Manas Kumar Ghosh vs State of West Bengal

Debi Prasad Sengupta, J.—This revisional application is with a prayer for appropriate direction u/s 630(2) of the Companies Act directing the learned Magistrate to take appropriate steps to secure possession of the flat in question owned by the company and make it over to the Petitioner.

The present Petitioner is an officer of the Shipping Corporation of India Ltd., a Government of India undertaking and a company within the meaning of Companies Act, 1956. The opposite party No. 1 who was appointed as Assistant Manager of the said company was provided with a flat owned by the said company on November 30, 1992. The opposite party No. 1 retired from service of the company and as per terms of service he was under obligation to immediately vacate the said flat and surrender the possession of the same in favour of the company but the opposite party No. 1 without vacating the quarter, continued to remain in possession of the said flat. Accordingly the present Petitioner being an Authorised Officer of the said Company filed a petition of complaint u/s 630 of the Companies Act in the court of learned Chief Judicial Magistrate, Alipore.

Mr. Dutta the learned Advocate appearing for the Petitioner submits that the proceeding in the court below is practically without any progress and the same is being dragged mainly at the instance of the accused opposite party. The Petitioner preferred a revisional application before this Court and this Court disposed of the said revisional application is 1996 with a direction upon the learned Magistrate to dispose of the case preferably within a period of four months from the date of communication of the order. Mr. Dutta submits that inspite of such direction the trial could not be completed within the said period. On February 19, 1997 the accused opposite party moved a petition before the Learned Magistrate praying for dropping of the said proceeding on the ground of pendency of Civil Suit. But the learned Magistrate rejected such petition filed by the opposite party. Against such order of rejection the accused opposite party preferred a revisional application before the learned Sessions Judge. The learned Sessions Judge in the court below after hearing the parties partly allowed the revisional application of the accused opposite party by an order dated August 8, 1992 and ordered that after the completion of the examination of prosecution witnesses the criminal proceeding would remain stayed till the disposal of T.S. No. 88/95. Against such order of the learned Sessions Judge the present Petitioner moved a revisional application before this Court being C.R.R. No. 2903/97. this Court by an order dated June 18,'' 1999 allowed the revisional application, set aside the impugned order of the learned Additional Sessions Judge and directed the learned Court below to proceed with the trial and to conclude the same in accordance with law preferably within a period of four months from the date of communication of the order. Mr. Dutta submits that the aforesaid order passed by this Court on June 18, 1999, was duly communicated to the learned Magistrate, but inspite of such direction there is absolutely no progress in the trial. Referring to the order sheet of the learned Magistrate Mr. Dutta submits that save and except issuing warrant of arrest against the accused opposite party and adjourning the matter for execution report of such warrant of arrest, the learned Magistrate could not proceed any further in the matter. In such circumstances Mr. Dutta prays that an appropriate direction may be given by this Court directing the learned Magistrate to take appropriate steps to secure possession of the flat in question and to make it over to the Petitioner.

Mr. Dutta the learned Advocate of the Petitioner relies on a judgment of this Court in Metal Box India v. State of West Bengal 1997 (11) C.H.N. 423 . From a reading of the said judgment it appears that it was held by the learned Single Judge of this Court that when the continuous right to retrieve the property is quite explicit, it . is in consonance with the view of the Apex Court in the judgment of State of A.P. Vs. S. Vishwanatha Raju and Others, , to pass an order u/s 630(2) of the Companies Act to direct an employee or past employee to vacate flat or restore the company''s property to the company even before the Magistrate trying the case u/s 630(1) of the Companies Act formally disposes of the criminal case against the employee or past employee.

I have carefully gone through the judgment referred to above and it appears that in delivering the said judgment the learned Single Judge of this Court relied upon the judgment of the Hon''ble Apex Court in the case of Baldevkrishna Sahi v. Shipping Corporation of India Ltd. (Supra ).

I have heard the learned Advocate appearing for the Petitioner I have also perused the connected papers which are annexed to this revisional application. In my considered view for an appropriate direction u/s 630(2) of the Companies Act the Petitioner has to approach the learned Magistrate first. Without approaching the learned Magistrate the Petitioner cannot straight may come up before this Court for such relief u/s 630(2) of the Companies Act. The provision of Section 630(2) of the Companies Act runs as follows:

Section 630 �.

(2) 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 6btained or wrongfully withheld or knowingly misapplied, or in default, to suffer imprisonment for a term which may extend to 2 years.

The aforesaid provisions of Section 630(2) of the Act provides that the court trying the offence shall have the jurisdiction to pass an order under the said section. In the present application it appears that the Petitioner has not approached the learned Magistrate by filing any application u/s 630(2) of the Companies Act.

In the case referred to above it appears that an application u/s 630(2) of the Companies Act was filed before the learned Magistrate with a prayer for handing over for vacant possession of the flat to the company but the same was rejected by the Learned Magistrate and against such order of rejection the Petitioner come up before this Court. In my considered view the Petitioner should approach the learned Magistrate by filing an application u/s 630(2) of the Companies Act for such relief. If such prayer is refused then only the Petitioner may come up before this Court in revision.

Accordingly I dispose of the present revisional application by giving liberty to the Petitioner to file an appropriate application before the learned Magistrate praying for relief u/s 630(2) of the Companies Act. I further direct that if such application is filed before the Learned Magistrate, the Learned Magistrate shall dispose of the same with utmost expedition preferably within a period of four weeks from the date of communication of this order. The present application is accordingly disposed of.