFILLED
The 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
2
Facts
taken at their face value must disclose the existence of all the ingredients constituting
the alleged offence for continuation of trial.
3

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

1
Shyam Sunder Gupta vs State of UP, 1985 CrLJ 1674(All).
2
SEE SEC. 227, CRPC
3
Niranjan Singh Karam Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya and
Others etc. (1990) 4 SCC 76
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
4
: If two views are possible and one of them gives rise to suspicion only,
as distinguished from grave suspicion, the Trial Judge will be empowered to discharge the
accused if he is not under grave suspicion and at this stage he is not to see whether the trial
will end in conviction or acquittal.]

(3) The test to determine a prima facie case would naturally depend upon the facts of each

4
[Criminal Appeal No. 1460 of 2012 arising out of S.L.P. (CRL.) No. 6975 of 2011]
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 1489

2. State of Maharashtra and Ors. v. Som Nath Thapa and Ors. AIR 1996 SC 1744

3. Omwati and Anr Vs. State AIR 2001 SC 1507

4. Kanti Bhadra Shah and Anr. Vs. State of W.B. AIR 2000 SC 522

5. Stree Atyachar Virodhi Parishad Vs. Dilip N. Chartia 1989 (1) SCC 715

6. State of Bihar vs. Ramesh singh AIR 1977 SC 2018

7. Supdt. S. Remembrancer of legal affairs W.B. Vs. Anil Kumar Bhunja- AIR 1989 SC 52

8. Satish Mehra Vs. Delhi Admn. (1996)9 SCC 766

9. State of M.P. v. Mohanlal Soni AIR 2000 SC 2583