Smt. Roshan Dalvi, J.

1. The first 2 Petitions/Applications are for quashing of the Criminal Complaint No.SCC No.1881 of 2004 filed in the Court of learned Judicial Magistrate, First Class at Shivajinagar, Pune. The 3rd Petition is for quashing the order of issuance of process in R.C.C./S.C.C. No.476 of 2004 in the Court of the learned Magistrate, First Class at Nashik.

2. The Petitioners/Applicants are Officers of M.S.E.B who are the accused in the aforesaid complaints.

3. There were various contracts entered into between the M.S.E.B and the Complainant's Company Datar Switchgear Ltd. There were several tenders to be invited from time to time under those contracts. In March, 2001 a sum of Rs.5,00,000/came to be deposited by Datar Switchgear Ltd., with M.S.E.B as security deposit in lieu of the bank guarantee that was required to be given for the tenders which were to be filed for the contract between the parties. Certain disputes arose by and between the parties. Due to certain alleged malpractices on the part of the M.S.E.B the contracts came to be terminated. Upon the termination of the contracts the Complainants desired to be refunded the security deposit which was kept with M.S.E.B.

4. It is their contention that the security deposit, as the term suggests, was the deposit to secure the performance of the contracts which were given to the Datar Switchgear Ltd., under certain tenders. After the contracts are terminated and no other contracts are to be entered into, the security deposited, by its very essence, becomes refundable and must be refunded. 5. The Complainants by their letter dated 16th September, 2003 informed the M.S.E.B that they have no desire to participate in further tenders to be floated by M.S.E.B and called upon the Petitioners to refund Rs.5,00,000/kept as security deposit with M.S.E.B. The Petitioners on behalf of the M.S.E.B replied to the said letter vide their letter dated 6th March, 2004 claiming adjustment of the said amount towards other dues allegedly payable by Datar Switchgear Ltd., to the M.S.E.B.

6. It can be seen primafacie that adjustment towards any other liability, is not entitled to be claimed. The Complainants have therefore, alleged wrongful misappropriation of the said funds by the Petitioners/Applicants. They alleged a wrongful loss to have been caused to them and wrongful gain to have been caused to the M.S.E.B by virtue of the adjustment and the refusal to refund the security deposit.

7. Consequently the complainants through their letter dated 22nd March, 2004 alleged that the action of the Petitioners/Applicants has resulted in depriving the Complainants of their rightful dues. They, therefore, alleged criminal breach of trust by the Petitioners/Applicants acting as public servants being the Officers of M.S.E.B.

8. In the said letter the Complainants have shown the collective role of all the accused.

9. The defence of the Petitioners/Applicants to the aforesaid charge is that of valid appropriation/adjustment of the amount paid by the Complainants under their contractual liability.

10. A reading of the complaint primafacie shows a cognizable case. The defence of the Applicants would be required to be seen on merits at the time of trial. We may mention that the Petitioners would be able to show lack of mens rea only by repayment along with full interest and costs. It may also be mentioned that the factum of nonpayment of the said amount is an admitted fact and would not be required to be proved. Whether or not it amounts to be a breach of trust in the aforesaid complaint is alone to be adjudicated.

11. It was contended on behalf of the Petitioners/Applicants that this amount has been considered and could be considered in the civil remedies which have been already enforced by the Complainants in certain Arbitration Proceedings. In the case of Indian Oil Corporation Vs. NEPC India Ltd. A.I.R . 2006 S.C.2780, it has been held by the Apex Court that the availability of civil rem