IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1210 OF 2009 CRIMINAL APPLICATION NO. 1210 OF 2009 CRIMINAL APPLICATION NO. 1210 OF 2009 Nihar Jharu Jana ...Applicant (Orig.Accused) vs. The State of Maharashtra ...Respondent Mr.Aswin R. Rane for the Applicant. Mr.R.V. Govilkar for the Original Complainant. Mr.S.R. Shinde, APP for the State. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : MARCH 30, 2009 DATED : MARCH 30, 2009 DATED : MARCH 30, 2009 P.C. :- P.C. :- P.C. :- 1. Heard Counsel for the applicant, APP for the State and the Counsel for the complainant. 2. The applicant apprehends arrest in connection with an offence which is registered with Pydhonie Police Station vide C.R. No.29/2008 for the offences punishable under Sections 406, 420 read with 34 of the IPC. 3. Prosecution case is that the complainant had given gold to the applicant herein who is a goldsmith to - 2 - the tune of Rs.3,504.379 grams between 15.11.2006 to 3.5.2007. The applicant, however, prepared gold ornaments only in respect of gold weighing 2638.221 grams. The case of the complainant is that the applicant did not return the balance 866.158 grams of gold. The case of the complainant further is that the applicant thereafter promised to give gold ornaments to the complainant on his giving him additional 500 grams of gold which was done by the applicant and a voucher was given by the applicant being voucher no.64. It is further alleged that thereafter, the applicant demanded additional gold of 150 grams and therefore, additional gold of the said quantity was given by the complainant on 19th April, 2007. It is alleged that thereafter the applicant neither returned the gold nor prepared the gold ornaments as promised by him and therefore, the present application has been filed. 4. Counsel for the applicant submits that this transaction, in question, is purely of civil nature and provisions of Section 406, 420 read with 34 of the IPC are not attracted and therefore, the applicant is - 3 - entitled to get anticipatory bail. It is further submitted that even in the police report which was tendered in the Sessions Court, the police have stated that the gold weighing 3504.379 was given to the applicant between 15.11.2006 to 3.5.2007. It was submitted that there was no material to indicate that 866.158 grams was not returned to the complainant herein. It is further submitted that the gold weighing 150 grams which was allegedly given vide Bill No.103 is dated 19th April, 2007 which was during the period from 15.11.2006 to 3.5.2007 and therefore, could not be considered separately. Further it was submitted that 506 grams gold which was allegedly given by voucher no.64 also could not be treated as additional gold given since no date was given on the said voucher. It was submitted that under these circumstances, the dispute above is of a civil nature, the applicant was entitled to get bail. It is also submitted that initially the police had given a report that the dispute was of a civil nature, similar observation was made by the Sessions Court in the earlier application for anticipatory bail filed by the applicant wherein the - 4 - police was asked to give 48 hours notice to the applicant herein. 5. The submission made by the learned Counsel for the applicant cannot be accepted. There is a very thin line between criminal breach of trust and breach of contract. In a case where the allegation is made that the intention of the applicant was to cheat the complainant and this intention was apparent from the conduct of the accused from the inception of the crime, that in such cases, the case would not be the case of breach of contract but would clearly fall under the provisions of Section 406 and 420 of the IPC. Though it is true that every breach of contract does not amount to breach of trust as defined under the IPC, the circumstances and the conduct between the parties would indicate whether the said breach is a breach of trust or breach of contract. In the present case, the applicant is goldsmith and it is the duty of the goldsmith to return extra gold to his customers which is given for the purpose of making ornaments. The admitted position is that the gold was, in fact, given and part of the - 5 - gold was returned. The question whether the remaining gold was, in fact, returned or not is a question of investigation. The observation made by the Sessions Court and by the police in its earlier report that the transaction essentially is of a civil nature, in my view, is incorrect for the aforesaid reasons. 6. Whenever an application for anticipatory bail is filed, the Court has to see whether the allegations which are made in the said complaint are patently false or not and whether the said complaint is filed to falsely implicate the accused. In the present case, admittedly, certain gold was given by the complainant to the applicant. The applicant, on one hand, admittedly did not return the balance gold and at the same time says that he had not received the said gold though receipts which have been produced by the complainant denies this fact. Under these circumstances, this is not a fit case for grant of anticipatory bail. 7. The custodial interrogation is not the only aspect which has to be taken into consideration by the - 6 - court while considering the allegations which are made in the complaint. The court has to consider the allegations which are made in the complaint, the gravity of the offence and other circumstances. In my view, therefore, this is not a fit case for grant of anticipatory bail. 8. The application is disposed of. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)