S.S. Kothari, J. - (1.) IN Jagdish Ram's case (supra), this court has held that the record which has been submitted by the police is a material placed on the record and it is the duty of the court to consider that record and then to arrive at its own conclusion whether in such a case, process should be issued against the accused or not and that if the Magistrate has not looked into such material and issued process then it amounts to abuse of the process of the court and grave miscarriage of justice. It is true that a Magistrate is not debarred from taking cognizance on a complaint merely on the ground that he earlier declined to take cognizance on the police report as has been held in Gopal Vijay Verma's case (supra) and followed by this Court in Janki Prasad's case (supra) but it is the bounden duty of the Magistrate to consider the allegations made in the complaint and the statements of the complainant u/S. 200 Cr.P.C. and witnesses u/S. 202 Cr.P.C. as also the result of the inquiry or investigation, if any, u/S. 202 Cr.P.C. and if he is of the opinion that prima facie an offence is made out then he is competent to take cognizance against the accused and issue process and in case, if he is of the opinion that there is no sufficient ground for proceeding then he shall dismiss the complaint.
(2.) IN the case on hand, the learned Magistrate has not at all considered the report of the S.H.O., P.S., Sardar Shahar dt. 24.10.87, which was accompanied with the statements of the complainant and her witnesses. As mentioned earlier, the report was sent for by the Magistrate by sending a copy of the criminal complaint. Thus, the said report constituted material u/S. 202 Cr.P.C. Consideration of the material under Secs. 200 and 202 Cr.P.C. is not an empty formality. Such consideration cannot be done in a perfunctory or mechanical manner or by adopting a superficial approach. Therefore, non -consideration of the aforementioned material u/S. 202 Cr.P.C. ignoring the same and taking cognizance is tantamount to abuse of the process of the court and on this ground, the impugned order cannot be sustained.
(3.) A bare perusal of Section 405 IPC shows that in order an offence of criminal breach of trust may be said to have been committed, it, must be shown that the alleged offender was entrusted with property or with any dominion over property and that he dishonestly misappropriated or converted to his own use that property, or he dishonestly used or disposed 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 other person so to do. It shows that in additional to entrustment of the property in favour of the accused, it must be shows that the accused has dishonestly misappropriated the property or converted the property to his own use or dealt with the property in the manner prescribed in Section 405 IPC. Mere refusal to return the property, which was entrusted to him does not satisfy the requirements of Section 405 IPC. Failure to return the property may be occasioned on account of several reasons. A person, who is called upon to return the property, which was entrusted to him may not receive the notice requiring him to return the property or for reasons beyond control, he may not be in a position to return the property by actually carrying it to the person, who entrusted it. In any case mere failure to return the property does not constitute an offence of criminal breach of trust u/S. 405 IPC. It is a quite different matter. If from the act of not returned the property, it is inferred that the person to whom the property was entrusted is unable to return the property, because he has misappropriated it or that he is unable to return it, because he is converting the property for his own use in a dishonest manner. The offence u/S. 405 IPC is therefore, committed when the property which was entrusted to the accused was actually misappropriated or dishonestly converted for his own use or is otherwise dealt with in the manner indicated by Section 405 IPC.;