ORDER

1. The National Insurance Company Limited and its Chairman-cum-Managing Director, Manager, Assistant General Manager; Manager, Complaint Cell; Senior Divisional Manager; Branch Manager and Assistant Administrative Officer have filed this application under Section 482, Cr.P.C. for quashing the impugned order dated 13-1-84 taking cognizance of the offences under Sections 406, 420 and 120B of the Indian Penal Code on the basis of a complaint No. 172 of 1983 filed by Narendra Kumar Jhanjhri, complainant-Opposite party.

2. The complainant-opposite party has said in the said complaint that he is the proprietor of M/s. Premier Glass Industries, Jhumritalaiya (in short 'the Industries'), that on 5-10-81 the Industries was insured on payment of Rs. 6,900/- for one year under Comprehensive Policy No. 456/P/3101278/ 81 and 7501188 by the National Insurance Company Ltd. against all kinds of Natural calamities, theft and burglary and the policy was issued for ten lakhs, that the proprietor was induced by the accused No. 7 (petitioner No. 8) namely K.K. Choudhury, Assistant Administrative Officer who was the then Branch Manager of the National Insurance Company at Jhumritalaiya. This K. K. Choudhury, the then Branch Manager of the National Insurance Company by giving false assurance asked the proprietor of the Industries to pay Rs. 6,900/ - for such policy as a premium for a period of one year on which the proprietor of the Industries got his Industries insured with the said Insurance Company and delivered a cheque No. 357751 dated 5-10-81 drawn on the State Bank of India, Jhumritalaiya Branch for Rs. 6,900/-. During the relevant period the Industries was under mortgage with the State Bank of India, Jhumritalaiya, on account of loan advanced to its proprietor for the development of the Industries. On payment of Rs. 6,900/- as per annum premium at the time of getting the Industries insured the Insurance Company granted a receipt No. 1336052dated 10-10-81. On 25-3-82 the insured premises were badly damaged resulting in almost closure of the entire Industries because of lightning squall followed by cyclonic storm which was natural calamity beyond the human control. This matter was immediately reported to the police who made proper investigation into the matter. The incident was immediately reported to the Insurance authorities concerned and claim was made for Rs. 6,64,548/- (i.e. actual loss after deduction of salvage value), the loss sustained by the said Industries on which the Insurance Company appointed a surveyor who surveyed and verified the loss and damages sustained due to abovemention-ed calamities. Because the proprietor was facing financial crisis therefore he invited partners for the said Industries and on his requests Narendra Kumar Jhanjhri, complainant-opposite party and Manmal Jhanjhri became the partners to run the firm and this fact was brought to the knowledge of the authorities including Mr. A. K. Gupta, Investigator, Calcutta. Several reminders were issued to the authorities i.e. the accused persons to settle the claim and also oral requests were made to all the accused persons to make good the loss as promised and assured by them which is covered under the policy referred to above. The accused persons who have dishonest intention to cheat the proprietor and his partners did not pay any heed to the requests and reminders sent to them. Ultimately the complainant being a managing partner of the said Industries instructed his lawyer to give a pleader's notice to the accused persons. When the notices were served upon the accused persons, the Divisional Manager, Patna, sent a reply to the complainant by his letter dated 12-10-83 and refused to pay the claimed amount of the complainant. On receipt of this letter the complainant-opp. party along with witness No. 2 went to the superior authority (accused No. 3) to know the actual position and circumstances under which the reply was given to him, but he was told that the matter was under consideration and it would be settled by the third week of December 1983 positively and so the complainant was misled by the representation that the matter would be finalised as assured by the accused persons. The complainant's brother witness No. 4 went to Calcutta to request the accused No. 3 to expedite the matter but the authorities at Calcutta told his brother that the had authorised the Divisional Manager, Patna, to settle the claim and to pay the amount. Then the complainant waited till the 29th December, 1983 but the accused did not settle the claim nor paid any amount. The partner of the complainant with utmost good faith entrusted Rs. 6,900/ - to the accused persons and the accused persons dishonestly misappropriated the said amount to their own use and they did not discharge the legal contract which they have made in form of the policy and thereby they committed offence punishable under Section 406, I.P.C. Futher the accused persons have conspired together by, their conduct and liabilities and they agreed to commit an illegal act by not paying the sum claimed for the loss sustained and thereby they were liable to be punished under Section 120B, I.P.C.

3. The learned Judicial Magistrate examined the complainant on solemn affirmation and his three witnesses namely Satyanarain Prasad (P.W. 1), Binod Kurnar Sarraf (P.W. 2) and Suresh Jhanjhri (P.W. 3). The learned Judicial Magistrate perused the copy of the complaint, statements of the three witnesses and after seeing the photostat copies of the receipts, notices, acknowledgments and records found a prima facie case under Sections 406, 420 and 120B, I.P.C. against the accused persons and issued notices to them (petitioners) and fixed 3-2-84 for their appearance in the Court. The petitioners filed this application on 9-3-84 and got an interim order dated 12-3-84.

4. Learned Counsel for the petitioners urged that it is a case of civil liability and a civil suit is pending in respect of this matter between the parties and so a criminal prosecution is not maintainable. Looking to the complaint itself no case for prosecution is made out and the prosecution is bad in law. No sanction has been obtained for launching the prosecution as the offences complained are in the discharge of their official duties. Lerned Counsel for the complainant-opposite party on the other hand argued that even if a civil remedy is available there is no bar to file a criminal prosecution if an offence is made out. Looking to the complaint itself the offences complained are made out and whatever matter is there it is to be considered in support of the averments made in the complaint. These are the matters of evidence which cannot be decided at this stage. The learned Magistrate at the time of taking cognizance is to consider only as to whether a prima facie case is made out after looking to the complaint, statement of the complainant and three witnesses and also the documents. No sanction is required for the prosecution of the accused as the offence has not been committed by the accused in the discharge of their official duties. Lastly it was argued on behalf of the complainant-opposite party that if at all it appears to the learned Magistrate after the appearance of the accused and showing cause that nothing is made out for proceeding, the Court concerned will discharge the accused, but at this stage when the evidence is to come, to quash the complaint saying that it is not maintainable is a denial of justice.

5. To appreciate these contentions of the learned Counsel for the parties, it will have to be seen as to what is contained in the proposal for the fire insurance company and the risk covered by the policy and also the allegations in the complaint. Annex.-3 is the proposal for fire insurance. It shows policy No. 3101278. It also bears a number 1336052 dated 10-10-81. Name of the proposer is M/s. Premier Glass Industries and the name of owner of the premises is Sri Binod Kumar Shroff. Premises used by the proposer is a Factory. Other details have been given in the various columns. The property to be insured is a building valued at two lakhs and the stock in trade or merchandise consisting of as per list attached is of Eight Lakhs. Thus the total conies to Rs. 10,00,000/- and the period of insuranc is 12 months from 5-10-81 to 5-10-82. Annexure -4 is the fire policy which mentions that the company agreed that if after the payment of the premium the property insured described in such schedule or any part of such property be destroyed or damaged by fire (including Fire resulting from explosion), lighting, explosion of boiler used for domestic purposes only, explosion of gas used for domestic purposes only or for lighting or heating in a building not forming part of any gas works, in respect of which insured shall have paid and if the company shall have accepted the premium required for the renewal of the policy, the Company will pay to the insured the value of the property at the time of the happening of its destruction or the amount of such damage or at its option reinstate or replace such property or any part thereof.

6. Annexure-6 is the policy which mentions insurance against loss or damage by fire resulting from expiration or lightning. In the complaint it has been mentioned that the premium of Rs. 6,900/- for a year has been paid and the cheque for the same has been issued in view of the proposal of the fire. The additional risk of strike, riot, malicious damage and also for theft and burglary is also there. Information to the police dated 26-3-82 (Annexure-2) shows that on 25-3-82 at about 8.30 p.m. hail storm came which caused damage to the goods of Glass Factory as the goods were blown out. Some of the goods were recovered and some goods were kept near about so assistance of police was required for the restoration of the goods to the said factory. In the complaint it has been said that on 25-3-82 the insured premises were badly damaged resulting in almost closure of the entire factory because of the lightning sequel followed by cyclonic storm which was natural calamity beyond human control and thereafter the matter was immediately reported to the police to make proper investigation into the matter. When the matter was reported to the insurance company for the claim the Surveyor investigated into the matter and reported that the loss has been occured due to storm and rain which peril was not covered under the policy of the insurance company and hence the complainant-opposite party filed a complaint in respect of his claims.

7. The proposal was for fire insurance. The fire policy has mentioned loss or damage by fire resulting from explosion or lightning. The complaint mentions that the risk covered loss on account of storm and cyclone for the building at Rs. 2,00000/-. It has been definitely averred that the loss has been occured on account of the natural calamity of cyclone and because of the lightning sequel followed by cyclonic storm the entire industries was badly damaged. Thus it is all a matter of evidence which the Court below has considered at the relevant time after looking to the F.I.R. policy papers and the complaints which all showed that there were entrustment of the of money. As to whether the opposite party has been cheated or not is a question of fact which cannot be decided here. As to whether the natural calamity as said by the complainant-opposite party occurred or not can be decided by the evidence. At this stage it cannot be said that the offence is not made out. All these matters can be decided after looking to the evidence led by the parties. But this much can be said that when the natural calamities have taken place on account of lightning and damage has been caused, then whether the report of the Surveyor should be considered as conclusive and if by accepting the report the policy has been refused then how far these officers who are concerned with the insurance company are responsible is, a question of fact which cannot be determined finally, at least against the complainant-opposite party.

8. If during the discharge of the official duties some offence has been alleged then it cannot be said that because it is a civil liability the prosecution is to be thrown out. In the case of Jaswant Rai v. State of Bombay, AIR 1956 SC 575 in para 12, the Supreme Court observed that civil liability is no bar to a criminal prosecution. In the case of Misrilal Mangilal Maternity & Child Welfare Centre Construction Committee, Hyderabad, v. K. Rajmallu, 1978 Cri LJ 1360 (Andh Pra) it has been observed at page 1362 (Para 4) :

"The law is well-settled that the mere pendency of a civil proceeding concerning the matter involved is no bar to the initiation of criminal proceedings, provided the action complained amounts to a criminal offence. Of course, if the disputes between the parties is purely of a civil nature, the Courts cannot allow the parties to get the disputes settled in a criminal Court by a camouflage of the civil dispute as a criminal matter. The allegations in the complaint, however, disclose criminal offences and if they are true, the respondent cannot escape their liability under the criminal law merely because a civil suit also has been filed against them in respect of the same matter. When by his action an accused person incurs both civil and criminal liabilities, the mere fact that his civil liability is being enforced is no ground for an exemption of his criminal liability."

In the case of Gopal Chauhan v. Smt. Satya, 1979 Cri LJ 446 (Him Pra) in para 16 at page 450 it has been observed :

"...there cannot be any absolute proposition of law that whenever a civil proceeding is pending between the parties criminal proceedings can never be proceeded with. There are many transactions which result in civil as well as criminal liabilities. Cheating, misappropriation and theft are undoubtedly the transactions of this type. Therefore, simply because civil proceedings between the parties are pending it cannot be said that the present proceeding cannot go on before the learned Magistrate."

In the case of Laxmi Narayan Sah v. State of Bihar, 1983 BBCJ 518 it was held :--

"In view of the fact that the matter was pending before the Civil Court for realisation of money, it was not desirable and proper that the petitioner should also be dragged in the criminal court for the same cause of action and the continuance of the criminal proceeding was an abase of the process of the Court. But the facts of that case was entirely different from the facts of this case, In this case there was a contract between the parties and under the terms of the agreement the petitioner had to deposit security and also to furnish indemnity bond. There was a Clause in the agreement that, all disputes and differences arising out of or in any way touching or concerning this contract whatsoever shall be referred to the sole arbitration."

9. In the instant case same is not the position. In the case of Kundan Kumar v. State of Bihar, 1983 PLJR. (HC) 405 a learned single Judge of this Court referring to the decision in the case of Laxmi Narayan Sah v. State of Bihar (supra) has taken the same view at page 414 (para 28) as was taken in the case of Misrilal Mangilal Maternity & Child Welfare Centre Construction Committee, Hyderabad v. K. Rajmallu (supra). Thus there is nothing to show that civil contract is to be enforced or that civil proceeding alone is a remedy. Because on the allegations prima facie case has been made for offence under Sections 406, 420 and 120B, I.P.C., it cannot be said at this stage that there is no case at all.

10. Learned counsel for the petitioners in support of his contention urged that there was no sanction for the prosecution of the petitioners and for this he has referred to a decision in the case of K. P. Modi v. Basant Kumar Sinha, 1978 BLJR 158, in which the goods of the complainant were insured against the damage by flood and an agreement came into and in response to the claim of the complainant a Surveyor submitted his report which did not support the claim of the complainant and the insurance company refused to settle the claim in terms of the insurance covered. This Court observed at page 162 para (8) :

"All these acts were certainly regular normal acts of the Insurance Company and its officers. The question, therefore, arises whether these three petitioners can be prosecuted without the sanction of the appointing authority...."

Learned counsel further referred to the provisions of the General Insurance Business (Nationalisation) Act, 1972 (Act No. 57 of 1972) wherein Section 31 deals with public servant and Section 38 deals with protection of action taken by the public servant in good faith. Learned counsel for the complainant-opposite party has referred to Section 107 of the Insurance Act, 1938 which provides:

"107. Previous sanction of Advocate-General for institution of proceedings:--Except where proceedings are instituted by the Controller or an Administrator appointed under Section 52A, no proceedings under this Act against an insurer or any director, managing agent, manager, secretary or other officer of an insurer or any liquidator or any employee or agent of an insurer or any person who is liable under Sub-section (2) of Section 41 or any other person shall be instituted by any person unless he has previous thereto obtained the sanction of the Advocate-General of the State where the principal place of business in India of such insurer is situate to the institution, of such proceedings."

Section 38 of the General Insurance Business (Nationalisation) Act, 1972 is as follows:--

"38. Protection of action taken in good faith :--

No suit, prosecution or other legal proceeding shall lie against any officer of the Central Government or officer or other employee of the Corporation or of the acquiring company for anything which is in good faith done or intended to be done under this Act."

11. In the case of Management of the Advance Insurance Company Ltd. v. V. Shri Gurudasmal, Supdt. of Police, AIR 1969 Delhi 330 at page 349 it has been observed in para 39:--

"A perusal of Section 104 and 105 of the Insurance Act makes it clear that they are not identical with the offences punishable under Sections 405 and 409 Indian Penal Code, for which the petitioner is being prosecuted. In the State of Bombay v. S. L. Apte, AIR 1961 SC 578 the Supreme Court has also specifically held that the offence under Section 409 Indian Penal Code is not identical- with the offence under Section 105 of the Insurance Act. Further, the offence of conspiracy punishable under Section 120B of the Indian Penal Code is not reproduced in the Insurance Act. The respondent could not, therefore, be expected to prosecute the petitioner under Section 105 of the Insurance Act rather than under Sections 405, 409 and 120-B of the Indian Penal Code, if the latter offences were more suitable to the facts of the case. There is nothing to show at all that the facts of the case are better covered by Section 105 if the Insurance Act and that they are not covered by Sections 405, 409 and 120-B of the Indian Penal Code. Therefore, the question of the respondents trying to by-pass the requirement of sanction under the Insurance Act does not arise at all. We find so."

Thus the offences under the Insurance Act are not like the offences under Sections 405, 409 or 120-B, I.P.C. and so no sanction is required for proceeding under the Insurance Act. Yet the question will remain whether the particular act done by the public servant was in the discharge of his official duty and further the official duty does require the official to commit the offence. Commission of an offence is not a part of the official duty rather non-commission of officer in the discharge of official duty in accordance with law brings the officials under the umbrella of Section 197, Cr. P.C. In the case of Harihar Prasad v. State of Bihar, 1972 (3) SCC 89 : 1972 Cri LJ 707, in para 66 it has been observed :

"As far as the offence of Criminal conspiracy punishable under Section 120-B read with Section 409 of the Indian Penal Code and also Section 5(2) of the Prevention of Corruption Act are concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."

This is what has been held throughout by all the Courts in India.

12. How this question is determined is a question of fact and not law as it varies from case to case. That is why the Supreme Court observed in the case of Bhagwan Prasad Srivastava v. N. P. Mishra, AIR 1970 SC 1661 : (1970 Cri LJ 1401) (Para 5) that the question where a particular act done by a public servant in the discharge of his official duty is substantially one of fact is to be determined on the circumstances of each case. So in this particular case no doubt the officers of the National Insurance Company could not be expected to know that cyclone will come and cause harm and the complainant will be put to loss and so the offence is to be committed. But it can be said thereafter that if the Surveyor submitted report which brings him in the clutches of law then definitely the officers concerned may be held liable, if those officers are connected in any manner whatsoever. They may take the plea of administrative lapses but if that administrative lapse amounts to commission of an offence that cannot bring them out from the clutches of law. They will have to show their administrative lapse or that the offence has not been committed by them. These are the questions of fact and nothing can be presumed for or against unless the whole evidence comes before the Court. At the initial stage all materials are not needed as the complaint is not expected to contain the entire material. The facts constituting the offence should be stated in the complaint and if they are stated then it will be in the evidence to be supported by the complainant and then the accused is to cross-examine the witnesses to demolish the same. The entry of the offence is not to be blocked on technicalities. No doubt the Court is to consider at the initial stage as to whether there are bleak chances of conviction as observed by the Supreme Court in the case of Madhav-rao Jiwaji Rao Scindia v. Sambhaji Rao Chandroji Rao Angre, 1988 BUT 149 : AIR 1988 SC 709. But at the initial stage when the complaint has given out some material it should not be held otherwise without further evidence that no case is made out. At the initial stage the Court is to see as to whether prima facie case is made out and whether there is material to proceed and not the Court is to judge the merits of the case and to see as to whether it will end in conviction or acquittal. Such judging of the case for conviction or acquittal without evidence will be judging of the case without evidence.

13. Another question will arise as to whether all the petitioners are liable for the offences. The petitioner No. 1 is the National Insurance Company itself. Petitioner No. 2 is the Chairman-cum-Managing Director, Petitioner No. 3 is the Manager, petitioner No. 4 is the Assistant General Manager, petitioner No. 5 is the Manager of complaint Cell, petitioner No. 6 is the Senior Divisional Manager at Patna, petitioner No. 7 is the Branch Manager at Hazaribagh and petitioner No. 8 is the Assistant Administrative Officer of the Company. In the case of Municipal Corporation of Delhi v. R.K. Rahotgi, AIR 1983 SC 67 : (1983 Cri LJ 159) it has been observed (paras 15, 16) that the Manager of the company who is directly incharge of the affairs could not fall in the same category as the Directors and that the Manager because from the very nature of his duty must be in the knowledge about the affairs of the sale and manufacture of the disputed sample, and so from the very nature of his duties it can be safely inferred that the Manager would undoubtedly be vicariously liable for the offence, vicarious liability being an incident of an offence under the Act. Hence the order of the High Court quashing the proceeding against the Manager was quashed. In another case of Municipal Corporation of Delhi v. Purshotam Das Jhunjunwala, AIR 1983 SC 158 : (1984 Cri LJ 172) where also the Chairman and the Managing Director were involved, it was observed in para 5 that in the instant case, a clear averment has been made regarding the active role played by the respondents and the extent of their liability and as to what will be the evidence against the respondents is not a matter to be considered at this stage and would have to be proved at the trial, and for the purposes of quashing the proceeding only the allegations set forth in the complaint have to be seen and nothing further.

14. Later on a Full Bench of this Court in the case of Mahmud Ali v. State of Bihar, 1986 Pat LJR (HC) 123 : (AIR 1986 Pat 133), in which Mahmud Ali was the Managing Director, it was observed in para 10 that the factum of being the Managing Director of the Company is by itself sufficient to attract the provisions of Section 47(1) of the Water (Prevention, Control and Pollution) Act 1974 and vicarious liability is specified therein. In another Full bench decision of this Court in Madan Mohan Upadhya v. State of Bihar, 1986 Pat LJR (HC) 537, this Court observed about Section 10(1) of the E.C. Act as under :---

"....Section 10(1) spells out a deeming fiction vicarious liability and also a rule of evidence laying the burden of proof on persons in charge of and responsible to the company for the conduct of its business." (para 13).

Further it was observed in para 14 :

"It is settled beyond cavil that rules of evidence and deeming fictions are not to be expressly spelt out and pleaded. They are matters, which are for consideration and application in the course of the trial. To require that the complaint itself must plead a rule of evidence or, in terms, spell out a deeming fiction provided by the State therein is an argument bordering on hypertechnicality. One must always keep in the broader perspective that the administration of criminal law is more a matter of substance than form and it should not be allowed to be pettifogged by obscure technicality. This argument seems now to be wholly well covered and concluded by the recent Full Bench judgments of this Court in Ram Kripal Prasad v. The State of Bihar, 1985 Pat LJR (HC) 271 : (AIR 1986 Pat 254), Mahmud Ali v. The State of Bihar (supra) and Badri Prasad Gupta v. The State of Bihar, (1986 Cri LJ 699) (FB) (supra)."

Thus the company and its officers as narrated above are also vicariously liahle unless they are able to prove otherwise by the evidence.

15. The other question that arises is as to whether ingredients of the offence under Section 420, I.P.C. is made out or not. It cannot be said that when the insurance was done the intention of the persons was to commit offence Under Section 420, I.P.C. If the complainant would have known that he is going to be cheated, definitely he would have never taken the policy and would have flatly refused, but believing in the proposal for the policy and relying upon the company and its officers in good faith the complainant obtained the policy and thereafter paid the premium as required for a year; then there is entrustment of the amount which is undisputed. Thereafter when the cyclone came and Surveyor submitted his report then the question arose whether the 'offence Under Section 420, I.P.C. was made out or not. No doubt subsequent act cannot become the sole criteria for judging the intention of the accused and such dishonest intention cannot be inferred from the mere fact that the accused subsequently failed to fulfil the promise as observed by the Supreme Court in the case of State of Kerala v. S. A. Pareed Pillai, AIR 1973 SC 326 : (1972 Cri LJ 1243). However, in the case of Hari Prasad Chamaria v. Bishun Kumar Surekha, AIR 1974 SC 301 : (1974 Cri LJ 352) the Supreme Court observed at page 302 (of AIR) : (at p. 354 of Cri. L. J.) :--

"We find that the complaint does not disclose the commission of any offence on the part of the respondents under Section 420, Indian Penal Code. There is nothing in the complaint to show that the respondents had dishonest or fraudulent intention at the time the appellant parted with Rs. 35,000/ -. There is also nothing to indicate that the respondents induced the appellant to pay them Rs. 35,000/- by deceiving him. It is further not the case of the appellant that a representation was made by the respondents to him at or before the time he paid the money to them and that at the time the representation was made, the respondents knew the same to be false. The fact that the respondents subsequently did not abide by their commitment that they would show the appellant to be the proprietor of Drang Transport Corporation and would also render accounts to him in the month of December might create civil liability for them, but this fact would not be sufficient to fasten criminal liability on the respondents for the offence of cheating."

16. In the aforesaid decision of Hari Prasad Chamaria v. Bishun Kumar Surekha, (supra) the appellant was to be shown as the proprietor of the Transport Corporation and that the accused were to render accounts which was not done so civil liability was fastened, but here the case is different. There is not only the entrustment of the money but also a report has been sent by the Surveyor with the result that the complainant, though in spite of suffering the loss on account of the cyclone, has been deprived of the amount. Thus the matter has been left to the entire sole discretion of the Surveyor and it is for the high-ups of the company to accept the same and become vicariously liable for the acts because there also the company is to share the profit and loss of the amount. A Surveyor may, for the reasons best known to him may submit correct or false report. It is a matter of evidence to be shown that the Surveyor had intention from the very beginning that if there is any damage to any property insured under the terms of the insurance, then he will submit false report and may cheat a person. If it is held for all times to come that the Surveyor is the final authority for holding that whether an offence is made or not then it will be a denial of justice to the complainant who innocently entered into that transaction and had been deprived not only of the money entrusted by him but also the benefit which is legally accrued to him. All these are the matters of evidence which cannot be judged at this stage as observed by the Supreme Court, it is to be judged from case to case. It has been observed in the case of Krishan Kumar v. Union of India, AIR 1959 SC 1390 : (1959 Cri LJ 1508) where it was a case Under Section 5(1)(c) of the Prevention of Corruption Act at page 1393 (of AIR): (at p. 1511 of Cri. L. J.) (para 9) the Supreme Court observed:

"In the case of a servant charged with misappropriating the goods of his master the elements of criminal offence of misappropriation will be established if the prosecution proves that the servant received the goods, that he was under a duty to account to his master and had not done so. If the failure to account was due to an accidental loss then the facts being within the servant's knowledge, it is for him to explain the loss. It is not the law of this country that the prosecution has to eliminate all possible defences or circumstances which may exonerate him. If these facts are within the knowledge of the accused then he has to prove them. Of course the prosecution has to establish a prima facie case in the first instance. It is not enough to establish facts which give rise to suspicion and then by reason of Section 106 of the Evidence Act to throw the onus on him to prove his innocence."

Here it is undisputed by the parties that the amount of Rs. 6,900/- has been paid vide receipt dated 10-10-81. So it shows that the amount has been entrusted for a period of only one year and after the expiry of one year the policy was dead. Because of this the liklihood of the amount not being returned is there or the benefit accrued to the complainant is not there. So there is entrustment and apparent misappropriation thereof which makes out a prima facie case for trial of the offence. As said by the Supreme Court in the case of Pratibha Rani v. Suraj Kumar, AIR 1985 SC 628 : (1985 Cri LJ 817). So from these facts at least a prima facie case under Sections 405 and 406, I.P.C is made out.

17. When a complaint is filed, allegations are made and from the allegations a conclusion is arrived at that an offence is made out, so the cognizance of the offence is taken and then under what section the offence comes is a matter to be decided by the Court and that is why at the time of framing of the charge sometimes offences mentioned in the complaint are not charged and other offence which is made out and proved from the complaint is charged. At this stage of taking the cognizance the Court is concerned only as to whether prima facie evidence is there to proceed with the case. The Court is not to judge the case of this stage from the point of view of conviction or acquittal as it is a matter of evidence. At this stage the defence of the accused is not the concern of the Court and it is only for the accused to appear and then put his defence which is to be considered by the Court below at the time of framing of the charge. To quash the proceeding on the simple assertion that the chances of conviction are bleak or from the defence point of view no case is made out will be a denial of justice as these things are to be judged in the light of the evidence that are coming or the materials brought by the accused. If the Court finds that there is want of jurisdiction, sanction or the abuse of the process of the Court is staring the face of the Court then the Court will definitely prevent the abuse of the process of the Court and will quash the proceeding.

18. In the circumstances no case is made out for quashing the prosecution of the petitioners as it is not an abuse of the process of the Court. But an opportunity should be given to the accused to appear and thereafter make their submissions there in the Court below giving out all the facts. After hearing the parties it will be open to the Court to frame charges against the accused if there are materials against the petitioners otherwise an order of discharge of the petitioners may follow.

19. In the result this application is dismissed. The interim order passed by this Court on 12-3-84 is vacated. Let the lower Court's records be sent to the Court for the disposal of the case in accordance with law.