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Suresh Venkatrao Nerlekar (Dr.) Vs. Sharanghadar Pandurang Nadkarni and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany;Criminal
CourtMumbai High Court
Decided On
Case NumberCriminal Application No. 1770 of 1981
Judge
Reported in1982(1)BomCR867
ActsCompanies Act, 1956 - Sections 630 (1); Small Causes Courts Act, 1882 - Sections 41; Bombay Rents, Hotel and Lodging House Rates Control Act, 1947
AppellantSuresh Venkatrao Nerlekar (Dr.)
RespondentSharanghadar Pandurang Nadkarni and ors.
Appellant AdvocateR.M. Agarwal and ; N.N. Vaishnawa, Advs.
Respondent AdvocateR.G. Menon, ; K.R. Dhanuka, Advs. V.S. Khemka & Co., for respondent No.1; S.B. Patil, P.P.
Excerpt:
criminal - stay - section 630 (1) of companies act, 1956 and section 41 of small causes courts act, 1882 - complaint against petitioner under section 630 (1) (b) for wrongful occupation of premises after termination of employment - prosecution proceedings initiated - suit also filed for possession in court of small causes prior to said prosecution - question raised whether petitioner was tenant or not - petitioner sought stay of proceedings - petitioner contended that civil court has got exclusive jurisdiction to decide status of petitioner - adjudication of status not relevant consideration to stay criminal proceedings - prayer for stay of proceedings pending criminal court cannot be accepted. - indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying.....s.j. deshpande, j.1. this is an application filed under article 227 of the constitution of india and also under section 482 of the code of criminal procedure inviting the high court to quash the proceeding of criminal case no. 21/s of 1981 pending in the court of the metropolitan magistrate, 17th court, mazagaon, bombay. the petitioner has not challenged any specific order in this application. petitioner is the original accused. respondent no. 1 is the company by name 'the modern mills limited' who has filed the above criminal case under section 630(1)(b) of the companies act, 1956. initially the application was filed on october 12, 1981. it appears that at the admission stage the first respondent was also served and appeared. the application at that stage was found not to be maintainable.....
Judgment:

S.J. Deshpande, J.

1. This is an application filed under Article 227 of the Constitution of India and also under section 482 of the Code of Criminal Procedure inviting the High Court to quash the proceeding of Criminal Case No. 21/S of 1981 pending in the Court of the Metropolitan Magistrate, 17th Court, Mazagaon, Bombay. The petitioner has not challenged any specific order in this application. Petitioner is the original accused. Respondent No. 1 is the Company by name 'The Modern Mills Limited' who has filed the above criminal case under section 630(1)(b) of the Companies Act, 1956. Initially the application was filed on October 12, 1981. It appears that at the admission stage the first respondent was also served and appeared. The application at that stage was found not to be maintainable as far as quashing of the proceeding is concerned. Thereafter the petitioner was allowed to amend the petition-application and the amendment was incorporated in the application, which is at pages 7 to 9 of the paper-book. The amendment related to changing of the prayer and confining it only to the stay of the criminal proceeding pending in the Magistrate's Court and also the prosecution.

2. A few facts leading to this application may be stated to understand controversy in this application :

The first respondent-complainant initiated the prosecution in the Court of the Metropolitan Magistrate, 17th Court, Mazagaon, Bombay by its complaint dated April 22, 1981. Till October 21, 1981 there were several adjournments and the petitioner who was original accused did not file any say or statement pleading guilty or otherwise. The case was adjourned to November 14, 1981. It was stated that the Magistrate was orally requested to say the proceedings. Then on October 12, 1981 the present petition under Article 227 of the Constitution of India and under section 482 of the Code of Criminal Procedure was filed in the High Court inviting the High Court to quash the criminal proceeding.

3. The first respondent-company is the employer and the petitioner accused is their ex-employee, who is a doctor and conducting his dispensary in the premises of the Company under an agreement which is called leave and licence agreement dated July 1, 1969, he was given permission to conduct the dispensary. There is also an order of appointment which is dated July 2, 1969, the terms of this order are as under :

'Pursuant to the agreement dated 1st July, 1969 signed between this company and yourself, we have pleasure in appointing you as the Medical Officer of the Company's Mills on retainer basis. You will be paid a retainer fee of Rs. 400/- (Rupees four hundred only) per month. During the tenure of your office, you will carry out the following duties'.

Then other terms are not necessary to be quoted. Last but one paragraph of the order of appointment is as under :

'You will be permitted to use the dispensary situated in the compound of the Modern Mills' Chawls facing Clerk Road and Jacob Circle along with the equipment provided therein and you shall pay a sum of Rs. 75/- per month by way of compensation for use and occupation of the said dispensary premises'.

It is also necessary to refer the last paragraph of letter of appointment which is under :

'Your association with us will be governed by the other terms and conditions specified in the said agreement dated 1st July, 1969. It may please be noted that you will not be eligible for any provident fund, gratuity, bonus or any other benefits applicable to the employees of the company.'

On the strength of this agreement, the petitioner served in the employment of the Company for a period of 10 years as provided by the agreement. After expiry of 10 years' period, he was served with the notice of termination during the tenure as a Medical Officer, under the terms of the agreement, which I will quote later. The petitioner was put in possession of the premises measuring 240 square feet in area and in view of Clause 2 of the terms of the agreement he was to continue in the occupation of the premises till such time that he was to serve as Medical Officer. The relevant Clause 2 of these terms is quoted below:

'2. That upon the licensee being appointed as such Medical Officer and so long as he continues to be such Medical Officer, he will be permitted to use the said dispensary premises of the Mills for a period of 10 years or the extended period if any as referred to in the recital above and shall be entitle to use during the period the equipment which the owners have furnished the said dispensary with.'

There is an undertaking clause to be given by licensee as mentioned in Clause 4 of the agreement. It shows that he was to carry on the duties which were carried out by the Retiring Medical Officer R.S. Samsi. It is not disputed that prior to the occupation of the premises by the petitioner, said Dr. Samsi was in the occupation of these premises. The petitioner was introduced to the Company by the said Dr. Samsi. This Dr. Samsi had become old and was unable to carry out his duties. He, therefore, recommended the name of the petitioner to the Company to perform the same duties, which he was carrying out. In the agreement dated July 1, 1969 there is a reference that the petitioner who is a licensee was nominated by R.S. Samsi as his successor Medical Officer of the owner's Mills at Bombay unless they have agreed to accept the said nominee as a lawful nominee of the incumbent of the office of the Medical Officer and the owners are desirous of permitting the licensee, the use of the owner's dispensary situated in the compound of the Modern mills chawls facing Clerk Road and Jacob Circle, Bombay for a period of ten years from the date of the execution of the agreement. The compensation which was agreed under the term Clause 3 of the agreement was Rs. 75/- per month.

4. It was the case of the first respondent that the petitioner occupied the said premises from 1969 to 1979 for a period of 10 years and he was also permitted to use the premises of the dispensary as provided by the terms of the agreement. On June 14, 1969 the first respondent-Company terminated his employment and in terms of the agreement asked him to handover possession and revoke the permissive user of the premises of the dispensary. The petitioner replied to this notice by his reply dated June 25, 1979 and he refuted the contents of the letter and asserted that he is a tenant of the premises. He also asserted that the agreement is colourable and he is not liable to vacate the premises.

5. Under these circumstances, the respondent company filed the alleged prosecution against the petitioner-accused charging him under section 630(1)(b) of the Companies Act for wrongful occupation of the premises after termination of the employment. This criminal case as I have stated earlier was commenced on April 22, 1981 in the Criminal Court. Prior to this prosecution, it appears that the Company also had filed R.E. & C. Suit No 160/223 of 1980 for possession in the Court of Small Causes at Bombay under section 41 of the Small Causes Courts Act. This suit is filed on May 2, 1980. I am specially referring to these proceedings because it has bearing on the conduct of the petitioner in this case. After the said suit was filed a summons was served on the petitioner on March 20, 1981 and the learned Advocate for the first respondent-Company has pointed out to me that no written statement has been filed by the petitioner in his suit.

6. There is another proceeding which was filed by the petitioner himself on June 27, 1979. It is a declaratory suit being No. R.A. DECL. Suit No. 2990 of 1979 in the Court of Small Causes at Bombay. It is filed under the Bombay Rent Act challenging the title of the first respondent and also a declaration was sought that the petitioner is the tenant of the first respondent and that suit is also pending.

7. It appears that in the said declaratory suit also no effective progress has been recorded as far as the trial is concerned and the suit is fixed for hearing on March 29, 1982.

8. Against this background, the present complaint out of which this criminal application arises, is filed by the first respondent-Company against the petitioner. After the process was issued, the petitioner did not take part in the proceeding effectively and ultimately he approached the High Court with two prayers by this application. The first prayer is to the effect that the proceeding in Criminal Case No. 21/S of 1981 be quashed and the second prayer is to stay the criminal case pending in the Magistrate's Court. At the outset, it must be pointed out here that the learned Advocate for the petitioner Mr. R.M. Agarwal stated that in regard to prayer of quashing the proceeding in criminal case pending in the Magistrate's Court, it is not possible to sustain such a prayer in a petition like this and there are no grounds to press into service the prayer of quashing the prosecution-proceeding. However the learned Advocate for the petitioner contended that his prayer for stay of the proceedings in criminal case should be considered by this High Court.

9. The learned Advocate for the first respondent-Company by way of preliminary objection pointed out that petition-application under Article 227 of the Constitution of India is misconceived. I see some force in this contention. In fact, initially the commencement of this proceeding by petition under Article 227 of the Constitution of India is really misconceived. There are two reasons for it. First of all there are no grounds at all. The material point set out is that the High Court should apply to such material exceptional or extraordinary grounds and secondly there is no basis for quashing the proceeding at all. The second objection taken by the learned Advocate for the Company was that the remedy of moving the lower Court i.e. Magistrate's Court is not adopted by the petitioner herein. It is true that the petitioner should have been immediately asked to approach the Court of Magistrate and rushing to the High Court invoking extraordinary power under Article 227 of the Constitution of India is not desirable in such sort of cases. But as the petitioner as admitted and the rule was issued and the matter was argued at length I have not chosen to dismiss the petition on that ground, however, I hold that in such matters it would not be fit and proper for the High Court to entertain such petition unless exceptional and extraordinary grounds are made by the petitioner. I have heard both the Counsel on merits on the rival contentions and I proceed now to determine the controversy in this petition application.

10. It is the case of the first respondent that after termination of the employment, the petitioner has no right to stay in the dispensary premises which belonged to the respondent-Company, with effect from June 14, 1979 or July 1, 1979. The petitioner has also no right to occupy the dispensary premises in Mills compound. Occupation of the premises by the petitioner was dependent on his holding the post as Medical Officer, and connected with his employment as Medical Officer with the Company and, therefore, the respondent-Company's case is that after termination of the employment he has no right to stay in the premises. The petitioner as against this has answered this by saying that he is entitled to stay because the Company itself has file a suit being Suit No. 160p 223 of 1980 in the Court of the Small Causes at Bombay, which have referred to above and a point whether the petitioner is a tenant or not is involved in this complaint in the Criminal Court. The principal issue which arises is common both in civil and criminal proceedings. It is desirable that it is a Civil Court along which should ultimately decide this point.

11. It was strongly contended by the learned Advocate for the petitioner, Mr. Agarwal that a Civil Court alone has got exclusively jurisdiction to have decided the status of the petitioner and, therefore, the criminal proceeding pending in the Criminal Court should be stayed to avoid embarrassment and prejudice to the petitioner. In support of their rival contentions, several authorities were cited before me. I will first deal with the principles which can be applied to stay the proceedings in a criminal case.

12. It is well settled as decided by the Supreme Court in M.S. Sheriff v. State of Madras, : [1954]1SCR1144 that no hard and fast rule can be laid down and conflicting decision in the Civil and Criminal Courts is not relevant consideration. The learned Advocate for the first respondent-Company has specially emphasized these two principles and invited my attention to other judgment also. For the sake of brevity I do not propose to deal with these cases which were cited before me. Suffice it to say, refer to the rule laid down in Kishandas Tekchand v. The State, : AIR1956Bom423 . This judgment is delivered by the Division Bench of this Court and it held that :

'The Court is not justified in directing criminal proceedings to be stayed on the bare theoretical ground that question of tenancy can be more appropriately dealt with by the Civil Court, specially when it is clear from the applicant's conduct that he is not serious about prosecuting his suit and is obviously playing for time.'

13. The other judgment, which is referred, is reported in Dr. Saleendra Nath Sinha v. State and another, : AIR1955Cal29 . A reference to another judgment of the Bombay High Court was also made and this judgment is reported in State of Maharashtra v. Rasiklal K. Mehta . In this connection one more authority was cited by the learned Advocate, which is reported in Ramkrishna Sawalaram Pedkar v. State of Maharashtra , and some other judgments were cited before me. However, I do not propose to burden this judgment for the citation because in my opinion the above authorities to which my attention was invite by the learned Advocate for the Company are sufficient to indicate the grounds on which the stay of proceeding can be ordered.

14. In this case it is material to note that the petitioner is an ex-employee of the Company. He is now advised to state that the agreement which he has executed is colourful and bogus. He is also alleging that he is a tenant of the premises. Without going to the merits of his claim of tenancy, it is sufficient for the purpose of this petition to examine the correctness of the argument advanced by the learned Advocate for the petitioner. Mr. Agarwal, the learned Advocate for the petitioner stated that the issue of tenancy is identical an common before the Civil Court and Criminal Court, and, therefore, the prosecution should be stayed. I am afraid to accept this contention. It is obvious that the civil and criminal process works in different sphere. The question before the Criminal Court under section 630(1)(b) of the Companies Act will be as follows :

'1. Whether the petitioner was an employee of the Company ?

2. Whether the premises which were given to him were in pursuance of the terms of the agreement as part of his employment as Medical Officer and;

3. Whether the employment and his occupation were interconnected with each other?'

Now, in this regard if it is found that the petitioner obtained these premises as employee of the Company, his occupation of the premises after termination of the employment will be without any lawful authority and he would be retaining those premise unlawfully. It is this wrongful retention which is the subject matter of the criminal complaint and a person has said to have gained something wrongfully, when he gets it by wrongful act. Therefore, in this case if the premises were given to the petitioner as Medical Officer and if they were to be enjoyed by him for a particular purpose and with special permission of the respondent-Company as found in several clauses in the agreement, it is not necessary for the Criminal Court to find out his actual status at all, and therefore, to that extent the issue before the Criminal Court will not be ascertainment of the status.

15. The issue will arise in the defence which the petitioner may offer before the Criminal Court. If he offers that defence in the Criminal Court, the Criminal Court is entitled to decide the same on merits for the immediate purpose. The result of such a decision will ultimately govern the prosecution. In this matter, the contention of the learned Advocate for the petitioner that the issue before the Civil Court and the Criminal Court is identical is not acceptable to me. The learned Advocate for the petitioner invited my attention to several authorities. I will take note of few authorities which are strongly relied on.

16. The first case, which was relied on by the learned Advocate for the petitioner is unreported judgment of this Court decided by Justice Patwardhan. This judgment was delivered in Criminal Application No. 1382 of 1960 on November 11, 1960. However, this judgment is of no assistance to the petitioner, because this judgment does not decide any issue in hand and contains only observations which are perhaps might have made by the learned Judge against the facts and circumstances of that case. The learned judge has formulated the question and observed as under :

'The question which I have now to consider is whether it would be in the public interest to stay criminal proceedings pending the civil suit. It is no doubt true that the first information in the criminal case has been filed much earlier and the suit has been filed later. Even then the matter is essentially of a civil nature, and it would be in the public interest to decide the substantial dispute between the parties first in the Civil Court and if after the decision of the civil suit, any criminal dispute remains between the parties, that dispute should be dealt with by the Criminal Court.'

The very observation of this Court in that case will show that if any criminal dispute remains between the parties, it is ultimately to be decided by the Criminal Court alone. As I have stated earlier that the prosecution before the Criminal Court is concerned with the limited issue and to that extent limited criminal dispute cannot be said to be the matter of controversy in the civil suit at all. The reliance by the learned Advocate for the petitioner on this judgment is not justified.

17. The learned Advocate for the petitioner relied on further authority reported in Thakorlal Vadilal v. Ambalal Bhikabhi Patel 44 Cri.L.J. 1943. This judgment is delivered by Justice Beaument, the then Chief Justice, who was concerned with a case in which the properties were of joint family. The portion of the joint family property was in the occupation of the complainant who claimed as a tenant and was the defendant with the others in that suit. The complaint was in respect of the alleged criminal trespass and wrongful restraint relating to the portion of the suit property. The learned Judge was right in observing that the ultimate decision in that case is rested on the character of the property and right to immediate possession would be decide by recourse to the prayer for injunction. Against this background, the learned Judge held that the criminal proceeding may take precedence over the civil suit and the learned Judge has also observed that :

'I have not the slightest doubt that in this case the proper order is to stay the criminal complaint pending the hearing of the civil suit, with the usual provide that if the civil suit is not proceeded with diligently, the complainant may make an application of removal of the stay.'

The basis of the judgment was also on the footing that the multiplicity of the proceeding also is not in the interest of the public, and the learned Judge held that there should a stay of criminal proceeding. The facts in the present case are distinguishable. The petitioner is an employee of the Company and the prosecution is only limited to his breach of terms of the employment, and therefore, in my opinion, the ultimate result of the title in regard to the premises is not relevant consideration in this case. Therefore, this authority has no application.

18. There is another judgment on which a strong reliance is placed by the learned Advocate for the petitioner. This judgment is reported in Mr. P.F. Linton v. Emperor (1927)28 Cri. L.J. 326. In this case, the learned Judge of the Lahore High Court has remarked in the concluding portion of the judgment as follows :

This was a case wherein the criminal proceedings were stayed. It is important to bear in mind that this was criminal case which was filed under section 420 of the Indian Penal Code by the complainant and the complainant also had filed a suit against the defendant on the allegation that the accused-defendant had received the money fraudulently and did not incorporate the receipt of Rs. 2400/- in the accounts of the firm. The Magistrate issued the warrant against the accused after examining the complainant-plaintiff only and without seeing the file of the civil suit.

The learned Judge of the Lahore High Court has further observed as under :'With regard to the Magistrate's refusal to consider the objection of the accused's Counsel it seems that the Magistrate does either not understand the scope of his powers under section 202, Criminal Procedure Code, or else is biassed against the accused.

For these reasons I consider that the proceedings of the Criminal Court should be stayed until the decision of the civil suit.'

In view of the special facts of that case that order of the Lahore High Court was justified.

19. Then the learned Advocate for the petitioner invited my attention to a judgment of the Patna High Court reported in Bhagwat Prasad v. Ramkisun Ram Sonar (1930)31 Cri. L.J. 766. A strong reliance was place by the learned Advocate for the petitioner in this case, because a similarity was noted in that case of the facts in the present case. In the case of the Patna High Court, a civil suit was instituted after the complaint was filed. In our case the suit is instituted prior to the complaint. In my opinion, the filing of the civil suit either before the commencement of the any determining the true issue in regard to the stay of the criminal proceedings. The real principle would be : What are special facts and exceptional circumstances disclosed by the parallel proceedings to order the stay of criminal proceedings. In the Patna High Court case if was observed as follows :

'But where a civil suit is instituted and thereafter a complaint as a counter-blast and particularly with a view to postpone the criminal proceedings till they are stale, stay should not be granted.'

It was also observed by the Patna High Court at page 767 that the general rule is that the High Court should avoid staying proceedings in the lower courts. In my opinion the judgment of the Patna High Court is of no assistance to the petitioner, because I have held that the issue before the Criminal Court and Civil Court is not identical.

20. Then, Mr. Agarwal, the learned Advocate for the petitioner, relied on another judgment of the Sind Judicial Commissioner's Court reported in Faiz Mohammed v. Abbas Jafferali (1935)36 Cri. L.J. 1350. The said Court has observed as under :

'Where the disputes which are the subject matter of the two cases are so intimately connected as to require the proceeding in the criminal case being postponed, to give precedence to the civil suit and the civil suit is not only prior in time but involves a decision on facts which must necessarily be proved in the criminal case before there can be a conviction, and it will be more satisfactory if this issue is decided by a Civil Court in the first instance, the criminal case should be stayed till the decision of the civil suit.......'

It is not able in this case that the learned Judge in the said case again observed that there is no hard and fast rule that the criminal case proceedings should be postponed pending bearing and disposal of the civil suit, but the case must be decided on its merits. As I have shown above, the facts of this case do not justify that the prosecution launched by the respondent-Company should be stayed pending the decision of the Civil Court.

21. I may refer to the judgment of our High Court delivered by the Division Bench consisting of Vaidya & Rege, JJ., in Criminal Application No. 1936 of 1975, decided on January 21, 1976. In this judgment the Court was concerned with similar question which arises for decision in the case before me. The facts of the above case are similar to the facts of the present one. The facts of the case were as under :---

The dispute was between the company and its employee. The company had filed the complaint against its employee in the Metropolitan Magistrate 7th Court, Dadar, Bombay. The employee as well as the landlord were joined as accused Nos. 1 and 2 respectively for the offences under sections 465, 467, 468, 471 read with section 120B and 34 of the Indian Penal Code. The charge, as made out in the complaint, exclusively referred to the allegation that the employee-petitioner-accused while in the employment of the company had in collusion with landlord, accused No. 2 forged certain documents of the company, which were in possession of the company in order to establish his right of tenancy to the premises in question and had deprived the company of their rights in respect thereof. The company had filed a declaratory suit in the Court of Small Causes, Bombay against both the employee and the landlord. The Magistrate issued a summons to the employee and the landlord. Before the hearing of that complaint, the employee-accused filed before the learned Magistrate an application for stay of the complaint till the hearing and final disposal of the said civil proceedings. The learned Magistrate had rejected that application relying on the judgment of the Supreme Court reported in M.S. Sheriff and another v. State of Madras and others, (supra) and this rejection of the application was challenged by the employee-accused No. 1 in a petition under Articles 226 and 227 of the Constitution of India and ultimately this Court on the similar facts held that was no error in the judgment of the Magistrate and refused to interfere with order of the Magistrate. Deriving the support from this judgment, I also feel that the contention of the petitioner is liable to be rejected.

22. It is rather disturbing that the petitioner herein, who is a Medical Officer, is attempting to take recourse putting certain defences such as tenancy or licence which are really open for every litigant. I am not impressed by the plea of the petitioner that he has derived the tenancy rights from the previous occupant of the premises. It is not able that the petitioner has relied on written assignment deed executed between the Company and the previous doctor named Samsi. I have asked the parties and I was told that till this date the deed of assignment is not filed on record. In my opinion, even for a while it is assumed that the petitioner may have some substantial claim to his right as a tenant or licensee, the adjudication of such right will not be relevant consideration to stay the criminal proceedings. The provisions of the Companies Act and the purpose for which section 630 is enacted will be simply defeated if the accused in such cases facing the prosecution are allowed to take easily recourse to civil litigation which everybody knows is nothing but prolonging misery for every litigant because of the delays caused in civil litigation. If the petitioner's defence is found reasonable and probable the prosecution of the Company will fail. Therefore, in my opinion, the prayer for stay of proceedings pending in Criminal Court is not fit to be accepted.

23. This is a petition under Article 227 of the Constitution of India. As I have shown above, I would have dismissed this petition in limine, but as I have heard the parties at length I have chosen to decide the issue although under limited jurisdiction of the High Court and the interference in the proceedings without any formal order of the lower Court or without any illegality being actually shown to the Court or any special or exceptional facts and circumstances brought out before the Court by way of grounds is the petition, would not be permissible for the High Court and to entertain such petition.

In the result, the rule in this petition is discharged. The stay granted by this Court stand vacated.


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