2012 (1) TMI 352

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....e which the charge under section 406 IPC was ordered to be framed. 2. The brief facts necessitating the present petition are that the complainant on 30.10.1998 lodged a complaint at police station, Lahori Gate alleging that a file of the complainant containing Sales Tax Forms has been misappropriated by the petitioner. On enquiry a report was given by the ACP concerned that no case is made out. The complainant/respondent No. 2 filed a criminal writ before this court against the police officials which was disposed of with direction to the DCP, North, to look into the complaint and proceed in accordance with law. In pursuance of the direction of this court the ACP conducted an enquiry and submitted a report concluding that an offence under s....

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....on that there was statutory bar contained in section 397(3) Cr.P.C. for the second revision petition. The power of this Court and that of the Court of Sessions, so far as a revision is concerned, are concurrent. The intention of the Legislature under section 397(3) Cr.P.C. is definite and the scheme therein is unambiguous and clear. Sub section (3) does not permit the repetition in exercise of jurisdiction of revision under section 397(1) Cr.P.C. It curtails the chance availing second remedy and therefore, an unsuccessful revisionist in the court of Sessions cannot be entertained for the second time by the High Court. In fact, sub section (3) intends and aims to secure finality. The choice lies with the revisionist either to file revision d....

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....t. Reference in this regard can be made to the judgments of the Supreme Court in Madhu Limaye Vs. State of Maharashtra (1977) 4 SCC 551, State of Orissa Vs. Ram Chander Aggarwal, AIR SC 87, Raj Kapoor Vs. State (Delhi Administration) 1980 Cri.L.J. 202, Krishnan & Anr. Vs. Krishnaveni & Anr and Kailash Verma Vs. Punjab State Civil Supplies Corporation and Anr (2005) 2 SCC 571. 6. Now having seen the dictum of law that the second revision petition was ordinarily not to be entertained by this court and it was only in those cases which would come within the parameters of invoking inherent jurisdiction under section 482 Cr.P.C. and under Article 227 of the Constitution of India, that such a petition could be entertained, I may proceed to see as....

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.... barred. The essential ingredient of the offence of criminal breach of trust is not the demand, but the refusal to accede to that demand. So long as there is no refusal on the part of the accused there does not arise the question of breach of trust. Here, the allegations against the petitioner are that he had come to the shop of the complainant and asked him to show the Sales Tax Forms. When the file was shown to him, he informed that there was difference in the accounts pertaining to the business and he desired to take the file containing those forms. Thereupon, referring to the business dealings and good relations which they had, the petitioner took away the file with the promise to return the same as and when the differences in the accou....

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....apsed until the cognizance could be taken or the order of process could be passed. Since the complainant continued requesting the petitioner to return the file and it was not returned for two years, the complainant was compelled to file a complaint with the police on 30th October 1998. I do not find any merit in the submission that the complaint was time barred. 10. With regard to the submission that there was no case made out under section 406 IPC, it may, at the outset, be borne in mind that section 405 IPC which defines criminal breach of trust does not contemplate the creation of a trust with all the technicalities of the law of trust. It contemplates the creation of relationship whereby the owner of the property makes it over to anoth....

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....d. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and Judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matte....