Mukul Gopal Mukherjee, J. - (1.) The complainant petitioner impugned in revision an order, dated 6 January, 1986, passed by Sri K.C. Chatterjee, Judicial Magistrate, 5th Court, Alipore, in Case No. C 194 of 1985 discharging the opposite party under section 245(2), Cr. P.C., wherein the latter was arraigned on a charge under section 630 of the Companies Act and section 406 of the Indian Penal Code.
(2.) On 29 April, 1983, an agreement was entered into by ABC Products Ltd. and the opposite party by which the latter was appointed as the President of the company for 5 years with effect from 1 June, 1983. On 30 December, 1983, at the annual general meeting of the company, ABC Products Ltd., the opposite party was proposed to be made the managing director of the company subject to the approval of the Company Law Board. At the time when the opposite party joined ABC Products Ltd. one of the terms of the agreement was that he would be provided with rent-free unfurnished accommodation. There is a sister company of ABC Products Ltd. running under the name and style of ABC Consultants (P) Ltd. The said sister concern had a tenancy of a flat, being flat No. 59B of the Tivoli Court at 1 /A, Ballygunge Circular Road, and by virtue of an agreement with the said sister concern, the premises was obtained by ABC Products Ltd. of which the present petitioner is commercial manager, to allot the said flat to the opposite party for his residence, where the latter started residing. Subsequently, when the opposite party was appointed as managing director of the petitioner's company, he ceased to be the President of ABC Products Ltd. A draft agreement was made between the company and the opposite party as per requirement of the Companies Act, 1956, and, as such, the earlier agreement appointing him as the President ceased to have any force at all. The said draft agreement appointing the opposite party as the managing director under the law required approval of the Ministry of Law, Justice and Company Affairs, Government of India, and the company accordingly applied to the Government of India, Ministry of Law, Justice and Company Affairs, in Form No. 25A for approval of the opposite party as managing director on a remuneration of Rs. 5,000 per month for five years with other perquisites mentioned in the said draft agreement. The company received however a letter dated 21st January, 1985, of approval from the Central Government intimating the company that the opposite party would continue as managing director only for 11 months instead of 5 years from the date of his appointment at a remuneration of Rs. 4,050 as per the order of the Central Government. The said period of 11 months already expired on 30 September, 1984, and, as such, the petitioner company informed the opposite party by a letter dated 5.2.85 about the alterations made in granting the said approval by the Central Government enclosing therewith a true copy of the said letter of approval and further apprised the opposite party, that his tenure of appointment as the managing director having expired, he ceased any longer to be the managing director with effect from 1.10.1984 and he was requested to hand over vacant possession of the said flat at Tivoli Court. Further, by another letter dated 11.3.85 he was requested to effect refund of Rs. 38,845.13p. received by way of remuneration and perquisites in excess during his tenure of office as under section 309(5) if any director draws or receives, by way of remuneration, any such sums in excess of the limit prescribed by section 309 or without the prior sanction of the Central Government, where it is required, he was bound to refund such sums to the company and until such sum was refunded he is to hold it in trust for the company and the company had no right also to waive the recovery of the said sum refundable unless permitted by the Central Government. Under section 630 of the Companies Act, if any officer or employee of a company wrongfully obtains possession of any property of a company or having any such property in his possession, wrongfully withholds it or knowingly applies it to purposes other than those expressed or directed in the articles and authorised by the Act, on the complaint of the company or any creditor or contributory thereof, he was liable to punishment with fine which might amount to Rs. 1,000. The court trying the offence might also order such officer or employee to deliver up or refund within a time to be fixed by the court, any such property wrongfully obtained or wrongfully withheld or knowingly misapplied or in default, to suffer imprisonment for a term which might extend to two years. It is the case of the complainant that prior to the occupation of the said flat in question by the opposite party,the said flat was occupied by the Chairman of the said ABC Consultants (P) Ltd. and under the dominion of the said company, the following items of fit- tings and fixtures were kept : (i) refrigerator ; (ii) one electric cooker ; (iii) two geysers, (iv) a pantry in the said flat, and the opposite party occupied the said flat as President of the company after his appointment as President and thereafter as managing director of the petitioner's company and he was allowed to continue to reside under the said draft agreement. The opposite party acquired dominion of the said goods as he occupied the said flat. The opposite party in violation of the agreement, which provided that as condition of employment, he would be provided with unfinished quarter and exploiting his position first as President of the company and then as managing director of the said company, purchased for the said flat at the cost of the company : (i) water heater ; (ii) dining shelves ; (iii) serving set of two pieces, parma pattern; (iv) three in one buffet dinner spoon ; (v) shelf cupboard with Sunmica finishing ; (vi) one dinner table ; and, (vii) gas cylinder cabinet with Sunmica ; (viii) gas cylinder cabinet with Sunmica finishing and ; (ix) other sundry articles, including electrical fittings and other fittings, and the company had to spend a large amount of money for furnish- ing the said flat with furniture and fittings mentioned above and the opposite party passed the vouchers either as President or Managing Director and the said vouchers were filed and exhibited at the time of evidence. It may be added that the said articles purchased by the company were kept by the opposite party under his care and donation. It was alleged by the petitioner that the opposite party was conscious of his performance, which was a total failure of the company under his management which sustained huge loss of about 40 lakhs as would be evident from the balance sheet and the opposite party in conspiracy with the landlord of the said flat and after the said flat was properly furnished with the money of the company, purchased the flat in his name at a price which was much below than that of the market value. The opposite party did not attend office from 1 October, 1984, and did not deliver possession of the said flat. Thus he had wrongfully withheld and converted to his own use and thereby used the said flat along with furniture and fittings in violation of law in the context of termination of his appointment as managing director under the orders of the Central Government. The opposite party despite repeated demands refused to refund the excess payment made to him by the company in respect of which his position was converted as (to) that of a trustee under the law and he dishonestly converted the same to his own use, contrary to the provisions of the Companies Act, violating the agreement and even flouting the direction of law prescribing the mode in which the said- trust was to be discharged, thereby violating the terms to (of) contract as well. The opposite party did not also return the goods as earlier mentioned and wrongfully withheld the same which were kept in the said flat, before his occupation, and also went on using and converted to his own use the other articles kept under his dominion during his tenure of service for which the company incurred expenses. The allegation was to the effect that he dishonestly misappropriated the same and committed criminal breach of trust in respect of the same and withheld them despite demands made by the company. He also refused to deliver up possession of the company's properties and wrong- fully refused to refund the moneys.
(3.) Pursuant to a petition of complaint filed by the petitioner before the learned Chief Judicial Magistrate, 24 Parganas, the latter took cognizance and thereafter transferred the case to the learned Judicial Magistrate; 5th Court, Alipore, who on examination of the witnesses was pleased to summon the opposite party under section 406 IPC and under section 630 of the Companies Act. Search warrant was issued on the prayer of the petitioner directing local police to prepare an inventory in respect of the furniture and fittings belonging to the company and kept by the company under the dominion of the opposite party, in respect of which offence of criminal breach of trust was committed and process under section 406 IPC was issued and the said articles after the inventory were kept in the custody of the opposite party. However, all the articles as mentioned in the list as earlier referred to which were attached to the petition of complaint, could not be found out. The opposite party after the inventory was made, filed a petition praying for an order for setting aside and/or terminating the proceeding and filed another petition under section 245(2), Cr. P.C., for discharge of the opposite party. The learned judicial Magistrate by his order dated 6 January, 1986, discharged the accused opposite party.;