* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 55 OF 2008 IN CRIMINAL REVISION APPLICATION NO. 802 OF 2003 (SESSIONS COURT BOMBAY) IN C.C.NO.13/S/2001 (10TH MM’S COURT, ANDHERI, BOMBAY) Shaikh Mohammed Iqbal ....Revisionist/Applicant/ Orig.Complainant Versus 1. State of Maharashtra ....Respondent no.1. 2. Mr.Girdharilal Seksaria ....Resp no.2/Orig.accd no.1 ====== Mr.A.K.Prajapati, adv.for applicant. Mr.M.K.Kocharekar, adv.for respondent no.2. Mr.S.R.Shinde, APP for State. CORAM: SMT.R.P.SONDURBALDOTA, J. DATED: 28TH JULY, 2009. P.C. :- 1. Heard counsels for both sides. 2. The above applicant filed a private complaint against repsondent no.2 (original accused no.1) one Girdharilal Sakseria and accused no.2 Mr.Pawan Kumar under Section 406, 409, 413, 420 * 2 * IPC. By the order dated 20th April, 2001 the learned Metropolitan Magistrate issued process against the accused persons. Thereafter, both filed an application for discharge contending that the dispute between the parties is purely a civil dispute and no criminal proceedings can lie. The application for discharge has been considered by the learned Metropolitan Magistrate and disposed off by the order dated 15th September, 2003 discharging only accused no.2 Mr.Pawan Kumar and proceeding against respondent no.2 Girdharilal Sakseria under Section 406, 409 IPC only. That order came to be challenged by respondent no.2 by filing Criminal Revision Application No. 802 of 2003 in the Court of Sessions which was dismissed by the order dated 15th February, 2006. Respondent no.2 challenged the order of dismissal by filing Criminal Application NO. 2872 of 2006 in this court. By the order dated 17th August, 2007 this court allowed the Criminal Application, set aside the order dated 15th February, 2006 and directed the Sessions Court to re- hear the Revision Application. Pursuant to the order, the Revision Application was reheard by the Sessions Court and by the order dated 24th October, 2007, the same was allowed. The applicant herein who is the original complaint being aggrieved by the said order has filed the present Criminal application. 3. On the basis of the facts of the case the process issued * 3 * under Section 409 IPC cannot be justified under any circumstances, because respondent no.2 is neither a public servant nor a banker nor a merchant nor a agent of the complainant. Therefore, the process issued under Section 409 IPC was completely incorrect. No fault can be found with this conclusion of the Sessions Court. This leaves for consideration of the court the allegations made by the applicant for proceedings against respondent no.2 for the offence punishable under Section 406 IPC. Admittedly there is no direct contract between the applicant and respondent no.2. Original accused no. 1 was producer of a film by name `Sikandar Sadak Ka’. He had entered into an agreement with respondent no.2 laboratory for preparing prints of the film for the purpose of distribution to the distributors. The applicant is one of the sub-distributors who has an agreement directly with M/s.S.P.S.Films, the principal distributor. He had at the instance of the producer supplied raw stock of film to respondent no.2 for printing of the film Sikandar Sadak Ka thereon. The learned counsel for the applicant does not dispute that respondent no.2 was liable to hand over the films to the producer only on the instructions of the distributor. He however, submits that acceptance of raw- stock by respondent no.2 should be taken as instructions by the producer and acceptance of the raw-stock as entrustment. Since * 4 * neither the raw-stock is returned to the applicant nor the print film made available to him, the offence punishable under Section 406 IPC becomes complete. 4. The learned Sessions Judge while allowing the Criminal Revision Application has considered the fact that there is no direct privity of contract between the applicant and respondent no.2 Besides, there are disputes between the producer and the principal distributor i.e. S.P.S.Films on account of royalty and the applicant claims through the principal distributor. It has also taken note of the fact that the applicant himself had requested respondent no.2 to obtain consent of the producer in handing over the prints of the film produced. The third aspect which has been taken into consideration by the learned Judge is that since the contract is between the applicant and the producer, once he is discharged, respondent no.2 cannot be held to be responsible because Section 34 IPC is not attracted. Thus, perusal of the impugned order shows that there is neither any illegality nor irregularity therein. The learned Judge has arrived at the correct and reasonable conclusion on the facts of the case. The order does not require any interference. Hence, the revision application is dismissed. [SMT.R.P.SONDURBALDOTA, J] * 5 *