- 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.339 OF 1999. WRIT PETITION NO.339 OF 1999. WRIT PETITION NO.339 OF 1999. Shri Soab Ahamed Imtiaz Hussen Shaikh. ..Petitioner. versus The State of Maharashtra & Anr. ..Respondents. .... Mr.M.C.Moholkar, Advocate for Petitioner. Mr.D.B.Patil, Advocate for Respondent No.2. Mr.J.P.Yagnik, APP for Respondent No.1. .... CORAL CORAL CORAL : A.S. OKLA, J. : A.S. OKLA, J. : A.S. OKLA, J. DATE DATE DATE : 9TH JULY,2008. : 9TH JULY,2008. : 9TH JULY,2008. ORAL JUDGMENT : 1. The submissions of the learned counsel appearing for the parties were heard on 7th July 2008 and today, the petition is kept for dictation of the judgment. 2. By this writ petition under Article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code"), the challenge is to the order dated 10th July 1997 passed by the learned Judicial Magistrate (First Class), Murbad by which process was issued on a private complaint filed by - 2 - the second respondent. 3. This Court in the case of V.K.Jain & Ors. v/s Pratap V. Padode, [2005(3) Mh.L.J. 778], held that for challenging an order issuing process on a private complaint, a remedy of filing a revision application under section 397 is open and in a case where such a remedy is not exhausted, normally this Court will not entertain a petition invoking section 482 of the said Code and Article 227 of the Constitution of India. However, in this petition filed in the year 2000, notice was issued on 16th September 2000 and thereafter, rule was issued on 24th January 2001. Considering these peculiar facts, now at this stage it will be unjust to both the parties if the petitioner is relegated to the remedy of a revision application. In any case, availability of such a remedy does not affect the jurisdiction of this Court under section 482 of the said Code. Therefore, I have heard the learned counsel appearing for the parties on merits. 4. The second respondent filed a private complaint making an allegation of commission of an offence punishable under section 406 of the Indian - 3 - Penal Code against the petitioner. The case of the second respondent is that he is a partner of M/s. Mars Gas Service, a partnership firm. The business of the second respondent was of distribution of gas by taking gas from the producers. According to the second respondent, he was using his own cylinders for distributing the gas. According to his case, the gas taken from the producer was filled in the cylinders and as per the requirement of the customers, gas cylinders used to be supplied to the customers. According to the second respondent, normal practice was that the customers were required to take delivery of gas cylinders from the place of the second respondent at Murbad and the customers used to return the empty cylinders to the second respondent at Murbad. 5. According to the second respondent, the petitioner was in the business of selling gas. According to the second respondent, the petitioner contacted him in June 1994 for supply of gas. At that time, the second respondent informed the petitioner that the second respondent was in a position to supply oxygen, D.A. and argon gas. According to the second respondent, he informed the - 4 - petitioner that he should bring the cylinders twice a month to the second respondent for filling the gas. The second respondent used to collect a sum of Rs.500/- per cylinder of oxygen and D.A. cylinders and a sum of Rs.2,000/- per cylinder of argon. According to the case of the second respondent, on 7th June 1994, the petitioner met the second respondent for placing orders for 30 oxygen cylinders, 10 D.A. cylinders and 5 argon cylinders. It is the case of the second respondent that at that time, the terms and conditions agreed between the parties were reduced in writing and the same were signed by the petitioner and the second respondent. It is the case of the second respondent that though the sum of Rs.30,000/- was payable by the petitioner by way of deposit for the cylinders, on the request made by the petitioner, he accepted a sum of Rs.25,000/- instead of Rs.30,000/-. The second respondent stated in the complaint that delivery of 45 cylinders was made to the petitioner and the payment of price of the gas was made by the petitioner. 6. It is the case of the second respondent that the petitioner was under an obligation to return the - 5 - cylinders on or before the agreed date i.e. 17th June 1994. However, the petitioner did not return the cylinders. 7. Therefore, the second respondent contacted the petitioner and stated that the petitioner should return the 45 cylinders and collect the deposit amount of Rs.25,000/-. It is alleged that the petitioner informed the second respondent that the second respondent should first pay the deposit amount and thereafter, the cylinders would be returned. It is alleged that the second respondent could not use his own cylinders as the cylinders were not returned by the petitioner. It is alleged that initially there were talks of settlement. However, the petitioner failed and neglected to comply with the assurance given to return the cylinders. These are the allegations made in the complaint. On the said complaint, process was issued by the learned Magistrate under section 406 of the Indian Penal Code. 8. The learned counsel appearing for the petitioner has invited my attention to various averments made by the complainant. The submission is - 6 - that even going by the allegations made in the complaint, at highest, it was a case of breach of contract. He pointed out that a suit for recovery of Rs.2,92,000/- has been filed by the second respondent against the petitioner. He submitted that the none of the ingredients of section 406 of the Indian Penal Code were made out. It is submitted that on plain reading of the complaint, no case was made out for issuing process. The learned counsel for the second respondent invited my attention to the assertions made in the complaint and other documents on record. He submitted that on plain reading of the complaint, offence under section 406 of the Penal Code is made out. He invited my attention to writing dated 7th June 1994. 9. I have carefully considered the submissions. Reliance is placed by the second respondent on the writing dated 7th June 1994 allegedly issued by the second respondent to the petitioner. The contents of the said writing read thus :- . "M/s. Bombay Gas Service Near Vitram Glass L.B.S. Marg, Vikhroli, - 7 - Bombay-83. Ph. 5792305-5786500 Res. 5617961. . Terms and conditions and rate of filling of gases. 1. Oxygen 13/00 2. Oxygen Party 12.50 (12.50) 3. D.A. 115/ Q 4. Argon 1100/- cylinder. Turnover : Oxygen - 3 turnover per month D.A. 1.5 turnover per month Argon 2 turnover per month. Otherwise Rent will be charged as per market rate. Payment against delivery. Deposit : Oxygen D/A Rs.500/- cylinder Accepted for Argon Bombay Gas Rs.2000/-." . The said letter itself notes that the deposit at the rate of Rs.2,000/- per argon cylinder was payable and deposit at the rate of Rs.500/- per oxygen and D.A. cylinder was payable. It must be - 8 - noted here that admittedly security deposit of Rs.25,000/- has been taken by the second respondent for the cylinders. The very object of taking security deposit was obviously that in case a cylinder is lost or damaged or is not returned, the cost of the cylinder can be adjusted against the deposit. It will be necessary to refer to section 406 of the Penal Code. Section 406 provides for a punishment for committing a breach of trust. In so far the breach of trust is concerned, section 405 is relevant. . "405. "405. "405. Criminal Breach of trust.- Criminal Breach of trust.- Criminal Breach of trust.- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust". 10. The first ingredient of section 405 is of - 9 - dishonestly mis-appropriating or converting property for his own use or dishonestly using or disposing of such property. In the present case, the material averments regarding dishonest misappropriation or dishonest use of cylinders are lacking in the complaint. In any case, admittedly the second respondent had taken security deposit for each gas cylinder. Thus, on the face of it, the order issuing process shows non application of mind. Even taking the averments made in the complaint as true, none of the ingredients of the section are attracted. Therefore, process could not have been issued for offence punishable under section 406 of the Indian Penal Code. Hence, the petition must succeed and I pass the following order :- . Rule is made absolute in terms of prayer clause (b). . Certified copy be expedited. [ A.S.OKA, J.] A.S.OKA, J.] A.S.OKA, J.]