AIRFREIGHT LIMITED Vs. K KOTHAWALA

JUDGEMENT

(1.) THIS Revision Application under sections 397 and 401 of the Criminal Procedure Code has been filed by the applicant-original complainant against the order passed by the learned Addl. Chief Metropolitan Magistrate, 4th Court, Girgaum, Bombay dated 5th November, 1992, discharging the respondent-accused under section 245 (i) of the Criminal Procedure Code of the offence punishable under section 630 of the Companies Act, read with section 406 of I. P. C.

(2.) THAT the petitioner-complainant filed a criminal complaint being Criminal Case No. 5/s of 1988 in the Court of Addl. Chief Metropolitan Magistrate, 4th Court, Girgaum, Bombay, against the respondent-accused on the accusition that the respondent-accused was in the employment of the complainant-Company. The complainant is the General Manager of M/s. Airfreight Private Limited being registered company under the Companies Act. The complainant had taken one flat on leave and licence basis from one Mrs. Sarla Kirpalani under the licence agreement. The flat known as Flat No. 110, situated at Olympus Apartment, Cumballa Hill, Altamount Road, Bombay. The leave and licence agreement was signed by the land lady Mrs. Sarla Kirpalani as the licensor and Mr. H. R. Bery, General Manager for Airfreight Pvt. Ltd. , as Licensee on 1st December, 1971. The further case of the complainant is that the said flat was allotted to respondent-accused Mr. Kayum Kothavala for his residence as he was in employment of the Company. The rent claimed to have been fixed at Rs. 750/- per month and that was being paid by the complainant-Company by deducting a sum of Rs. 545/- from the salary of the respondent-accused. It is also the further case of the Company that a letter dated 15th December, 1971 in the form of consent terms was obtained from the respondent that the said flat was allotted on leave and license basis and the respondent had agreed to give the peaceful, vacant possession on the expiry of the licence terms or if he ceases to be the employee of the Company. It also reveals that the respondent-accused was promoted and had reached to the post of Senior Manager of the Company and the deduction of the rent from his salary was also stopped and allowed to occupy the said flat as rent free residence by the petitioner-Company. It is submitted that by letter dated 11-1-1978 (P-2), the respondent-accused tendered his resignation from the post of the Manager of the petitioner-Company and by letter dated 19-1-1978 (P-3), the resignation of the respondent-accused was accepted by the petitioner-company. It is submitted that by letter dated 21-1-1978, the petitioner-Company requested the respondent-accused to hand over the vacant possession of the flat in question to the petitioner-Company. Again, by letter dated 8th March, 1978, the respondent-accused was requested to hand over the vacant possession of the flat but there was no response from the respondent-accused. Hence, it is submitted that a notice dated 16-8-1978 was issued through Patel and Cama Advocates to the respondent-accused. It also reveals from the record that the petitioner-Company filed a civil suit in the Small Causes Court being Civil Suit No. 27/40 of 1979 against the respondent-accused. Likewise, it reveals that the respondent-accused has also filed Civil Suit in the Civil Court against the Company and those suits are pending. In the meantime, the petitioner-Company moved with an application under section 630 of the Companies Act before the Metropolitan Magistrate. It is submitted that the respondent-accused had also filed application under section 482 of the Criminal Procedure Code in this High Court for quashing the said application which has been dismissed in 1981. Thereafter, Criminal Revision Application No. 271 of 1983 before the Sessions Court for stay of criminal proceeding was filed by the respondent-accused and the said Revision Application came to be rejected by the Sessions Court. Against that order, the respondent accused had preferred Writ Petition No. 140 of 1985 in the High Court which also came to be dismissed. In the meantime, it reveals that the petitioner-Company has purchased the flat in question by executing the sale agreement with landlady on 24-12-1986.

(3.) UNDER the above-stated circumstances, a complaint came to be filed against the respondent-accused under section 630 of the Companies Act and under section 406 of I. P. C. The learned Magistrate issued summons and recorded the evidence under section 244 of the Criminal Procedure Code and on perusal of the evidence, he discharged the respondent-accused under section 245 (1) of the Criminal Procedure Code by his order dated 5-10-1992. Against the impugned discharge order, the petitioner-Company has preferred this Revision Application.