* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 863 OF 2006 M/s.Mars Restaurant & Ors. ...... Petitioners V/s. The State of Maharashtra & Ors. ...... Respondents --------- Mr.Rajendra Sorankar,adv.for petitioner. Mr.K.M.Irani i/by.Mr.A.A.Kocharekar,adv.for respondent no.2. Mrs.M.M.Deshmukh, APP for State. CORAM: SMT.R.P.SONDURBALDOTA, J. DATED: 31ST MARCH, 2009. P.C. : 1. Heard counsels for both sides. 2. The petitioners carry on business of running and managing restaurants in various names like Dosa Diner, Jazz by the Bay, Just Around the Corner, Roti, Three Flights etc. Respondent no.2 is the owner of the premises at Pune. On 12th October, 2000 a franchisee agreement was entered into between the two for running a restaurant by the petitioners from the premises of respondent no.2. Clause-9 of that agreement refers to equipments, furniture and fixtures presently lying in the premises and belonging to the franchisee which company is entitled to utilize. Similarly, Clause-14 thereof refers to the * 2 * improvements, equipments, furnishings, furniture, decoration etc that would be brought by the company into the premises. Both the clauses do not specify the articles and equipments belonging either to the petitioners or those belonging to respondent no.2. Clause-14 provides for a locking period of nine years for the agreement and states that if the company terminates or rescinds the agreement prior to the period of nine years, all the equipments, furnishings, decorations etc carried out by the petitioners in the premises would belong to respondent no.2 and that the company shall not be entitled to remove the same. Pursuant to the agreement, the company started running restaurant from the premises. However, it appears that the restaurant did not do business to the satisfaction of the petitioners. 3. Respondent no.2 filed a complaint against the petitioners for commission of offences punishable under Section 380, 406, 420 read with Section 34 and Section 120-B IPC alleging that on the nights between 24th and 26th April, 2002 the petitioners removed the entire equipments, furnishings, furniture, decoration etc.from the premises. For that purpose, no permission of respondent no.2 was taken at any time. The complaint was initially filed with the police. When the police did not take any action on the complaint, respondent no.2 filed * 3 * the private complaint. 4. By his order dated 2nd August, 2002 the learned Judicial Magistrate First Class, Pune before whom the complaint was filed passed an order for investigation under Section 156(3) Cr.P.C. and directed the police to submit a report in the court. The report filed was not favourable to the complainant. The learned Magistrate considered the report and after giving hearing to the complainant, passed the impugned order dated 29th September, 2004 differing from the opinion of the police. In the order he has given reasons that taking into consideration the material collected by the Investigating Officer, the recitals in the complaint and the terms and conditions of the Franchisee Agreement, there was sufficient ground for proceeding against the petitioners for the offence punishable under Section 406 read with Section 34 IPC. Therefore, he issued process only for the offences punishable under Section 406 read with Section 34 IPC. 5. The above order came to be challenged by the petitioners before the Sessions court at Pune by filing Criminal Revision Application No.771 of 2004. That was heard and rejected by the second impugned order dated 22nd October, 2005. 6. Mr.Sorankar, learned counsel for the petitioners submits firstly, that there was no article in the premises belonging to * 4 * respondent no.2 which could be said to have been entrusted to the petitioners. He submits that the articles listed at para-5 of the complaint do not find reference anywhere in the agreement between the parties. Though the articles have not been specifically listed in the agreement, Clause-9 thereof makes it clear that there were equipments and articles belonging to respondent no.2 in the premises. The complainant further in the same para lists the articles brought by the petitioners into the premises. There is no dispute as regards these articles. Just as the articles belonging to respondent no.2 are not mentioned in the franchisee agreement, the articles and equipments to be brought by the petitioners, are also not listed therein. There is no dispute that the petitioners had removed the articles from the premises as alleged in the complaint. The removal of the articles is now sought to be explained by relying upon letter dated 27th April, 2002 said to have been sent by petitioner no.2 to respondent no.2 in which it is stated that the petitioners desire to re-decorate the premises and that there will be no change in the terms and conditions of the agreement between the two. This letter can be of no assistance to the petitioners since it was sent after respondent no.2 filed complaint with the police. In any case, any defence of the petitioners to the complaint or the documents in support of such * 5 * defence are not to be taken into consideration at this stage. 7. It is next contended by the learned counsel for the petitioners, that the complaint as filed does not prima-facie indicate that there was entrustment of the articles to the petitioners by respondent no.2. The articles belonging to respondent no.2 listed at para-9 of the complaint were as per the complaint, entrusted to the petitioners at the time of execution of the agreement. Therefore, it cannot be said that the ingredients of entrustment are not made out in the complaint as filed. 8. At the present stage of the proceedings, when the court has to consider whether the order passed by the learned Judicial Magistrate First Class issuing process under Section 406 read with Section 34 IPC is justified or not, all that the court has to see is whether the complaint as filed, taking every allegation made therein as true, discloses commission of the offence. The ingredients of the offence of Section 406 IPC are definitely disclosed in the complaint filed by respondent no.2. 9. Learned counsel for the petitioners relies upon a decision of the apex court in the case of M/s.Indian Oil Corporation V/S. NEPC India Ltd & Ors. delivered in Appeal (Cri.)No.834 of 2002 to submit that there cannot be any entrustment of the articles of which there is no beneficial * 6 * interest or ownership to any other person. He submits that the other articles listed at para-9 of the complaint which belong to the petitioners cannot be said to have been entrusted to respondent no.2. However, these are not the only articles in respect of which the complaint is filed. The articles include the articles which are claimed by respondent no.2 as well. 10. In all the above circumstances, the writ petition is dismissed in limine. Learned counsel for the petitioners applies for extension of the ad-interim relief granted. Considering the facts and circumstances of the case, the application is rejected. [SMT.R.P.SONDURBALDOTA, J]