1 A IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.67 OF 1994 K.Premsingh Verma } Residing at B-43, Jeet Nagar, }.. Appellant Versova Road, } (Original BOMBAY – 400 061. } Complainant) Versus 1) Pradeep Haldankar } 75/B, Shindewadi No.2, }.. Respondent Dr.Ambedkar Road, } (Orig.Accused No.2) Bombay – 400 014. } } 2) Mohan Jain } Jain Granth Ratnakar Hira Baug, } ..Respondent C.P.Tank, } (Orig.Accused No.3) Bombay – 400 004. } } 3) The State of Maharashtra } Respondents. Mr.K.P.Varma- party in person- absent. Mrs.Rucheeta R.Dhuru h/f. Mr.Shirish Gupte for Respondent No.1. Mr.A.L.Patki for Respondent No.2. Mr.A.S.Shitole, A.P.P. for the State. CORAM : A.R.JOSHI, J. DATED : JULY 3rd , 2009. 2 ORAL JUDGMENT :- It is an appeal preferred by original complainant against the Judgment and order of acquittal dated 3rd August, 1992 passed by Metropolitan Magistrate 22nd Court, Andheri, Mumbai. By the said impugned Judgment and order both the Respondents original accused Nos.2 and 3 were acquitted of the offence punishable under section 408 read with section 34 of Indian Penal Code. 2. In the present appeal processes were issued against the original complainant appellant on many occasions, however, he did not remain present. He in person appeared in the present matter and as such at the time of hearing of the final arguments there is no scope for this Court to hear the arguments of complainant. However, it is decided to proceed further with the present matter after hearing the learned Advocate for Respondent Nos. 1 and 2 i.e. original accused Nos.2 and 3 and learned A.P.P. for the State Respondent No.3. 3. Prior to appreciating the rival submissions as above, certain factual position and facts of evidence laid before the trial Magistrate on behalf of the complainant can be narrated in order to have proper prospective of the case and more so in order to determine whether there is anything to interfere with the impugned Judgment and order of acquittal. For all the relevant acts complainant K.Premsingh Verma was engaged in the Hindi film production and he was proprietor of his film 3 production business and was producer of one Hindi film entitling “Last Tiger”. Apparently, said film was not released and remained to the production stage itself. One Shantilal Shah, original accused No.1 was the production manager for the said film. Accused No.2 Pradeep Haldankar was assistant director and accused No.3 Mohan Jain was assistant cameraman. All the three accused were employed by the complainant under separate agreements for doing respective jobs for the shooting and other incidental work for his said above mentioned film. 4. Without going in to much details, suffice to say, for the said purpose of shooting of said film complainant had purchased about 25 rolls of photo films and out of which 10 rolls were entrusted to accused No.1 Shantilal Shah. According to the instructions of the complainant, shooting of the film was initially at Madumalai, State Tamilnadu from 30th May, 1982 till 2nd June, 1982 and prior to that the staff including all the three accused persons went to Madumalai. Some part of the shooting was completed till 2nd June, 1982 and that time 19 rolls were entrusted with the accused No.1 Shantilal Shah. At this juncture, it must be mentioned that said Shantilal Shah died during the pendencey of the trial Court case and as such when the impugned Judgment and order was passed there were only two accused i.e. present Respondent Nos.1 and 2 who were original accused Nos.2 and 3. 5. It is also the case of the complainant and transpired from his substantive evidence that he asked accused Nos.2 and 3 to come down to Ooti on 3rd June, 1982 to continue further shooting of some part of 4 the film. However, they did not report to the place at Ooti and left Madumalai. On their failure to attend Ooti, it was decided by the complainant to conclude the remaining part of the shooting with the help of one Vinayk P.W.No.3 and who was another assistant cameraman. According to complainant P.W. No.3 Vinayak told him that out of 19 rolls handed over to accused No.1, six rolls remained unused and they were handed over to accused Nos.2 and 3 by accused No.1. Apart from this, it is also the case of the complainant that from accused No.1 he came to know that two unused rolls were taken by one Mr.Oza, a friend of the complainant and who is P. W. No.2. Moreover, he also knew from accused No.1 that six rolls were taken by accused No.2. On knowing this complainant tried to contact accused No.2 and sent a registered letter at the address of accused No.2, but, it was returned with remark refused. At this juncture, it must be mentioned that such returned letter was brought before the trial Court and was filed when it was in a sealed condition, however, when it was shown to the complainant, during the trial, it was found that the envelope which was earlier in sealed condition when deposited, was found open and not containing any documents much less any letter as alleged by the complainant. On this aspect, complainant from his own possession produced copy of the said letter and which was taken on record by the Trial Court. This circumstance, was corroborated on behalf of the accused during the trial with the defence that there was no such letter addressed to accused No. 2 and it was a concocted case of the complainant. 6. In short it is the case spelt out by the complainant by his 5 evidence and also of by the evidence of P.W. Nos.2 and 3 that he had entrusted 19 film rolls to accused No.1 and out of them six roll were taken by accused Nos.2 and 3 and were misappropriated. 7. At this juncture, it must be mentioned that there was an order passed by the Trial Court on 27th September, 1988 discharging all the three accused when facing the trial and it was done after recording of the examination in chief of the prosecution witnesses. Said order on discharge was challenged before the Sessions Court and said order was upheld. Against the order of Sessions Court Criminal Writ Petition under provisions of section 482 of Criminal Procedure Code was filed before this Court and it was allowed remanding the matter to the Trial Court for Trial according to law and recording of the evidence and disposal of the case. Ultimately, the trial was held and which ended in acquittal on 3rd August, 1992 and it is the order which is challenged in the present appeal by the complainant. 8. It appears that during the trial three prosecution witnesses were examined. P.W.No.1 is the complainant himself, P.W.No.2 is friend one Shri Oza and P.W.No.3 assistant cameraman Vinayak. After going through the substantive evidence of said witnesses, it was ascertained by the trial Magistrate that there was no proof as to the entrustment to film rolls which remained unused and which were misappropriated by the accused persons. At this juncture it must be mentioned that the trial was conducted as against original accused Nos. 2 and 3 as accused No.1 already died. According to the case of the complainant 19 rolls were 6 entrusted to accused No.1 and allegedly out of them two rolls were given to one Shri Ooza P.W.No.2 and according to the evidence of Shri Oza six rolls were given by him to the complainant. It appears that according to the case of the complainant he know from P.W.No.3 Vinayak as to giving of six unused film rolls by accused No.1 to accused Nos.2 and 3. However, definitely, it was the hear say evidence of P.W.No.2 and 3 and said fact has been dealt by the trial Magistrate in its proper prospective. Moreover, it is a case in which there was no acceptable evidence as to present Respondent Nos. 1 and 2 having the custody of any unused photofilm and misappropriating it to their own benefit and thus attracting the provisions of section 408 of Indian Penal Code. On this aspect, it must be borne in mind that in order to attract the provisions of section 408 of Indian Penal Code there should have been an entrustment of the property and that there has been a criminal breach of trust in respect of such property and in order to attract ingredients of criminal breach of trust, there should be dishonest, misappropriation or the dishonest loss or disposal of the property in violation of the directions under which such property was entrusted. On the facts of the present case at hand, it must be said that there was a failure on the part of the complainant to prove existence of such ingradients and that the trial Magistrate had rightly appreciated the evidence and came to the conclusion of acquittal of the accused persons. In that event, in the opinion of this Court, there is nothing to interfere with the impugned Judgment and order of acquittal and hence, present criminal appeal must fail and same is accordingly disposed of with following order : 7 :: O R D E R :: Present criminal appeal No.67 of 1994 stands dismissed. (A.R. JOSHI, J.)