Balamukunda Mohanty vs Mrs. Chandra Mohini and Others

R.K. Patra, J.—The learned Sub-divisional Judicial Magistrate, Jeypore by order dated 20.1.1989 passed in G.R. Case No. 444 of 1984 accepted the final report submitted by the Investigating Agency and rejected the protest petition of the Petitioner holding that there is No. prima facie case u/s 406 of the Indian Penal Code (in short, ''I.P.C.''). The aforesaid order is the subject matter of challenge in this revision filed at the instance of the informant.

This revision was filed against seven persons who allegedly committed offence of misappropriation amounting to Rs. 7, 14,329.00. Opposite party No. 3 having died during pendency of this revision, it stands abated against him by order dated 22.2.1995. Similarly, the revision stands dismissed against opposite parties 1, 2, 4 and 6 by order dated 27.4.1995 for non-compliance of a peremptory order. It now survives against opposite parties 5 and 7.

It was submitted on behalf of the Petitioner that the protest petition ought to have been treated as a complaint and the learned Magistrate should have dealt with the matter by complying with provisions contained in Chapter-XV of the Code of Criminal Procedure. It is not necessary to consider this contention inasmuch as perusal of the F.I.R. would indicate that it was a pure case of civil nature and No. case u/s 406, I.P.C. has been made out.

It was alleged in the F.I.R. that the informant was the Assistant Manager (Sales) of the Indian Oil Corporation Limited which had Divisional Offices at different places including at Jeypore. For the purpose of ensuring distribution and supply of Kerosene in interior areas not accessible by rail, the company had set up storage points known as Taluk Kerosene Depots (in brief ''RKDs'') at various places and one such depot was set up at Jeypore and another at Rayagada. Such depots were operated by concerned dealers as the contractors for the TKO on monthly remuneration. The allegation is that M/s. Republic Agencies committed breach of trust in respect of 260.064 K.L. of kerosene oil whose valuation comes to Rs. 7,12,329.09. The accused persons were said to be its employees.

The F.I.R. lodged by the Petitioner was duly registered on the basis of which investigation was taken up. The Investigating Officer examined a number of witnesses and various documents. He found that Clause 36 of the TKO Agreement contained an arbitration Clause for resolution of disputes arising out of the agreement by way of arbitration. He noticed that Indian Oil Corporation limited has already filed Civil Suit No. 426 of 1986 before the Calcutta High Court for appointment of an arbitrator. In the circumstances, he formed opinion that the dispute was of civil nature and No. criminal case u/s 406, I.P.C. was made out and accordingly filed a final report which has been accepted by the learned Magistrate, as indicated above.

On consideration of the F.I.R. and the relevant materials collected in course of the investigation, I am of the opinion that the learned Magistrate has rightly accepted the final report by rejecting the pretest petition filed by the Petitioner.

There is thus No. merit in this revision which is accordingly dismissed.