- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.87 OF 2001 WRIT PETITION NO.87 OF 2001 WRIT PETITION NO.87 OF 2001 Manoj Dey ...Petitioner vs. 1.Michael Rodrigues S/o F.X.Rodrigues 2.State of Maharashtra ...Respondents Mr.Nusrat Shah a/w Ms Pervin Contractor, Mr.A.K.Gupta, Mr.V.A.Almeida, Ms Ema Almeida i/b Ms Naazish Shah for the petitioner Mr.Y.S.Shinde A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : AUGUST 28,2008 : AUGUST 28,2008 : AUGUST 28,2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The learned counsel for the petitioner states that he has served notice of restoration of the writ petition to the first respondent. He states that the affidavit of service will be filed within a period of two weeks from today. None appears for the first respondent. 2. The prayer in this petition invoking Article 227 of Constitution of India and under section 482 of the Code of Criminal Procedure,1973 is for quashing the proceeding of the private complaint filed by the first respondent against the petitioner. Process has been issued by the learned Magistrate on the said complaint. In view of THE decision of this court in case of V.K.Jain and others vs. Pratap Padode and another reported in 2005 (3) Mh.L.J. page 778, in normal course, the petitioner would have been relegated to the remedy of filing a - 2 - revision application under section 397 of the said Code for challenging the order issuing process. However, I find that on 27th April 2001, this court has entertained the petition and issued rule and therefore, it will be unjust to the parties if after lapse of more than 7 years, they are relegated to the another remedy. In any case, jurisdiction of this court under section 482 of the said Code is not affected by the power of the Sessions court under section 397 of the said Code. 3. The learned counsel for the petitioner has invited my attention to the averments made in the complaint. He submitted that the petitioner is the tenant of the first respondent who has been offering rent to the first respondent. He submitted that there cannot be any entrustment in favour of the petitioner. He submitted that the petitioner had no authority to collect rent on behalf of the first Respondent as alleged by the first Respondent. He submitted that there is no allegation of misappropriation or dishonest disposal of the amount of rent made against the petitioner in the complaint. He, therefore, submitted that the ingredients of section 406 are not made out. 4. I have carefully considered the submissions. I have perused the complaint. In the complaint the first Respondent has claimed that he is the landlord of the building known as - 3 - ‘Xavier Mansion’ at Borivali, Mumbai. He has stated that the petitioner along with one Mr.Shyam Rao and one Shri S.B.Shah were entrusted with the duty of collection of the maintenance charges from the tenants of the premises in the said building. It is alleged that they collected rent and maintenance charges from the 20 tenants up to December 1995. It is the case of the first Respondent that the said S.B.Shah and Shyam Rao informed him that they had handed over the amount collected by them and books of account to the petitioner. Further allegation made in the complaint is that the petitioner inspite of repeated requests has failed to return the books of account and the amount collected. 5. In the earlier part of the first paragraph of the complaint it is alleged that the petitioner and two others were entrusted with the duty of collection of maintenance charges with effect of January 1993. The first Respondent has not given any particulars of the amounts collected by the petitioner. The names of the tenants from whom the amounts were collected are not incorporated in the complaint. The complaint is based on alleged statement of the said Shyam Rao and S.B.Shah to the effect that the amount collected was handed over by them to the petitioner. It is pertinent to note that in the complaint not a single document is relied upon. The names of the witnesses mentioned are "My tenants, Rao and Clerk of A.C.P.". - 4 - 6. Offence of criminal breach of trust is defined by section 405 of the Indian Penal Code. Apart from the fact that necessary averments regarding entrustment of alleged amounts are very vague, there is no allegation disclosing misappropriation or conversion or misuse or disposal of the amounts allegedly collected by the petitioner. In absence of such assertions, by no stretch of imagination ingredients of an offence under section 405 of the Indian Penal Code are made out. Therefore, even if the averments made in the complaint are taken as true on its face value, it is not possible to come to the conclusion that a case for proceeding against the petitioner for offence punishable under section 406 of the Indian Penal Code was made out. Apart from this, there are documents annexed to the petition in the form of notice issued by the Advocate for the petitioner to the first Respondent and the rent receipt issued by the first respondent in favour of the tenant. It must also be noted here that on 27th April 2001, interim relief in terms of prayer clause (b) was granted by which proceeding of the case was stayed. The said relief continued to operate till today. 7. This is a fit case to exercise power of this court under section 482 of the said Code for quashing the proceeding of the case filed at the instance of the first Respondent. Accordingly, rule is made absolute in terms of prayer clause - 5 - (a). JUDGE JUDGE JUDGE