KALYAN KUMAR Vs. MESSRS NATIONAL TESTING AND ENGINEERING

JUDGEMENT

(1.) This is a petition for quashing the proceedings in complainant Case No. C-122/85 pending in the 1st Court of the Judicial Magistrate, Sealdah.

(2.) The petitioner was an employee of Messrs National Testing and Engineering Corporation at 22A, Dum Dum Road, P. S. Chitpur, Calcutta. The opposite party No. 2 is a partner of the firm. The firm, Messers National Testing and Engineering Corporation, applied to the Bhaba Atomic Research Centre, Bombay. (B.A.R.C.) for short for supply of Isotopic camera and Isotope in connection with their business in Radiography and other allied things. The B.A.R.C. expressed their inability to supply the same. They agreed to give training to a suitable person to be appointed by the film at the firm's expense so that the B.A.R.C. could supply the firm with the Isotopic camera and Isotope. Accordingly, an agreement was entered into between the petitioner and the firm on 1.6.1984. The terms of the agreement, inter aha, were that the petitioner would undertake training course at the B.A.R.C. at the expenses of the firm and would thereafter served the firm at least for five years. There were various terms in that agreement as to what would happen in case the petitioner left the service in the firm before the expiry of the minimum period of five years of if the service of the petitioner was terminated by the firm for unsatisfactory performance or if the service of the petitioner was terminated within a period of five years by the firm as a result of disciplinary action against him. These terms related to payment of liquidated damages and compensation. The father of the petitioner, Lakshnoan Chandra Kumar, was the surety in the agreement dated 1.6.1984.

(3.) A petition of complaint was filed by the firm and the opposite party No. 2 against the petitioner under sections 406 and 408 I.P.C. alleging that after undertaking the training course at B.A.R.C. Trombay, at the expense of the firm to the turn of Rs. 10.000.00 and obtained certificate from the B.A.R.C. on the basis of which the Isotopic camera and Isotope were to be supplied by the B.A.R.C., the petitioner failed to join the firm on various pretexts such as illness of his grandmother and his own illness and had caused loss to the firm to the turn of Rs. 1,00,000.00. As the petitioner failed to join the firm inspite of letters being sent to him by the firm, the petitioner was directed by the firm to call at the office of the firm along with the original certificate and the relevant papers received from B.A.R.C. within a week by a letter dated 3.12.84. The petitioner thereafter failed to sent the original certificate and the relevant papers received by him from the B.A.R.C. The opposite parties alleged that as the employee of the firm, the petitioner was entrusted with receiving the papers and documents from the B.A.R.C. on behalf of the firm and that the petitioners was willingly withholding the same and thereby committed by a criminal breach of trust is not sending the papers as well as the certificate and is not joining the firm after completing of the training in the B.A.R.C. It was also alleged that in violation of the legal contract entered into between him and the firm, the petitioner was trying to utilise his training for his own illegal benefit by joining another firm of a like nature or starting a business a fresh of his own and thereby committed also criminal breach of trust. On alleging that the opposite party No. 2 had been to the Officer-in-Charge, Chitpore P. S. to take cognizance of the matter and that the Officer-in-Charge, Chitpore P.S. had referred the opposite parties to court for appropriate direction, the opposite parties filed the petitioner of complaint under sections 406 and 408, I.P.C.