1 Cri-A-2208-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPLICATION NO. 2208 OF 2010 Gammon India Limited ... ) Through its Senior General Manager, ) Mr. P.K. Bandi ) having its office at Gammon House, ) Veer Savarkar Road, Mumbai 400 025. ).. Applicant V/s. 1) Chanda Construction Company ) A sole proprietary concern of ) Mr. Abdullah Khan ) having its office at Flat No.511 ) Building No.89 New Mhada Colony, ) Mankhurd, Mumbai 400 443. ) 2) The State of Maharashtra ) Through Govt. Pleader. ).. Respondents Mr. Subodh Desai, i/b. Subodh S.Kurdukar, Advocate, for the applicant. Mr.Abhijeet Rane, Advocate for the respondent No.1. Ms. U.V.Kejriwal, APP, for the respondent No.2 State. CORAM: J.H.BHATIA,J. DATE : 24th March, 2011. JUDGMENT : 1. Rule. Rule made returnable forthwith. Heard. 2 Cri-A-2208-10.sxw 2. Respondent No.1 is the complainant. He had entered into a contract with the present applicant for carrying out certain work and for that purpose, he had placed certain machinery and material on the site of the work. For certain reasons, the contract was cancelled. The complainant also made some claim for damages and that matter is referred to the arbitrator. The complainant also filed the complaint alleging that the applicant was not allowing him to take away the material. The trial Court issued the process against the applicant under Section 341 of IPC. By this application, the applicant seeks to quash that order. 3. Section 341 of IPC provides for punishment for wrongful restraint. "Wrongful restraint" is defined in Section 339 thus :- "339. Wrongful restraint - Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person. Exception - The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section." In view of the language of Section 339, it has to be established that the accused had voluntarily obstructed the complainant from proceeding in a particular direction in which the complainant has right to proceed. There is 3 Cri-A-2208-10.sxw no allegation that the complainant was obstructed from proceeding in any direction to which he is entitled. The complaint is that his material is lying on the site of the work and he was not being allowed to take away that material after the contract was cancelled. The applicant has pointed out that he had filed his affidavit in reply dated 23.6.2008 to the Notice of Motion before the City Civil Court wherein he had categorically stated that the respondent No.1/complainant was at liberty to take away the material lying on the work site. From this, it appears that the complainant was never prevented from taking his material from the site of the work. Even if for the sake of argument, it is presumed that he was not allowed to take away the material, that does not amount to an offence of wrongful restraint as defined in Section 339 of IPC. Therefore, process under Section 341 could not have been issued. 4. For the aforesaid reasons, the application is allowed and the impugned order of issue of process is hereby quashed. However, the complainant shall not be prevented from taking away his material from the site. Rule made absolute accordingly. (J.H.BHATIA,J.)