Calcutta High Court (Appellete Side)
Arup Mukhopadhyay & Ors vs State Of West Bengal & Anr on 20 May, 2011
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Mr. Justice Syamal Kanti Chakrabarti
C. R. R. 1425 of 2007
with
C. R. A. N. 1399 of 2009
Arup Mukhopadhyay & Ors.
Vs
State of West Bengal & Anr.
AND
C. R. R. 3487 of 2007
with
C. R. A. N. 2381 of 2010
Mukesh Gautama & Ors.
Vs
State of West Bengal & Anr.
For the Petitioner : Mr. Joymalya Bagchi,
Mr. Amarta Ghosh,
Ms. Rituparna De (in CRR 1425 of 2007),
Ms. Arpita Basu (in CRR 1425 of 2007).
For the State : Mr. Swapan Kumar Mallik
(in CRR 1425 of 2007).
For the Opposite : Mr. Sudhir Kumar Sadhukhan,
Party No. 2 Mr. Arindam Sadhukhan
(in CRR 3487 of 2007)
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Heard on : (in CRR 1425 of 2007) 22.07.2010,
27.07.2010, 10.08.2010, 08.09.2010,
15.09.2010, 20.12.2010 and 23.12.2010;
(in CRR 3487 of 2007) 22.07.2010,
27.07.2010, 10.08.2010, 08.09.2010,
15.09.2010 and 21.09.2010.
Judgement on : 20.05.2011.
Syamal Kanti Chakrabarti, J.:
Since both the cases arose out of same set of circumstances by the rival parties the revisional applications are taken up together for consideration and disposal for the sake of convenience.
2. In CRR 1425 of 2007 the petitioner has filed an application under Section 482 Cr.P.C. praying for quashing of proceedings in case no. C/1450/07 under Section 420/468/471/120B IPC pending before the Court of the learned Metropolitan Magistrate, 13th Court, Calcutta including order dated 05.02.2007 passed therein.
3. It is contended therein that the petitioner company Wilson Surveyors and Adjusters Private Limited carries on the job of the survey of the loss and damage of marine cargo and submits report to the insurance company for consideration and/or approval of the claim 3 under the relevant insurance policy. The company is an agent of Lloyds Insurance Company for India and Nepal. The petitioner no. 1 is the Manager, the petitioner no. 2 is the Managing Director, the petitioner no. 3 is the Deputy General Manager and the petitioner no. 4 is the Manager, Claims and Recovery of the petitioner company. The opposite party no. 2, Shankar Chandra Dasgupta was the erstwhile Director of the petitioner company. Due to dispute and differences the opposite party no. 2 was removed from the directorship of the company. Out of revenge he then instituted a criminal proceeding being no. C/1450/07 against the present petitioners on the allegation that in September, 2006 Messrs. Kundan Rice Mills Limited applied for survey of a consignment of 25 m.t. Canadian Whole Green Peas; the goods being transhipped by Lady Fatima in 10 containers arrived at Kolkata Port on September 14, 2006 and that Messrs. Zim Integrated Shipping Services (I) Private Limited acted as carrier of the said consignment. On 14th September, 2006 Central Food Laboratory duly received sample of the said green peas and the Director of the said laboratory by his report dated 19.09.2006 declared that the sample conforms to the standard laid down under item no. A18.06.14 of Appendix B of PFA Rules, 1955. In the report it was made clear that the condition of the 4 seals on the containers of the outer covering were intact. Then Messrs. Zim Integrated Shipping Services (I) Private Limited applied for inspection of the container which was allowed on 25.09.2006. In the inspection report made by Mr. S. Akhtar it was duly declared that external condition of the container was sound on all its sides. After such inspection the goods were discharged from Kolkata Port and shifted by vehicle no. WB-15-3945 while Messrs. Ravi Shipping Agency Private Limited acted as CF agent. The said goods were duly shifted to the godown of Kundan Rice Mills. On 28th September, 2006 in response to the application made by the said rice mill, the petitioner no. 1 being Manager of the company conducted survey at the consignors warehouse. As per report of the surveyor it was noted that the contents of the container no. FSCU 312679(5) emitted obnoxious and foul odour and on opening the top corner it was seen by the surveyor that the container roof had a hole of approximately 4 inches located on the roof top mid right 2nd panel/ 10th corrugation and 2nd and 3rd panel surface slightly bulged out. On visual inspection by the surveyor the top layer of green peas was found to have sprouted, partly shriveled, discoloured caked/ humpy. Cause of damage of green peas was attributed by the surveyor to ingress of seawater in the container through a 4" hole. Then the surveyor sent 5 three samples to the Industrial Testing and Analytical Laboratory, Kolkata. The test certificate of the laboratory was to the effect that the moister in the contents varied from 12.82% to 46.50% and the test for chloride and bromide gave a positive reaction indicating contact with salt/ seawater in transfer through the hole on the roof of the container. The surveyor expressed the opinion on the inspection report furnished by Dr. Amin, Controller Private Limited on or about 3rd October, 2006 that actual loss for the damage cargo amounted to USD 6555.58 which can be claimed against insured amount of USD 72690.31. But the said report was motivated and aimed at to claim the insured amount on behalf of the consignee at any cost by presenting false and fabricated documents. It is alleged that the petitioner no. 1 in collusion with the petitioner nos. 2, 3 and 4 manufactured forged documents being the survey with deliberate and fraudulent intention in order to deceive the insurance company and further committed forgery for that purpose as the petitioners prepared fake report by a non-existent company, namely, Dr. Amin Superintendents and Surveyors Private Limited and used the said forged document as genuine and thereby committed an offence punishable under Sections 420/468/471/120B of the Indian Penal Code. On receipt of such complaint the learned Chief Judicial 6 Magistrate, Calcutta took cognizance of the offence and transferred the case to the Court of the learned Metropolitan Magistrate, 13th Court, Calcutta. The learned transferee Court after examination by the opposite party no. 2 and his son issued process upon the petitioners by order dated 05.02.2007 which has now been assailed.
4. In CRR 3487 of 2007 an application under Section 482 Cr.P.C. has been filed by 1) Mukesh Goutama, Managing Director of M/s. Wilson Surveyors and Adjustors Private Limited, 2) Mr. C. Shreedharan and
3) Mrs. S. C. Selvarani praying for quashing the proceeding being case no. C/8336/07 under Section 406/120B of the Indian Penal Code, now pending before the Court of the learned Metropolitan Magistrate, 8th Court, Calcutta including order dated 22.05.2007 and 12.07.2007 respectively passed therein. It is contended that Messrs. Wilson Surveyors and Adjusters Private Limited is a private limited company which acts as surveyors and loss assessors on behalf of various insurance companies. Its primary job is to survey the loss and damage to marine cargo and to submit survey report to the respective insurance company for their consideration and approval. The petitioner no. 1 is the Managing Director of the petitioner company, petitioner nos. 2 and 3 are the shareholders of the 7 petitioner company and the OP no. 2, Shankar Chandra Dasgupta was the Director of the petitioner company. On account of the irregularities committed by him in submitting survey reports he was removed from his office. Being enraged, son of opposite party no. 2 entered into the chamber of one of the employees in the Kolkata office of the petitioner company and physically assaulted and snatched away valuables from the possession of the said employee. Therefore, the company was constrained to lodge a complaint under Section 156(3) Cr.P.C before the Court of the learned Chief Metropolitan Magistrate, Calcutta which was registered as case no. 129 of 2007 against OP no. 2 and his son.
5. Being enraged the opposite parties then hatched out a sinister plan and has registered a case being no. C/1450/07 under sections 420/468/471/120B of the Indian Penal Code which is now pending before the learned 13th Metropolitan Magistrate, Calcutta. On 15.05.2007 the opposite party no. 2 again filed a petition of complaint before the learned Chief Metropolitan Magistrate, Calcutta alleging, inter alia, that the petitioner company after removing him from the post of Director has not returned the individual surveyor license of the opposite party no. 2 and thereby exposed him to 8 hapless situation which forced the opposite party no. 1 to remain jobless and unemployed. It is alleged in the complaint that the petitioners have wrongfully retained the individual license of the opposite party no. 2 and misappropriated and converted the same to their own use and even after his removal his name appeared in the IRDA website as Director in the month of April, 2007 which indicates that the petitioners were using license of opposite party no. 2 in dealing with the same dishonestly and contrary to the terms and obligations. The said complaint was registered as case no. C/8336/07 which was subsequently transferred to the Court of the learned Metropolitan Magistrate, 8th Court, Calcutta.
6. It is submitted on behalf of the petitioners that as per their common practice the surveyor company which wants to obtain corporate survey license, has to submit the original individual survey license of its Directors to the Insurance Regulatory and Development Authority. The said practice will be evident from a letter dated 19th June, 2002 issued by the IRDA to the petitioner company, in which the said authority enclosed the survey license in favour of the petitioner company as well as asked for the original individual survey license of the petitioner no. 1 Mr. R. Vilvasigmani who were the erstwhile 9 Directors of the petitioner company. It is further claimed in their letter dated 19th February, 2003 that the petitioner company submitted the original survey license of the opposite party no. 2 to the IRDA and as such it is not in custody or in possession of the petitioner company. In their letter dated 20.03.2007 the petitioner company had already requested the IRDA to renew its license and to delete the name of the opposite party no. 2 as Director and to return the valid individual survey license to the opposite party no. 2 in order to enable him to continue with his profession in his individual capacity followed by further correspondences dated 26.04.2007 and 26.05.2007. Finally the corporate license of the petitioner company was received from the IRDA on 28.05.2007. The individual survey license of the opposite party no. 2 was also renewed by the IRDA on 09.05.2007 till 16.06.2009. But unfortunately on the basis of the statement of the opposite party no. 2 recorded by the learned Transferee Magistrate cognizance was taken on 22.05.2007 and summons were issued upon the petitioners asking them to appear before the said Court on 12.07.2007 which is now assailed on the ground that the initiation and continuation of such proceeding against the superior officer or Director of the petitioner company by a 10 erstwhile Director is the outcome of personal grudge and as such liable to be quashed.
7. C.R.R. No. 1425 of 2007: Learned lawyer for the petitioners has contended that as per paragraph 9 of the complaint alleged damage was caused on account of a hole of 3" x 4" through which seawater entered and damaged the pea the value of which will be 72690.31 USD as per report dated 26.09.2006. It is alleged that the accused signed the report dated 26.09.2006 to cheat the ensured amount on forged survey report. But it is not a forged document but a document containing incorrect information. In fact, no forgery in the true sense of a term has occurred. The client concerned was satisfied with such report and as such there was no case of cheating or forgery against the petitioners who have been falsely impleaded in the case. He has relied upon and referred to the principles laid down in 1990 Calcutta Criminal Law Report 1 and 2009(6) Supreme 470 [Md. Ibrahim & Ors. -Vs.- State of Bihar & Anr.] in support of his contention.
8. Learned lawyer for the de facto complainant on the other side has claimed that all the relevant documents are forged for the purpose of cheating and so the accused should face the trial. He has relied upon and referred to the case reported in AIR 2003 SC 541 in support of 11 his contention. Learned lawyer for the State on the contrary also has supported the de facto complainant and claimed that the questions raised herein are all pure questions of fact which can only be decided at the time of trial and as such the proceeding cannot be quashed at this stage.
9. From the rival contentions of the parties what has emerged out is that the FIR relates to the damage sustained by the insured on account of incorrect report prepared for the purpose of realising huge amount from the insurance company. The petitioners being Directors of the company have claimed that they are not at all involved in the same and the damage, if any, should be compensated by the company and not by the Directors. Merely because they are connected with the affairs of the company, they cannot be impleaded in this case on account of vicarious liability of the company. The de facto complainant has not implicated the company for any such damage and as such in absence of any statutory provision for impleading the Directors for payment of damages, the present petitioner cannot be impleaded under Section 420 IPC. In this connection he has relied upon and referred to the principles laid down in (2009)1 SCC 516 [R. Kalyani -Vs.- Janak C. Mehta & Ors.] 12 in support of his contention. In the said case the Hon'ble Apex Court held, inter alia, that a legal fiction must be confined to the object and purport for which it has been created. Vicarious liability can be fastened only by reason of a provision of a statute and not otherwise and for the said purpose a legal fiction can be created. In the given case respondent nos. 1, 2 and 3 sought to be proceeded against on the premise that there was vicarious liability for the affairs of the company. For that the company must be made an accused as legal fiction is raised against both the company as well as the present respondents for the acts of the company. It is further held therein that when the vicarious criminal liability is fastened on a person on the premise that he was in charge of the affairs of the company and responsible to it, all the ingredients laid down under the statute must be fulfilled. Since the company has not been impleaded in the case no such legal fiction can be contemplated and only the individual responsibility of the petitioners herein are to be looked into for the purpose of quashing the proceeding as claimed.
10. The de facto complainant in his deposition has claimed that he was Director of Wilson Surveyors and Adjusters Private Limited. His duty was to inspect the goods which comes from foreign countries and 13 thereafter to submit the report to the foreign insurance company. If any good is found to be damaged he sends report and on the basis of his report the claim is settled. In the instant case on 26.09.2006 Kundan Rice Mills informed the de facto complainant that 25 MT of pea was damaged and as a result they requested him to survey the goods imported from Canada. On 28.09.2006 he deputed Arup Lal Mukhopadhyay, the Manager of the company to survey the goods. After the survey he took three samples of the damaged goods and sent the same to the laboratory for analysis. Out of the three samples request was made in respect of one sample to be examined by salt- test and the other two to be examined by moister-contents test. According to their office procedure they gave one sample to the consignee, one sample was kept in their office and the other was sent to the laboratory for examination. Accused no. 1, Arup Lal Mukhopadhyay, Manager of the company, sent three samples to the laboratory on 30.10.2006 without obtaining any signature of the de facto complainant for sending the same to Canada. There are three signatories for sending the report of chemical examination. But none of the signatories have subscribed to the report. On 10.11.2006 Bombay office informed the accused no. 1 that there are some anomalies in the report. When the e-mail came to the hand of the de 14 facto complainant he asked the Bombay office to send the report to him and he would meet up the anomalies, if there be any. Bombay office did not send the report to him but the Manager, accused no. 1, collected the report and the same was sent to the Bombay office on 06.12.2006 without obtaining the signature of any of the three signatories. Thereafter, accused nos. 2 and 3 urged the de facto complainant to put the signature on the report along with signature of accused no. 1. But he did not put his signature on the same. On 15.01.2007 he was informed from Canada Insurance Company that the report was issued from the Bombay office with Bombay stamp signed by the accused nos. 2 and 3. Accused no. 4 has signed the report of Canada Insurance Company on 19.12.2006. Thus, all the four accused persons in collusion with each other committed the mischief and made an attempt to cheat the Canada Insurance Company with fake and fabricated documents. On the basis of the petition of complaint and initial deposition of the Director and other witnesses the learned Court below has taken cognizance of the offence. The learned lawyer for both the parties have referred to various decisions and raised certain questions of fact which cannot be decided by this revisional Court. It appears that rival contention of both the parties really relate to pure question of fact which cannot be 15 decided by revisional Court and the cases relied upon and referred to by the learned Lawyer for the petitioners are not applicable in this case. Therefore, I do not find any illegality and impropriety in the impugned order which should be interfered with. Accordingly it is held that the instant revisional application is devoid of any merit and the same is dismissed reserving rights and contention of the parties to raise the same before the learned Court below at the time of consideration of charge. Interim order, if any, stands vacated. The learned Court below is directed to proceed with the case as per law.
11. C. R. R. No. 3487 of 2007: In the instant case the complainant Shankar Chandra Dasgupta claims that he was Director of Messrs. Wilson Surveyors and Adjusters Private Limited and joined the service on 2nd May, 1990 as Branch Manager. He held valid survey licence issued by the Insurance Regulatory and Development Authority. In paragraph 3 of the petition of complaint it is further claimed that at the instance of accused no. 2 Mr. C. Sridhran and Mrs. S. C. Selvarani, it was agreed upon that a corporate licence in the name of Messrs. Wilson Surveyors and Adjusters Private Limited will be obtained in the name of accused nos. 1 Capt. Mukesh Goutama and Shri R. Vilvasigamani so that empanelment in local 16 insurance company could be made. It is further claimed that under the scheme of IRDA the beneficial interest in the ownership of individual survey licence remains with the concerned Director and the company holds the survey licence of concerned Director in trust of such Director. When the service of the Director is terminated his individual survey licence is returned and corporate survey license is amended. In his case unfortunately after termination of his service his survey licence was sent to IRDA for renewal of the same as well as for necessary correction in the corporate licence intentionally so that the de facto complainant remains without any job for a long time and thus by retention of his individual license the Directors of the company got benefit at the cost of the loss sustained by the removed Director. In paragraph 8 of the complaint it has been specifically mentioned that the survey licence of the company amended on 26.03.2003 incorporating the complainant's name as Director was valid up to 16.06.2007 and the new survey licence of the complainant was operative up to 16.06.2007. It is stated in the FIR that on 17th February, 2007 accused no. 1 informed the complainant that he was removed from the company as per resolution passed under Section 284 of the Companies Act at an Extraordinary General Meeting of the company held on 16th February, 2007 by accused nos. 2 and 3. 17
Unfortunately, thereafter the individual licence of the complainant was not returned to him rather they used the corporate licence in his name even in the month of April, 2007 which was displayed in the IRDA website. Therefore, they are liable under Section 406/120B of the Indian Penal Code.
12. It is claimed by the complainant that his survey licence is his individual property which cannot be retained unlawfully by other Directors of the company for their lawful gain for running with the help of his licence and at the loss of the complainant who remained unemployed for more than four months. On the basis of such complaint and his examination on S.A. the learned Metropolitan Magistrate, 8th Court, Calcutta took cognizance of the offence under Section 406/120B IPC and issued summons to the accused persons which is now assailed.
13. It is contended by the learned lawyer for the petitioners that in this case also the alleged offence, if any, has been committed by the company represented by the Directors and other office bearers and not the petitioners in their individual capacity. No complaint has been made against the company. The individual licence was sent in course of official business for benefit of the complainant without any 18 criminal intent of wrongful gain by the company. So the case is not sustainable in law and the same is liable to be quashed to prevent abuse of the process of law.
14. OP no. 2, complainant, has opposed the move and contended quite consistent with his affidavit-in-opposition filed that the petitioners have willfully and deliberately intended to amend their corporate licence by dishonest misappropriation of the fruits of the individual licence of the OP no. 2 even after his termination of service. The original individual licence of OP no. 2 is his 'property' in the hand of the petitioners who has cheated him. The learned lawyer for the OP no. 2 has referred to a case reported in AIR 1955 Bombay 82 (Durgadas Tulsiram Sood -Vs.- State). It is held therein (paragraph
16) that if the word 'property' is construed to mean that which acquires actual value only after it goes into the hand of a person who cheats, even then there is no doubt that the provisions of Section 420 IPC must apply to such case.
15. In the above context the allegations need now be examined. The offence of criminal breach of trust has been defined in Section 405 of the Indian Penal Code which runs as follows:
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"Section 405. Criminal breach of trust. - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust"."
From such definition it will appear that in order to constitute an offence of 406 IPC there must be
a) An entrustment with property or dominion over property;
b) Dishonest misappropriation or conversion of the same to one's own use of that property;
c) Dishonest use or disposal of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged;
d) Violation of any legal contract, expressed or implied which is made touching the discharge of such trust and lastly
e) Wilfully suffers any other person so to do.
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16. One test of such fulfilment of the essential ingredient has been dealt with by the Hon'ble Apex Court in the case of Jaswantrai Manilal Akhaney -Vs.- State of Bombay, reported in AIR 1956 SC 575. It is observed therein that in a case of criminal breach of trust it must be proved that the beneficial interest in the property in respect of which the offence is alleged to have been committed was vested with some person other than the accused and that the accused held that property on behalf of that person. A relationship is created between the transferor and the transferee, whereunder the transferor remains the owner of the property and the transferee has legal custody of the property for the benefit of the transferor himself or transferee has only the custody of the property for the benefit of the transferor himself. In the FIR it is alleged that for the purpose of securing his job the defacto complainant handed over his survey licence in terms of an agreement with accused no. 2, Mr. C. Sridhrar and Mrs. S. C. Selvarani for the purpose of obtaining a corporate licence in the name of Messrs. Wilson Surveyors and Adjusters Private Limited. Admittedly under the scheme of IRDA the beneficial interest in the ownership of individual survey licence remains with the concerned Director and the company holds the survey licence of concerned Director in trust of such Director. Obviously, the holder of individual 21 licence delivers his licence to the employer for securing his job. So in such a case company holds the same in trust for the benefit of the licence holder and not for its own benefit. The condition of service provides that such licence is to be deposited with the company who will hold it through its Directors so long as the employee will remain in service.
17. Learned lawyer for the opposite party/complainant has submitted that though the corporate licence was valid up to 16th June, 2007 the same was sent for renewal after termination of the service of the complainant on 17th February, 2007. This retention of the licence is not a negligent conduct because in the relevant IRDA website the survey licence was shown to have been used by the company in the name of the defacto complainant. This prima facie proves that they had dishonest intention to use the individual survey licence or property of OP no. 2 for the purpose of continuation of the corporate licence in the name of dismissed Director for about four months.
18. It appears from relevant order-sheet dated 12.05.2007 that the learned Transferee Court examined the complainant and after perusal of materials on record and having been satisfied issued process against the accused persons under Section 406/120B IPC. 22 Learned lawyer for the petitioners herein has contended that the said order reflects non-application of judicial mind before issuing process because from the four corners of the FIR neither any criminal conspiracy as defined in Section 120A IPC nor any criminal breach of trust as defined in Section 405 IPC appears to have been made out against the present petitioners being Directors of the company. The despatch of the corporate licence for annual renewal is a course of official business without any malice or illmotive. By retaining such licence for about four months the Directors of the company have not derived any personal benefit which is the acid test of criminal breach of trust viz-a-viz conspiracy in furtherance of the commission of such offence. The real beneficiary, if any, shall be the company in whose name the corporate licence was displayed in the website but without impleading the company, the Directors have been impleaded in this case which is prima facie an abuse of the process of law. Learned lawyer for the petitioner has drawn my attention to the case of R. Kalyani -Vs.- Janak C. Mehta & Ors., reported in 2009(1) SCC 516. In that case the question of culpability with regard to sending of a document to the National Stock Exchange without there being any thing further to show that the respondent 2 had any knowledge of the fact that the same was a forged and fabricated document cannot 23 constitute an offence. I fully subscribe to the view and hold that the ratio of the above case is applicable in the facts and circumstances of the present case.
19. Learned lawyer for the petitioner has also referred to the case of Punjab National Bank and Ors. -Vs.- Samudra Prasad Sinha, reported in 1993 SCC (Cri) 149. In that case it is held by the Hon'ble Apex Court that any action in terms of any contract expressed or implied is not covered under Sections 405/409 IPC. In the present case the despatch of the individual licence of the defacto complainant for renewal of the corporate licence of the company was in pursuance of the service contract between the employer and the employee. From Annexure P-2 of the petition of complaint it appears that the company at their extra-ordinary meeting held no 16.02.2007 resolved to terminate the service of the defacto complainant. In paragraph 5 of the petition of complaint the complainant has admitted that the accused nos. 2 and 3 entreated the complainant to entrust his individual survey licence and upon complainant's approval the complainant was lifted to the status of the Director of the company and accordingly corporate survey licence of the company was amended with effect from 26.07.2003 to 16.06.2007 incorporating 24 the complainant's name as Director. From such admission it is clear that the elevation of the defacto complainant as Director was followed in pursuance of such contract and his name was incorporated in the corporate licence of the company for a period from 26.03.2003 to 16.06.2007 on his tacit consent. Once the corporate licence is issued for a particular period in terms of such contract the corporate licence becomes the property of the company though it was prepared on the basis of individual licence of the Director inducted on the condition that his individual licence shall be used by the company for a specified period.
20. But the subsequent events did not take place in accordance with the desire of the parties to the contract. For dispute and difference between the parties service of the defacto complainant was terminated as per resolution dated 16.02.2007 though the corporate licence was valid up to 16.06.2007. Obviously for such contractual period the complainant cannot use his individual licence for maintaining his livelihood elsewhere. Since the service of the complainant was terminated with effect from 17.02.2007 his livelihood has been affected. It is alleged that the company has unlawfully terminated his service with malice and malafide motive. 25 This gives rise to breach of contract and consequential damages. Therefore, the dispute arising out of such termination of the services of the complainant as well as retention of his survey licence during tenure of such contract is purely civil in nature and the Directors of the company having no mens rea should not be criminally prosecuted by filing any FIR giving such breach of contract in a criminal outfit. This shall obviously be treated as an abuse of the process of law which should be discouraged. Therefore, I hold that the ratio in 1993 SCC (Cri) 149 will also be applicable in this case.
21. Learned lawyer for OP no. 2 has also drawn my attention to one unreported case of Ashok Kumar Sinha -Vs.- State of W. B. in CRA No. 47 of 1998 disposed of by this Hon'ble Court on 22.01.2008. In such a case the Hon'ble Court held inter alia that temporary retention of money is sufficient and would justify the inference that the accused retained the same with the dishonest intention to misappropriate the same or to convert the same for his own use will come under the mischief of Section 409 IPC. The fact of the above case is dissimilar because retention of individual licence by the employer in terms of service contract for a specified period and for specific purpose cannot be identical with retention of money used for 26 some other purpose. Similarly in Durgadas's case, AIR 1959 Bombay 82 it is held that 'property' will be construed to mean that which acquires actual value only after it goes into the hands of a person who cheats. The individual licence of OP no. 2 itself is a valid document for a specific period and its validity is not contingent upon its passing into the hands of the company in whose favour it was delivered by the OP no. 2 in terms of his service contract. So the same cannot be treated as misappropriation of a 'property' as claimed. So both the above principles cited by the learned Lawyer for the OP no. 2 will not be applicable in this case.
22. Considering all these aspects I hold that further continuation of the instant proceeding is an abuse of the process of law which is not sustainable and as such the instant proceeding is quashed and the accused persons are discharged reserving right of the complainant to seek civil remedies claiming damages against the accused persons at his option before the appropriate forum.
23. Both the revisional applications are thus disposed of. I make no order as to costs.
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24. In view of above decision the connected CRANS being 1399 of 2009 and 2381 of 2010 will also be treated as disposed of.
25. Urgent certified photocopies of this order, if applied for, be supplied to the parties, on compliance of all requisite formalities.
(Syamal Kanti Chakrabarti, J.)