SAT PAL BAKSHI Vs. DURGA DASS

JUDGEMENT

(1.) ON August 7, 1982, Shri Sat Pal Bakshi, an employee of M/s. Association Traders and Engineers Limited, filed a petition/complaint under sections 406, 409 and 418 of the Indian Penal Code against the Managing Director, four directors, the Deputy Manager (Finance) and the Chartered Accountant of the company. His case is that accused No. 1 issued a circular, No. GM/S?75, dated August 1, 1975, inviting security deposits from the employees of the company. The complainant, in compliance with the said direction, deposit a sum of Rs. 440 with the company, vide receipt dated August, 1, 1975. The accused never deposited the security money in the Post Officer Savings Bank Account or in any scheduled bank as provided in section 417 of the Companies Act. The company thus knowingly and with mala fide intention contravened the terms of the agreement as well as the provisions of the Companies Act. On or about August 18, 1980, the complainant made a written demand for the return of his security deposit but the accused persons neither acknowledged the receipt of the letter nor have cared to refund the same. In the balance -sheet, the company has shown this amount under the head "Unsecured loan". In this way, all the accused persons have misappropriated the legitimate and hard earned money of the complainant and converted the same for their own use. The accused have committed an offence punishable under sections 406, 409 and 413 read with section of 34, Indian Penal Code. They be summoned and punished according to law.

(2.) THE complainant appeared as his own witness and supported the averments in his complaint in all its material particulars. The learned Metropolitan Magistrate, on consideration of the oral as well as documentary evidence, came to the conclusion that the complainant has miserably failed to bring his case within the four corners of the offences referred to above, inasmuch as there is no positive evidence to suggest that accused Nos. 1 to 4 have either converted the amount in any Post Office or Savings Bank Account as required under section 417 of the Companies Act, 1956. The complaint under these circumstances was dismissed. It is against this order that the complainant has filed the present petition.

(3.) THE first and foremost contention of learned counsel for the petitioner is that the learned Metropolitan Magistrate was required to form a prima facie opinion on the facts as disclosed in the complaint as well as the evidence led in support of the same. The Metropolitan Magistrate went wrong in carving out a plausible defense for the accused persons. Once the complainant has succeeded in proving the circular and the deposit of the security amount, its non -payment by itself is enough to prove the misappropriation. The respondents have contested the petition. None of these contentions are to their liking, as they have pointed out that there was absolutely no evidence, what to talk of prima facie evidence, to bring the case within the four corners of the sections sought to be invoked against the accused persons. According to learned counsel, the fault of not Realizing the security deposit lies on the complainant who failed to surrender the receipt or execute an indemnity bond against the receipt of the amount.