( 1 ) THIS application is filed by the accused of Criminal Case no. 237 of 1996 of the Court of J. M. F. C. , Pardi, Dist. Bulsar. The complaint is filed by respondent No. 2 alleging that the petitioner is guilty of criminal breach of trust with regard to consignment of garbage bags.

( 2 ) IT seems that the petitioner and the respondent No. 2 had entered into a commercial transaction and as per the orders placed by the petitioner, respondent no. 2 was to manufacture garbage bags of plastic which were to be exported to dubai. Accordingly, bags were kept ready of the weight of about 12,500 kgs. valuing rs. 4,68,405/- by respondent No. 2. It was to be inspected and certified and after it being so done, against a cheque payable on the 7th day, the quantity was to be delivered for being despatched to Dubai. However, alleging that signature of two persons is required on a cheque, and though the articles were ready for despatch, cheque was not given and relying on the promise said to have been given by the petitioner on her behalf by her agent, the customs authorities were called. The said quantity of bags was stuffed in a container for being shifted from Bombay to Dubai. In fact, the despatch was made from Bombay and it finally landed up at Sharjah and yet, respondent No. 2 has not received the payment. Saying that this amounts to breach of trust, as defined under S. 405, punishable under S. 406 Indian penal Code, complaint came to be filed. The petitioner came before the Court saying that it is a purely commercial transaction and if at all there be any dispute, it would give rise to a civil dispute and respondent No. 2 has abused the process of Court by giving it a colour and shape of a criminal offence and has obtained unsupportable orders and therefore, it be quashed.

( 3 ) RULE came to be issued on the very first day on 7-2-1997 and further proceedings as prayed for were stayed. In response to the service of Rule, an elaborate reply came to be filed by respondent No. 2. Strictly speaking, when one goes through the reply, it is quite clear that no offence under S. 406 is made out. The stuffing in the container is done at the factory of respondent No. 2 and after having been cleared by the customs authorities and loaded in the container, Bill of Lading was obtained by respondent No. 2. The Bill of Lading never left the hands of respondent no. 2 and finally, when the container landed up at Sharjah, according to the Rules of that Country, the goods had to be cleared, otherwise, they would have been confiscated. Therefore, respondent No. 2 arranged with his clearing agent to clear the goods unloaded and stored in a warehouse at Sharjah. This is to be found in para 4 at page 58.

( 4 ) IN the course of the argument, learned Advocate Mr. Malkan appearing for respondent No. 2 was specifically asked about the manner in which the goods were handled right from the time that they were loaded upto the point of time where they came to be stored in the warehouses at Sharjah. One of the partners of the firm, i. e. , brother of respondent No. 2 was present and after obtaining instructions from him, Mr. Malkan made a statement, which was recorded yesterday in his presence and it is kept on record. Taking the said statement, para 4 and the accompanying documents together, it is quite clear that the goods have never left the domain of the original complainant, respondent No. 2.

( 5 ) FOR making an offence under S. 406, one has to turn to S. 405 and there it could be found that unless the entrustment is made or shown to have been established prima facie of dominion over the property having been made over to the accused, there is no question of it amounting to a breach of trust, much less, therefore, there could be any possibility of dishonest misappropriation or conversion and therefore, there is no question of there being any offence under S. 406 I. P. C. The Bill of Lading, Proforma Invoice and other related documents produced along