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TMI Blog1983 (6) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... mplainant company. A civil suit by the complainant against the petitioner for a claim of Rs. 5,00,000 as damages is pending in the Original Side of the High Court at Calcutta. The petitioner has also made a claim of nearly ten lakhs of rupees against the company in the said suit. On the application of the complainant company in the said suit, Mr. Justice Dipak Kumar Sen passed an order directing the complainant company not to disturb the petitioner's possession in the premises mentioned therein and also restrained the petitioner from taking any further steps in Suit No. O. S. 180 of 1981 and I.A. No. 1050 of 1981 filed before the Court of Munsif at Cochin. Against the above background, the complainant company filed a petition of complaint against the petitioner in the Court of the Chief Metropolitan Magistrate, Calcutta, under section 406, IPC, and section 630(1)( b ) of the Companies Act, 1956, on May 12, 1981. The principal allegation of the complainant company was that the petitioner was allowed by the company to reside in the disputed premises, namely, 1/81, Church Road, Cochin, fitted with furniture and fixtures, initially in his capacity as managing director and subsequently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd dues, if any, would be settled and asked the petitioner's advocate to vacate the said premises. The petitioner made a claim for Rs. 5,00,000 for his remuneration. In 1981, the petitioner submitted a notice under section 434 of the Companies Act upon the company demanding legal dues stating that in default of payment, application for winding up would be filed. On January 16, 1981, the company filed a suit being Suit No. 51 of 1981 in the Original Side of the High Court at Calcutta claiming damages and in that suit the company obtained an order of injunction to the effect earlier mentioned. On March 31, 1981, the petitioner filed a suit, namely, O.S. No. 180 of 1981, before the learned Munsif at Cochin for continuous possession of the disputed premises and obtained an order of ad interim injunction. On April 6, 1981, the company admitted the petitioner's claim for roughly Rs. 9,50,000 in Suit No. 51 of 1981. Mr. Dhar took considerable pains to establish that the petitioner has a higher money claim against the complainant company and that claim is admitted. He wants arguing that suppressing all those things the complainant company filed a petition of complaint and obtained an ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r knowingly applies it to purposes other than those expressed or directed in the articles and authorised by the Act, he shall, on complaint of the company or any creditor thereof, be punishable with fine which may extend to Rs. 1,000. Sub-section (2) is also important, in so far as it provides that the court trying the offence may 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 may extend to two years. The term "officer" used in the above section has been defined in section 2(30) of the Act to include any director, managing agent, secretaries, treasurers, manager or secretary or any person in accordance with whose direction or instruction the board of directors or any one or more of the directors is or are accustomed to act. In para. 4 of the petition of complaint, it is stated that under agreement dated April 1, 1976, the accused was appointed managing director of the company for a period of three years from February 6, 1976, to February 5, 1979, and, according to the terms of appointment as an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 3, 1981, the accused admitted that his vacating the premises would arise only on March 31, 1981. In his letter dated January 14, 1981, addressed to the company, the accused is alleged to have admitted that when the time came to vacate the house, the same would be vacated and all the company's articles lying there would be handed over to the representative of the company. Reference to such correspondence and admissions have been made in paras. 11, 12, 13 and 14 of the petition. In para. 21 of the petition of complaint, it has been categorically stated that the head office or registered office of the company is situate at Nilhat House, No. 11, R. N. Mukherjee Road, Calcutta. The accused was appointed at Calcutta. His remuneration was paid at Calcutta and with respect to matters, the accused was accountable to the company at its Calcutta office. Being satisfied prima facie as to commission of the offence as alleged, the learned Magistrate took cognizance of the offence by an order referring in detail to the complainant's case. Mr. Dhar contends that the learned Magistrate was wrong and there was absolutely no reason to hold that a prima facie case transpired from the petition of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f trial and the court trying the case is not influenced by any observation made herein. Mr. Dhar contends that that the principal intention of the complainant, company is to evict the accused from the premises in question and to get back possession of the same. He contends that to for estate that the accused obtained an order from the Court of Munsif at Cochin. He contends that the present petition of complaint is in a way mala fide and illegal. This argument has very little to commend itself for acceptance. The occasion for demanding possession of the property under section 630(2) may not arise if the accused, in the event of his conviction under section 630(1)( b ), gives up possession of the premises. It is worthy of note that the penalty to be imposed under section 630(1)( b ) is a fine of Rs. 1,000. Under section 468 of the Cr. PC, the period of limitation for an offence with such penalty is only six months. There was, therefore, great urgency in filing the petition of complaint on May 11, 1981, when according to the petition of complaint, the offence was committed on April 1, 1981. From the mere filing of the complaint against the background of civil suits, mala fide co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing to the contrary in the Companies Act, the place of enquiry for the offence under the Companies Act is to be determined with reference to section 4 of the Cr. PC. The Companies Act does not expressly or impliedly confer jurisdiction on criminal courts in respect of acts punishable under that Act. So using section 4 of the Cr. PC, as key, the learned Magistrate was perfectly justified in resorting to the provisions of section 181 of the Code. Ordinarily, under section 177 of the Cr. PC, an offence is to be tried by the court within whose local jurisdiction the offence was committed "Ordinarily" in section 177 means except as otherwise provided in the Code. From section 177 an inference is permissible that an offence shall not invariably without exception be tried by the court within whose jurisdiction the offence was committed. Such an interpretation of section 177 was made in the case of Purushottamdas Dalmia v. State of West Bengal, AIR 1961 SC 1589 at p. 1593. An offence under section 630(1)( b ) of the Companies Act has obvious similarities with an offence of criminal misappropriation or of criminal breach of trust defined in the IPC. Now, section 181(4) of the Cr. PC, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he could perhaps send the key of the property to the head office. The question of inconvenience and costs to be incurred by the accused in defending the proceeding at Calcutta while he is residing at Cochin does not appear to be insurmountable. The provisions of section 205, Cr. PC, are well known and from the order of the learned Magistrate dated July 17, 1981, it appears that accused has already filed such a petition and order is awaited thereon. Giving careful and anxious consideration to the arguments advanced on behalf of the petitioner accused, I do not find any reason to quash the proceedings or to find fault with the learned Magistrate for the order he has passed. The learned Magistrate appears to have passed a detailed order taking into consideration the long petition of complaint and the initial deposition of the complainant's witness in support thereof. There are sufficient and cogent reasons for the learned Magistrate to take cognizance of the offence and to issue process. The petition will, therefore, fail. But it is made clear that the contentions raised by the accused petitioner touch the case both in the matter of territorial jurisdiction of the court and in the m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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