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TMI Blog1985 (7) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... g career but his service under the company came finally to an end on August 15, 1982. It was alleged that prior to that date, as an officer of the company, he was given possession of a furnished fiat in premises No. 27, Ballygunj Park, Calcutta, of which he was obliged to deliver up possession to the company on termination of his employment. It was alleged that having wrongfully retained possession of the flat after ceasing to be an officer of the company, Mr. Jha, the accused, committed an offence under Sections 630 of the Companies Act and having dishonestly and wilfully retained articles of furniture with which his flat was furnished, he committed further an offence under Sections 406, IPC. After cognizance was taken, the case was transferred to the court of Mr. P.K. Deb, Judicial Magistrate, Alipore. After examining the witness before charge by an order dated February 1, 1985, the learned Magistrate felt satisfied that there were materials for a charge under Sections 403, IPC, and he framed a charge accordingly. He, however, concluded that the case of complainant in so far as it came under the provisions of Section 630 of the Companies Act, the cognizance of the offence was bar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but relying on the decision of this court in the case of T. S. Satyanath v. /. Thomas [1983] 87 CWN 850 : [1985] 57 Comp Cas 654, he held that cognizance of the said offence was barred by limitation because of the express provisions of Sections 468, Cr. P.C. Mr. Ghosh submits that the finding of the learned Magistrate on the point of limitation is erroneous and misconceived. He does not appear to have considered the provisions of Sections 468, Cr. P.C. as amended in 1978. Mr. Ghosh contends that in the present case, the complaint mentioned an offence under Sections 406, IPC, attracting higher punishment than the offence under Sections 630 of the Companies Act. Mr. Ghosh reads out the interesting judgment of the Bombay High Court earlier referred to in support of his contention. He relies on a further decision of the Bombay High Court in the case of Govind T. Jagtiani v. Sr. Administrative Officer, Indian Oil Corporation [1984] 56 Comp Cas 329 ( and contends that the Bombay High Court has taken the view consistently that an officer or employee of a company whose service has been terminated or has come to an end may be prosecuted under Clause (b) of Sections 630 of the Companies Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the section. We have also to bear in mind the words of Clause (b) of Subsection (1) also, which read as follows: 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 this Act. The articles and authorised by this Act are most likely to be known only by the employees of the company. So we feel tempted to confine the application of this Clause to existing officers and employees of the company. Sub-section (2) of Sections 630 indicates that if an offence under the section is established, the court is to 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. We lay emphasis on the use of the expression such officer and employee in Sub-section (2). We mean to say that the order of delivering up or refund can be passed only on an officer or employee of the company. That is possible when the accused in the case is an officer or employee of the compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny article of furniture, movable or immovable, was entrusted to the care and custody of the accused. Taking a liberal view of the complaint, we examined the evidence adduced but found nothing therein to indicate that anything was entrusted to the accused. We have read the deposition of P.W. 1, P.W. 2, P.W. 3 and P.W. 4 examined by the learned Magistrate. The witnesses do not say that the accused was entrusted with any articles of furniture or with any other movable, or even with the flat itself. The sum and substance of the deposition is that as a condition of service, the accused was given possession of a fiat furnished with articles and the implication is that with the termination of his employment, he was to deliver .up vacant possession of the flat together with the fixtures and furniture with which the flat was furnished. If the accused has not delivered up possession of the flat with fixtures and furniture to the company on the termination of his employment, he has only committed a breach of contract. The company is well entitled to file a suit in a civil court for appropriate reliefs. Proceedings in a criminal court cannot be resorted to o reach that end. It is to be noted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section. The learned Magistrate meant to say that even if the accused possessed fixtures and furniture given to him for his enjoyment in the fiat for a temporary period subsequent to the termination of his employment under the company, such use and enjoyment by the accused amounted to misappropriation. We regret we cannot share this view. The illustration under Explanation 1 to Sections 403 indicates beyond doubt that Explanation I applies only to money in cash or valuable securities and not to ordinary articles of fixtures or furniture. We, are, therefore, of the view that on a close scrutiny of the evidence adduced, we should arrive at the conclusion that there were no materials for framing a charge under Sections 403 even against the accused. The learned Magistrate, in our view should have discharged the accused. In the result, after hearing the learned advocates and taking the view as indicated above, we conclude that Revision Case No. 222 of 1985 which is being treated as a contested application is liable to be dismissed on contest and is, as a matter of fact, so dismissed. With regard to the other revision application, namely, Criminal Revision No. 448 of 1985, we are sat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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