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Judgments of Supreme Court of India and High Courts

Uttar Pradesh Co-Op. Federation … vs Ichibaan Automobiles Pvt. Ltd. … on 10 February, 2017

Dusane 1/4 appln5022.2004

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.5022 OF 2004

1 Uttar Pradesh Co-operative Federation Ltd.
Plot Nos. 4 to 9, Mafco Yard,
Vashi, Navi Mumbai.

2 Mr. D.K. Sharmaig
Age : 46 years,
Regional Manager, U.P.C.F. Ltd.
Plot Nos. 4 to 9, Mafco Yard,

Vashi, Navi Mumbai. …. Applicants

Vs.

1 Ichibaan Automobiles Pvt. Ltd.
Metro Estate, 178, C.S.T. Road,

Kalina, Santacruz (East),
Mumbai – 400 098

2 The State of Maharashtra …. Respondents

Mr. C.M. Kothari, Advocate for the Applicants.
None for Respondent no.1, despite service.
Ms. Pallavi Dabholkar, A.P.P. for the respondent- State.

Coram : Smt. R.P. SondurBaldota, J.

Date : 10th February, 2017

JUDGMENT :-

1 This application filed under Section 482 Code of
Criminal Procedure (“Cr.P.C.”) is for quashing of the order 19 th

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Dusane 2/4 appln5022.2004

April, 2004 passed by the trial Court issuing process against the
applicants in CC No.799/2003 under Section 406 read with
Section 34 Indian Penal Code.

2 Applicant no.1 is Uttar Pradesh Co-operative
Federation Limited having it’s Head Office at Lucknow and

Branch Office at Mumbai.

ig Applicant no.2 is the Regional
Manager of applicant no.1. The applicants carry on business
interalia of Cold Storage and Warehousing. Respondent no.1,

the original complainant is a private limited company.

3 Applicant no.1 has it’s Warehouse at Plots No.4 to 9,

Mafco Yard, Vashi, Navi Mumbai. It had invited tenders from

intending licensees through a newspaper advertisement
published on 24th October, 2002 for the purpose of using it’s
RCC Warehouse and open space, admeasuring 16,500 sq. feet

on leave and license basis. Respondent no.1, by it’s letter dtd.
10th January, 2003 gave it’s offer and also remitted a sum of
Rs.1,56,885/- to applicant no.1 towards Earnest Money Deposit,

which was equivalent to one month’s license fees. The said
deposit was towards execution of Leave and License agreement
on acceptance of the offer of respondent no.1. It was agreed
between the parties that if respondent no.1 failed to execute the
Leave and License agreement, the deposit would be forfeited.
Applicant no.1, on receiving the offer dtd. 10 th January, 2003,
informed respondent no.1 that the terms and conditions of the

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Dusane 3/4 appln5022.2004

agreement were already given to it and called upon respondent
no.1 to execute the Leave and License agreement. Respondent
no.1 however, for some reason or the other delayed execution of

the agreement. Later it by it’s letter dtd. 29 th March, 2003, it
stated that it was withdrawing it’s offer and demanded refund of
the amount of Earnest Money Deposit. This led to a dispute

between the parties on conclusion of the contract between the

parties for Warehousing and forfeiture of the Earnest Money
Deposit by applicant no.1. When applicant no.1 informed

respondent no.1 that the Earnest Money Deposit is forfeited,
respondent no.1 on 24th November, 2003 filed a private
complaint in the Court of Judicial Magistrate First Class, Vashi

alleging offence punishable under Section 406 read with Section

34 Indian Penal Code and the trial court issued process upon
the complaint and called upon the applicants to remain present
before it on 27th December, 2004.

4 Mr. Kothari, the learned advocate for the applicants
submits that bare reading of the complaint sufficient to know

that, it does not make out any offence against the applicants.
Since the transaction between the parties was purely a civil
transaction, even if it is to be said that there is genuine dispute
between the parties as regards forfeiture of the Earnest Money
Deposit, respondent no.1 could not have given it colour of
criminal offence of misappropriation of money, so as to
prosecute the applicants for the offence punishable under

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Dusane 4/4 appln5022.2004

Section 406 Indian Penal Code for breach of trust.

5 A copy of the complaint is annexed at Exhibit “A” to

the application. It’s perusal supports the argument of Mr.
Kothari. The complaint merely narrates the events of
advertisement, discussions about the Earnest Money Deposit

amount, terms and conditions of the Warehousing agreement

and the bald allegation that there were pressure tactics adopted
by the applicants. According to the complaint, forfeiture of the

Earnest Money Deposit amounts to misappropriation because
there is no clause therefor in the draft agreement supplied by
the applicants. The complaint as filed by respondent no.1

misses out one of the important ingredients of the offence of

criminal breach of trust, which is of dishonest intention. A
dispute between parties as regards an agreement relating to
forfeiture of Earnest Money Deposit and forfeiture of the

deposit by the applicants can under no circumstances be said to
be dishonest misappropriation of the amount of deposit by the
applicants towards their own use. The impugned order

therefore cannot be sustained. The application is allowed in
terms of prayer clause (c ).

(Smt. R.P. SondurBaldota, J.)

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