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TMI Blog2016 (6) TMI 1447X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 406, 420 r/w 34 of Indian Penal Code vide Order dated 17/01/2002. Being aggrieved by the said order, Petitioner herein has filed Criminal Revision Application No. 25 of 2002 before Court of Additional Sessions Judge at Palghar. Learned Additional Sessions Judge Palghar vide Order dated 03/07/2002 has been pleased to dismiss Revision Application. Hence, this Writ Petition. 2. Present Respondent No. 1 had filed a complaint in the court of Judicial Magistrate First Class, Dahanu on 17/01/2002, alleging therein that she is an entrepreneur. According to her, original accused No. 1 i.e. Smt. Uma Chavan was also into manufacturing of food products in the name and style of "Parle Food Products". That she had requested the complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded the verification statement of the complainant on oath on 17/01/2002. Upon recording the verification statement, Judicial Magistrate First Class, Dahanu had issued process against the accused for offence punishable under section 406, 420 r/w 34 of Indian Penal Code. 4. Perused the copy of the complaint and the copy of the verification statement. 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 ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 other person so to do, commits "criminal breach of trust". 6. 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. 7. Learned counsel for the Respondent No. 1 has placed reliance upon Judgment of Hon'ble Apex Court in the case of Rajesh Bajaj v. State NCT (A.I.R. 1999 Supreme Court 1216 : [1999 ALL MR (Cri) 548 (S.C.)]). She has placed implicit reliance on paragraph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice". 8. This Court cannot be oblivious of the fact that the prayer in above mentioned case was for quashing of complaint whereas the prayer in the present petition is for quashing of the order of issuance of process after cognizance was taken by learned Magistrate. Learned Magistrate has been oblivious of the sanctity of the verification statement. Petitioner has challenged the order of issuance of process on the principal ground that there is non application of mind by learned Magistrate as he has ignored discrepancy between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Magistrate to examine the complainant which means that the learned magistrate is obliged to put questions to the complainant for eliciting the truth from him. The said provision enjoins a judicial duty to be performed by the Judicial magistrate which requires an application of judicial mind. The said work of recording the statement cannot be done mechanically by simply filling cash details such as the date of cheque, name of the bank, date of intimation of dishonour of the cheque etc; in a format which is already kept ready. Generally, the complaints are drafted by the lawyers as per the instructions of the complainants. Thus, a complaint is the translated version or a formulated version made by the advocate on the instructions received f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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