OM PRAKASH SRIVASTAVA Vs. BHOR INDUSTRIES LTD

JUDGEMENT

(1.) THIS is an application filed under Section 482 of Cr. P. C. arises out of 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 under Sec. 120 (B) read with Sec. 406 and 411 I. P. C. The complaint was taken on file by the learned Magistrate and directed an enquiry under sec. 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.

(2.) 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.

(3.) 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 Sec. 407. 411, 120 (B) 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 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 reported in 1979-Bombay C. R. 581 in Smt. S. Sukmini Achi and others Versus Bankimchandra K. Lodaya and another. 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 goods alleged to have been misappropriated or converted is not the ingredient of the offence under Section 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 provision 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.