ASIATIC OXYGEN LIMITED Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application under Section 397, read with Section 401 of the Code of Criminal Procedure, (hereinafter to be referred as the Code) is directed against order dated 13.8.1998 of Sri K.S.C. Sinha, Judicial Magistrate, First Class at Jamshedpur declining to discharge the petitioners in C-1/Case No.62 of 1994 in accordance with the provisions of Section 245, of the Code. The petitioners are accused in the above noted case instituted on the basis of a complaint filed by opposite party No. 2 Bihar Air Products Limited, a company incorporated under the provisions of the Indian Companies Act, 1956 . Petitioner No. 1 M/s. Asiatic Oxygen Limited is likewise a public limited company incorporated under the provision of the said Act. Petitioner Nos.2 to 5 are employees and functionaries of petitioner No. 1 working as General Manager, Chief Executive (Finance), Manager (Operation) and Company Secretary & Manager (Finance) respectively.

(2.) The case of the complainant/opposite party No. 2 is that they are distributors of 'Argon' gas manufactured by M/s. Gujarat State Fertiliser Corporation Limited. Under an arrangement for selling argon gas manufactured by Gujarat State Fertiliser Corporation Limited, they had supplied to petitioner No. 1,252 argon gas cylinders till 16.5.1991 and submitted bills for Rs.9,29,000/- (rupees nine lakh and twenty- nine thousand) till 30.11.1993 on account of price of the gas and rental for the cylinders. Under the agreement/arrangement for such supply petitioner No. 1 and its employees had agreed to return empty cylinders to the complainant. Consequently, a request was made by the complainant for returning the empty cylinders. On such request having been made petitioner No. 4 wrote back a letter to the complainant on 30.5.1992 to collect empty cylinders. However, when agent of the complainant went to collect or take delivery of the empty cylinders at Calcutta, the headquarters of petitioner No. 1, the officers of petitioner No. 1 namely, petitioner Nos. 2 to 5 refused to deliver those empty cylinders without assigning any reason whatsoever. The complainant alleged that due to such act of the petitioners, they were required to pay huge amount to Gujarat State Fertilizer Corporation Limited by way of rental for the cylinders which they had received from the latter and had supplied to the petitioners. Again on 30.11.1993, agents of the complainant approached the petitioners for returning the empty cylinders and on that occasion, the latter promised to return those empty cylinders latest by 15.12.1993. However, on 15.12.1993 the petitioners when approached, refused to deliver the empty cylinders to the agents of the complainant. Hence, the complainant filed a written complainant against petitioners charging them of commission of offences under Sections 420 and 409 of Indian Penal Code.

(3.) Cognizance of the offences under Sections 420/409 of Indian Penal Code was taken by the Chief Judicial Magistrate, Jamshedpur and the case was made over to Sri K.S.C. Sinha, Judicial Magistrate of Jamshedpur. In course of trial, the complainant examined as many as three witnesses under Section 244 of the Code and brought on record a number of correspondences entered into between the parties respecting the gas cylinders, The petitioners sought their discharge under Section 245 (1) of the Code on the ground that on the basis of the evidence so far adduced, no offence under Section 420/406 of Indian Penal Code is made out against them. They also took a plea that petitioner No. 1 being a collaborator of the complainant and petitioner No. 3 being director thereof could not be prosecuted without proper section or, at least, except on complaint filed by the person duly authorised by the Board of Directors of the complainant.