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2001 DIGILAW 419 (CAL)

Manas Kumar Ghosh v. State of West Bengal

2001-07-13

Debiprasad Sengupta

body2001
JUDGMENT Debiprasad Sengupta, J.: This revisional application is with a prayer for appropriate direction under section 630(2) of the Companies Act directing the ld. Magistrate to take appropriate steps to secure possession of the flat in question owned by the company and make it over to the petitioner. 2. The present petitioner is an officer of the Shipping Corporation of India Ltd., a Government of India undertaking and a company within the meaning of Companies Act, 1956. The opposite party No.1 who was appointed as Assistant Manager of the said company was provided with a flat owned by the said company on 30.11.92. The O.P. No. 1 retired from service of the company and as per terms of service he was under obligation to immediately vacate the said flat and surrender the possession of the same in favour of the company but the O.P. No. 1 without vacating the quarter, continued to remain in possession of the said flat. Accordingly the present petitioner being an authorised officer of the said Company filed a petition of complaint under section 630 of the Companies Act in the court of ld. Chief Judicial Magistrate, Alipore. 3. Mr. Dutta the ld. Advocate appearing for the petitioner submits that the proceeding in the court below is practically without any progress and the same is being dragged mainly at the instance of the accused O.P. The petitioner preferred a revisional application before this court and this court disposed of the said revisional application in 1996 with a direction upon the ld. Magistrate to dispose of the case preferably within a period of four months from the date of communication of the order. Mr. Dutta submits that inspite of such direction the trial could not be completed within the said period. On 19.2.97 the accused O.P. moved a petition before the ld. Magistrate praying for dropping of the said proceeding on the ground of pendency of Civil Suit. But the Id. Magistrate rejected such petition filed by the O.P. Against such order of rejection the accused opposite party preferred a revisional application before the ld. Sessions Judge. The ld. On 19.2.97 the accused O.P. moved a petition before the ld. Magistrate praying for dropping of the said proceeding on the ground of pendency of Civil Suit. But the Id. Magistrate rejected such petition filed by the O.P. Against such order of rejection the accused opposite party preferred a revisional application before the ld. Sessions Judge. The ld. Sessions Judge in the court below after hearing the parties partly allowed the revisional application of the accused O.P. by an order dated 8.8.92 and ordered that after the completion of the examination of prosecution witnesses the criminal proceeding would remain stayed till the disposal of T.S. No. 88/95. Against such order of the ld. Sessions Judge the present petitioner moved a revisional application before this court being C.R.R. No. 2903/97. This court by an order dated 18.6.99 allowed the revisional application, set aside the impugned order of the ld. Additional Sessions Judge and directed the ld. Court below to proceed with the trial and to conclude the same in accordance with law preferably within a period of four months from the date of communication of the order. Mr. Dutta submits that the aforesaid order passed by this court on 18.6.99 was duly communicated to the ld. Magistrate but inspite of such direction there is absolutely no progress in the trial. Referring to the order sheet of the ld. Magistrate Mr. Dutta submits that save and except issuing warrant of arrest against the accused O.P. and adjourning the matter for execution report of such warrant of arrest, the ld. Magistrate could not proceed any further in the matter. In such circumstances Mr. Dutta prays that an appropriate direction may be given by this court directing the ld. Magistrate to take appropriate steps to secure possession of the flat in question and to make it over to the petitioner. 4. Mr. Dutta the ld. Advocate of the petitioner relies on a judgement of this court reported in 1997(II) CHN 423 (Metal Box India vs. State of West Bengal). From a reading of the said judgement it appears that it was held by the ld. 4. Mr. Dutta the ld. Advocate of the petitioner relies on a judgement of this court reported in 1997(II) CHN 423 (Metal Box India vs. State of West Bengal). From a reading of the said judgement it appears that it was held by the ld. Single Judge of this court that when the continuous right to retrieve the property is quite explicit, it is in consonance with the view of the Apex Court in the judgement of Baldevkrishna Sahi vs. Shipping Corporation of India Ltd., J.T. 1995 (2) SC 528, to pass an order under section 630(2) of the Companies Act to direct an employee or past employee to vacate flat or restore the company's property to the company even before the Magistrate trying the case under section 630(1) of the Companies Act formally disposes of the criminal case against the employee or past employee. 5. I have carefully gone through the judgement referred to above and it appears that in delivering the said judgement the ld. Single Judge of this court relied upon the judgement of the Hon'ble Apex Court in the case of Baldeukrishna (supra). 6. I have heard the ld. Advocate appearing for the petitioner I have also perused the connected papers which are annexed to this revisional application. In my considered view for an appropriate direction under section 630(2) of the Companies Act the petitioner has to approach the ld. Magistrate first. Without approaching the ld. Magistrate the petitioner cannot straight way come up before this court for such relief under section 630(2) of the Companies Act. The provision of section 630(2) of the Companies Act runs as a follows:- “Section 630*************************************************** (2) The court trying the offence may also order such officer or employee to deliver up or refund within a time to be fixed by the court, any such property wrongfully obtained or wrongfully withheld or knowingly misapplied, or in default, to suffer imprisonment for a term which may extend to 2 years.” 7. The aforesaid provisions of section 630(2) of the Act provides that the court trying the offence shall have the jurisdiction to pass an order under the said section. In the present application it appears that the petitioner has not approached the ld. Magistrate by filing any application under section 630(2) of the Companies Act. 8. The aforesaid provisions of section 630(2) of the Act provides that the court trying the offence shall have the jurisdiction to pass an order under the said section. In the present application it appears that the petitioner has not approached the ld. Magistrate by filing any application under section 630(2) of the Companies Act. 8. In the case referred to above it appears that an application under section 630(2) of the Companies Act was filed before the ld. Magistrate with a prayer for handing over for vacant possession of the flat to the company but the same was rejected by the ld. Magistrate and against such order of rejection the petitioner come up before this court. In my considered view the petitioner should approach the ld. Magistrate by filing an application under section 630(2) of the Companies Act for such relief. If such prayer is refused then only the petitioner may come up before this court in revision. 9. Accordingly I dispose of the present revisional application by giving liberty to the petitioner to file an appropriate application before the ld. Magistrate praying for relief under section 630(2) of the Companies Act. I further direct that if such application is filed before the ld. Magistrate, the ld. Magistrate shall dispose of the same with utmost expedition preferably within a period of four weeks from the date of communication of this order. The present application is accordingly disposed of. Revisional application disposed of.