( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 1133 OF 2009 Shri Vitthal Dagadu Mahajan .. Applicant Versus Shri Namdeo Pandurang Koli and Anr. .. Respondents Shri R.S. Shinde h/f. Shri Ajay G. Talhar, Advocate for the petitioner. CORAM : P.R. BORKAR,J. DATED : 25.02.2010 P.C. :- 1. Heard Shri R.S. Shinde h/f. Shri Ajay G. Talhar, Advocate for the petitioner. This is a writ petition in which the order passed by the Sessions Judge, Jalgaon, in Criminal Revision Application No. 200 of 2009 decided on 29th September, 2009 is challenged, thereby the Sessions Judge quashed and set aside the issuance of process against respondent No.1. 2. Brief facts giving rise to this petition are as under :- ( 2 ) . Present petitioner filed R.C.C. No. 244 of 2009 in the Court of Chief Judicial Magistrate, Jalgaon, alleging that the original accused No.1/Purnwad Nagari Sahakari Pat Sanstha Maryadit, Jalgaon, is co-operative society. Accused No. 2/Satyashil Akole was the Chairman. Accused Nos. 4 to 14 were the Directors. It is case of the present petitioner that he along with his wife had deposited in all amount of Rs. 19,76,114/- from time to time in fixed deposit. After period of deposit was over, for one and half years the petitioner several times visited accused No.1/society, but the deposits were not repaid. Even renewal of the deposit receipts was not allowed. So, the petitioner had met accused No.2/Satyashil, but he said that the petitioner might do whatever he wants. In the circumstances, it is said that offence of criminal breach of trust under section 409 read with section 34 of the I.P.C. is committed by the accused. After recording verification, the Chief Judicial Magistrate, Jalgaon, issued process against all 14 accused persons. As against said order of issuance of process, only accused Namdeo Pandurang Koli, who is present respondent No.1 filed Revision No. 200 of 2009 in the Sessions Court, Jalgaon. ( 3 ) 3. In para 6 and 7 of the judgment, the learned Sessions Judge observed as follows :- “6. The first point, which requires determination, is, whether the amounts kept with the Bank as and by way of fixed deposit by a customer, can be construed as entrustment within the meaning of Sec. 405 of the Indian Penal Code. In my opinion, the answer has to be in the negative. The person who deposits money in the Bank has a contractual relationship with the bank. The depositor becomes the Creditor and the Bank becomes the Debtor. The monies are deposited with the full knowledge of the business of the Bank, knowing well that the monies would be used and utilized by the Bank in connection with their business, which is basically advancing loans to the customers. In fact, it is for this reason, viz. that the money of the customer is being used by the bank, that the Bank pays interest to him. Therefore, the suggestion that such amounts deposited with the bank against the fixed deposit receipts amount to entrustment is, prima facie, not acceptable. 7. Further, Sec.405 of the I.P.C., which defines criminal breach of trust expressly provides that the misappropriation, or conversion, of the property as contemplated therein, must be dishonest. A perusal of the complaint shows that there is no such averment.” 4. Merely because the bank has not refunded the amounts of deposits or the bank official refused to renew deposit receipts would not amount to criminal breach of ( 4 ) trust. It will have to be proved that there was criminal breach of trust in respect of the amount deposited by the petitioner in his account. The offence of criminal breach of trust is defined under section 405 of the I.P.C. If we consider said definition, it cannot be said that there are necessary averments in the complaint to show that offence punishable under section 409 read with section 34 of the I.P.C. is made out. In the circumstances, this is not case to interfere with the order of the Sessions Court in this petition. In the result, the petition is dismissed in limine. [P.R. BORKAR,J.] snk/2010/FEB10/crwp1133.09