Om Prakash Srivastava and Another vs Bhor Industries Ltd. and Another

T.K. Chandrashekhara Das, J.—This is an application filed u/s 482 of Cr.P.C. arises out of the complaint filed by Respondent No. 1 against the petitioners in the Court of Metropolitan Magistrate, 5th Court at Dadar bearing Case No. 23/P of 1990 alleging that the petitioners have committed offence punishable u/s 120(B) read with Sections 406 and 411 of I.P.C. The complaint was taken on file by the learned Magistrate and directed an enquiry u/s 156(3) of Cr.P.C. The Police has submitted a report that no offence has been committed in the State of Maharashtra. After that Magistrate took cognizance of the complaint made by the first respondent and this is sought to be quashed in this application.

I heard learned counsel for the petitioners Mr. V.C. Gupte and Mrs. Kejriwal, A.P.P. for Respondent No. 2 State of Maharashtra. None appeared for Respondent No. 1.

The learned counsel for the petitioner Mr. Gupte has taken me to the averments made in the complaint. It is to be noted that petitioner No. 1 is the Regional Manager of Respondent No. 1 and Petitioner No. 2 is the dealer of Bhor Industries with whom the petitioner No. 1 allegedly conspired. The allegations in the complaint goes to show that the petitioner No. 1 was the Regional Manager of Respondent No. 1 working in Calcutta who was supervising the selling of the goods manufactured by Respondent No. 1. In para 5 of the complaint, it is averred:

However, since September, 1986 the Company started depot operations at various places all over the country including Calcutta. Materials of various items were stocked by the Company at these depots and supplies were being made to dealers ex-shelf. The dealer would raise an indent with the Regional Manager and also receive an order of confirmation from him. When delivery was taken by the dealer from the depot, the Regional Manager was bound to issue separate invoices to the dealer immediately in respect of each delivery challan. The Regional Manager was required to account for the goods and receipts of monies to the Company at its Head Office at 392 Veer Savarkar Marg, Bombay 400025. The Regional Manager was required to send to Bombay monthly statements of stock and daily statement of receipts to Head Office at Bombay. The dealer was given a maximum credit of 30 days only and if payment was delayed beyond 45 days, the Regional Manager is required to instruct the Head Office in Bombay and stop all further supplies of goods to that dealer.

From the above averments, it has been clearly spelt out the duties and responsibilities of the 1st petitioner to supervise the sales as a Regional Manager. It is clear from the above averments that the goods are never entrusted to the 1st petitioner. The 1st petitioner''s duty is only to raise invoices when the dealer raises indent. Delivery of goods has to be independently taken by the dealer from the depot on the invoice raised by the Regional Manager against the delivery Challan and he has also to account for the goods and receipts of the monies to the Company at the Head Office. No entrustment of goods, relating to which the offences are alleged to have been committed, has been alleged. Assuming that there was entrustment, that entrustment is at Calcutta and the offence alleged to have been committed by the petitioners is in Calcutta. No offence either in whole or part has been committed in Bombay. As rightly observed by the police in their report, offence could not be said to have been committed in the State of Maharashtra. The learned counsel for the petitioners Mr. Gupte drew my attention to the Sub-section 4 of Section 181 which deals with the place of trial. Sub-section 4 of Section 181 reads as follows:

Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of offence was received or retained, or was required to be returned or accounted for, by the accused person. This sub-section deals with the misappropriation or criminal breach of trust with regard to the property which is subject-matter of the offence. As averred in the complaint, as noted above, the alleged offence is entirely taken place only in Calcutta. No part of the offence is taken place in Maharashtra. Therefore, the contention of the counsel for the petitioners '' can be held to be sustainable and the issuance of process against the petitioners has to be quashed.

The learned A.P.P. for State Mrs. Usha Kejriwal took me to the various averments made in the complaint to show that the triable offence under Sections 120(B), 407 and 411 of I.P.C. has been disclosed. She submits that there was nothing wrong in issuing summons against the accused. The only point urged by the counsel for the petitioners is that even if it is assumed that offence is committed, any Courts of the State of Maharashtra has no jurisdiction in view of the transactions narrated in the complaint. Therefore, contention of the learned A.P.P. cannot be accepted. In this context it is necessary to refer to the decision of this Court relied upon by the learned counsel for the petitioners in Smt. S. Sukmini Achi and Ors. v. Bankimchandra K. Lodaya and Anr. 1979 Bom. C.R. 581, The Division Bench of this Court held thus:

Now accountability for the unpaid price of the goods retained is one thing and accountability about the property in respect of which the offence Is alleged to have been committed is another thing. Accountability for the price of the goods alleged to have misappropriated or converted is not the ingredient of the offence u/s 407 of the Indian Penal Code. The words "required to be accounted for by the accused person" in Sub-section (4) of Section 181 of the Code could have reference only to the accountability contemplated by any section of the Indian Penal Code or any other section of which any infraction is alleged and not any other accountability such as the accountability of the price of any such goods which is not ingredient of the offence. Looked at from this point of view, accountability, as a result of the civil liability, for the unpaid price of the goods retained, can have no relevance whatsoever for attracting the provisions of Section 181(4) of the Code. Looked at from this point of view, there is no averment in the complaint to invoke the jurisdiction of any Magistrate in Bombay. The complaint is liable to be quashed on this ground itself.

In view of the above decision, this application has to be allowed.

In the result, writ petition is allowed.

Rule is made absolute in terms of Prayer Clause (a). No orders as to costs.

Prayer Clause (a):

That this Hon''ble Court may be pleased to call for the record and proceedings in the aforesaid case bearing No. 23/P of 1990 on the file of the learned Addl. Metropolitan Magistrate, 5th Court at Dadar, Bombay and after examining the same, be pleased to quash and set aside the same.