IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2959 OF 2006 Michel D’Souza .. Applicant Versus Wilbert Gonsalves & Anr. .. Respondents Mr.J.S.Kini i/by Ms.Kinjal Haria for the the applicant. Mr.P.A.Pol, A.P.P for the State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 21st March 2009. : 21st March 2009. : 21st March 2009. P.C.: . Heard the learned advocate appearing for the applicant. I have perused the complaint as well as notes of evidence and the impugned judgment and order. The 1st respondent is the 2nd accused. A complaint was filed by the applicant alleging commission of an offence under section 409 of the Indian Penal Code against the 1st respondent and the 1st accused (Mr.Sydney D’Souza). The 1st accused expired during the pendency of the complaint. The learned counsel appearing for the applicant submitted that there were specific assertions in the complaint that it was the 1st respondent (2nd accused) who was the owner of the garage to whom the car was entrusted by the applicant for repairs. He pointed out that averments made in the complaint show that deceased-1st accused was a mechanic employed by the 1st respondent who was the owner of the garage. He has (2) invited my attention to the averments made in paragraph Nos.1, 8 and 9 of the complaint. He invited my attention to the evidence of the applicant in which he has clearly stated that the 1st respondent was the owner of the garage and the other accused was the mechanic. He pointed out that the fact that the vehicle was entrusted to the garage of the 1st respondent and that the other accused was mechanic engaged by the 1st respondent has been established on evidence. He submitted that the car has not been returned to the applicant even till today. He, therefore, submitted that a clear case of commission of an offence under section 409 of the Indian Penal Code was made out. 2. I have given careful consideration to the submissions. In the first paragraph of the complaint there is a vague assertion that the accused "above named" are the persons who own the above auto garage. In paragraph 3 of the complaint, the applicant has stated that he handed over the said car to the accused No.1 (deceased) for carrying out repairs and the said accused had given estimate of Rs.9,000/-. In paragraph Nos.4 and 5 the applicant has set out the demands made by the said accused No.1 (since deceased) and the amount paid by the applicant to the deceased accused. In (3) paragraph No.8 specific allegation is that despite taking an extra amount of Rs.2,000/-, the deceased accused No.1 did not return the said vehicle and therefore the applicant approached the 1st respondent for return of vehicle. In paragraph 9 there is a vague allegation that the vehicle was entrusted to the accused. Thus, the material averments in paragraph Nos.3 to 7 of the complaint are that the vehicle was entrusted to the deceased 1st accused and the amounts were paid by the applicant to the deceased-1st accused. Perusal of the complaint shows that the vehicle was given in custody of the deceased-1st accused and all the amounts were paid by the applicant to the deceased-1st accused. Even in his deposition the applicant has not made out a case that the amounts paid by him were paid to the 2nd accused (1st respondent herein). In fact, in paragraph No.7 of the affidavit, there is a specific case that on 21st April 1993 the applicant had paid sum of Rs.1,000/- to deceased-1st accused by a cheque drawn on State Bank of India. In the cross-examination the applicant admitted that all the cheques were handed over by him to the deceased-1st accused. 3. I have also perused the evidence of P.W.2 Mr.Francis John Fernandis. His evidence as regards (4) entrustment of vehicle is very vague. He has not specifically stated that the vehicle was entrusted to the accused No.2(1st respondent). The stand taken by the 1st respondent in his statement under section 313 of the Code of Criminal Procedure, 1973 is that he had given the place of garage on rental basis to the deceased accused and he was not aware about the facts of the case. 4. If the averments made in the complaint are considered, the case made out by the applicant in his examination-in-chief regarding the role played by the 1st respondent herein is clearly an afterthought. Even all the payments were made by the applicant to the deceased-1st accused. Considering the nature of evidence adduced by the applicant and the infirmities in the case made out in the complaint, the view taken by the learned trial Judge that guilt of the 1st respondent is not established is certainly a possible view. Hence, no case is made out for grant of leave. Application is rejected. It is however clarified that the observations made in this order are for limited purpose of examining the prayer for grant of leave to prefer an appeal. None of the observations made herein shall be construed as any finding recorded on the liability of the 1st (5) respondent. (A.S.Oka,J)