- (1.) THE petitioner seeking quashing of the First Information Report relating to tiljala Police Station Case No. 238/07 dated August 3, 2007 under Sections 406/430 of the Indian Penal Code corresponding to BGR Case No. 2820 of 2007, now pending before the Learned Additional Chief Judicial Magistrate, Alipore, south 24-Parganas, moved the instant criminal revision, invoking the inherent jurisdiction of this Hon'ble Court.
(2.) THE case of the complainant as it appears from the face of the allegations contained in the impugned First Information Report are as follows :- 'the complainant who is an Electrical Engineer was approached by the accused persons and was proposed by him to start a business by forming a private Limited Company where the ratio of investment would be 47. 5% each by the complainant and the accused Salim Makkar and balance 5% by Mrs. Makkar. The accused allured the complainant by a wrongful representation that he would bring huge quantity of export order from the overseas countries. Believing such representation the accused agreed to such proposal and a Private limited Company under the name and style of Presto Animation Studio Pvt. Ltd. having its registered office at B/29/h/6, Canal South Road, Kolkata 700 105 was incorporated. By a mutual arrangement the accused person was in-charge of sale, purchase and accounts in a fiduciary capacity whereas the complainant being a technical person was in-charge of manufacturing process. The company owned and possessed several sophisticated machinery and other accessories worth of Rs. 20 lakhs. The accused inspite of repeated demand of the complainant refused to furnish the accounts of the business on one pretext or other. During the month of November, 2006 due to some personal reason the petitioner was out of Kolkata and when the accused was in-charge of entire business and the books of account, cash, bank and cheque books were in his custody in a fiduciary capacity. The complainant after returned to Kolkata has found the accused has removed all valuable properties of the company viz. (i) 12 computer workstations. (ii) Speakers, (iii) Sony FXI Camera. (iv) 2 Tiipods. (v)Sony Handycam. (vi) Pioneer DVD Player. (vii) Cash Book. (viii) Cheque Book. (ix)Accounts Book. (x) Sony T. V. (xi) Pass Book. (xii) Air Conditioner. (xiii) Chairs. (xiv) Tables. (xv) and many other valuable articles. '
(3.) THE quashing of the impugned FIR has been prayed for on the following grounds; (a) The basic ingredients of the alleged offence are lacking in the allegations made in the FIR. (b) An offence of criminal breach of trust punishable under section 406 of the Indian Penal Code cannot be committed in respect of a property belonging to a company, but is an offence committed by a person in respect of a property which has been specially entrusted to such person under a special contract and when he holds the property in fiduciary capacity under special contract, if he misappropriates the same. (c) Although it has been alleged that the petitioner has removed all the articles but there is no allegation that one of such article has been misappropriated. (d) It has never been alleged that dominion over property was a result of special entrustment. (e) No offence punishable under Section 430 of the Indian Penal code has been made out. (f) The FIR has been lodged by the defacto-complainant to save himself and alleged articles in question have long been removed by the defactocomplainant himself. ;