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2016 (6) TMI 1447 - HC - Indian LawsCheating - breach of trust - siphoning off of funds - non application of mind by learned Magistrate - it is claimed that the magistrate has ignored discrepancy between the complaint and verification - HELD THAT:- It is a matter of record that allegations against present Petitioner made in the complaint do not find place in the verification statement. Moreover, it is the contention of the complainant that accused No. 1 had siphoned of the deposit in favour of the Petitioner, without her permission. It is not the case of the complainant that she had verified from the Petitioner that the said amount was entrusted in his favour. No overt act is attributed to the present Petitioner. It is a matter of record that in the complaint also, complainant has not even whispered that in the course of entire transaction, she had no communication with the present Petitioner or that she had entrusted the amount of Rs. 4 Lakhs to him or had verified the contention of the accused No. 1. The sanctity of recording the verification statement is that the contents of the complaint are reproduced on oath and the complainant stands by the contents of the complaint. It is clear that there is no whisper against present Petitioner in the verification statement. It is clear that learned Magistrate has failed to appreciate the discrepancy in the complaint and verification statement. The fact that there was material discrepancy in the complaint and the verification, learned Magistrate ought not to have issued process against present Petitioner. Issuance of process and continuance of criminal proceedings against present Petitioner, in view of the above mentioned fact would be abuse of process of Law. It is more than clear that none of the ingredients contemplated under section 405 of Indian Penal Code could be applicable to the present petitioner as there is no element of entrustment in favour of present Petitioner. The genuineness and truthfulness of contents of the complaint have to be substantiated in the examination on oath. It is in these premises that the petition deserves to be allowed.
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