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Asasing S/O Nidhansingh Vs. International Conveyors Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Writ Petition No. 21 of 1985
Judge
Reported in1986(2)BomCR343
ActsCompanies Act, 1956 - Sections 630; Constitution of India - Articles 226 and 227; Code of Criminal Procedure (CrPC) , 1973 - Sections 468
AppellantAsasing S/O Nidhansingh
Respondentinternational Conveyors Ltd. and anr.
Appellant AdvocateS.L. Kulkarni, Adv.
Respondent AdvocateS.N. Loya, Adv. for respondent No. 1;A.M. Dabir, A.P.P.
DispositionPetition dismissed
Excerpt:
.....- he did not vacate premises even after leaving office - criminal proceeding under section 630 filed by company - petitioner pleaded bar of limitation contained in section 468 - petitioner was continuing to be in possession of premises - he has committed continuing offence - bar of limitation will have no application in case of continuing offences - fact that he has some kind of monetary claim against company is no answer to wrongful act committed by him - petition dismissed. - - the scheme of the companies act is that if any officer or any employee retains company properties with himself wrongfully and the court is satisfied about this act of the officer, the court is empowered to sentence the officer concerned to pay fine which may extend to rs. it is not the rule of law in..........the petitioner is an abuse of that jurisdiction. the petitioner has no defence whatsoever to the company's claim for possession of the suit premises from the petitioner. mr. kulkarni stated that the petitioner has got some monetary claim against the company. but he was not able to point out to me as to by what right he stuck fast to the premises, even assuming that he has some bona fide monetary claim against the company. it is not the rule of law in this country that if a creditor is entitled to some monies from the debtor, he can grab the debtor's property and continue to occupy the same until his alleged claim is satisfied. that would be a rule of jungle, not the rule of law. moreover, the petitioner's claim against the company appears, ex facie, to be wanting in bona fides......
Judgment:

Sharad Manohar, J.

1. The petitioner in this writ petition has got to be non-suited at the very threshold for the very simple reason that he is invoking this Court's jurisdiction for perpetuation of injustice.

2. The admitted facts are that the petitioner was in the employment of the respondent/Company till 30-6-1981 as the Chief Executive Officer. While he was in the employment, he has been allotted residential accommodation by the Company without payment of any rent. The fact that his employment is brought to an end lawfully from 30-6-1981 and that he ceased to be in the employment of the Company from that date is not at all in dispute. However, the petitioner refused to vacate the premises allotted to him for residence. The company gave him time till 31st January, 1982 for vacating the premises. He did not vacate the premises, nor did he institute proceeding against the Company for claim against the Company. But when the Company itself filed the suit against him for recovery of compensation in respect of the property in his occupation, he filed a counter claim contending that he was entitled to receive certain amount from the Company. That was as late as in the year 1983. The suit filed by the company itself is numbered as Special Suit No. 98 of 1983 and it was in that suit that the above mentioned counter-claim has been made by the petitioner.

3. The Company in the mean time filed the instant criminal proceeding against the petitioner under section 630 of the Companies Act and prayed for the necessary sentence against him under the said section. The petitioner, pleaded the bar of limitation contained in section 468 of Cri.P.C., and raised preliminary objection to the prosecution. The preliminary objection has been over-ruled by the trial Court holding that under section 630(2) of the Act there is a provision for imprisonment of the defaulting officer for a period which may extend to 2 years. In the instant case, the offence is alleged to have taken place on 1-2-1982 when the Company demanded possession back from the petitioner after the expiry of the grace period allowed to him the Company and when the petitioner refused to hand over possession. The complaint which as filed on 27-9-1983 was held, by the learned Magistrate to be within the period of 3 years of limitation, because, according to the learned Magistrate, sub-section (2) of section 630 of the Companies Act contemplated sentence of imprisonment. According to the learned Magistrate, therefore, the provisions of section 468(2)(c) of the Cri.P.C. came into operation and hence, the period of limitation, According to the learned Magistrate, was 3 years. The complaint filed by the Company on 27-9-1 983 was, therefore, held by the learned Magistrate to be within the period of limitation provided by section 468 of the Code.

4. In the revision application filed by the accused, the Sessions Court has disagreed with the view of the learned Magistrate. The Sessions Court has held that the offence that is alleged against the accused is not the one contemplated by sub-section (2) of section 630 of the Act, but the one contemplated by sub-section (1) of the same. The scheme of the Companies Act is that if any officer or any employee retains company properties with himself wrongfully and the Court is satisfied about this act of the officer, the Court is empowered to sentence the officer concerned to pay fine which may extend to Rs. 1000/-. The sentence contemplated by the offence alleged against the petitioner, therefore, is only of Rs. 1000/- (maximum) in the first instance. It is only when the Court gives direction to the employee to play fair and to return the property of the Company to the Company and when this order of the Court is disobeyed by the officer, the Court is given the power to sentence the recalcitrant officer concerned to imprisonment, which may extend to 2 years. According to the Sessions Court, the second stage of disobedienceof the order of the Court has not reached at all, because no Court has given such direction to the petitioner to hand over possession of the premises back to the Company. According to the Sessions Court, therefore, in normal circumstances, the offence would be punishable with fine only and hence, the period of limitation would be 6 months from the date of the offence, which took place, in the instant case, on 1-2-1982. In the absence of the provision of section 472 of the Code, the complaint filed by the company on 27-9-1983 after a lapse of more than one year, would be barred by limitation.

But the Sessions Court further held that on his own showing the accused has been sticking fast to the premises, admittedly given to him by the Company for residence while he was in the service of the Company, even on the date of the filing of the complaint. In fact it is an admitted fact that the accused continues to be in possession of the premises even till this date. Mr. Loya appearing for the company submitted that he is in possession of not only of the premises, but also of the furniture on the premises, which furniture belongs to the Company. Mr. Kulkarni appearing for the accused enters a caveat on this point. I am not here to decide the question as to what is the nature of the property held by the petitioner wrongfully. All those facts are to be proved in the trial Court. Point is that when the bar of limitation is pleaded, the Court has to assume that the offence has taken place and has to decide on the assumption of the commission of offence, as to whether prosecution can be said to be barred by limitation. For considering the question of limitation, I have to assume that the offence committed by the petitioner consists of wrongful retention of the premises and the furniture in the premises.

The Sessions Court has held that if the petitioner/accused was continuing to be in possession of the premises, then he has been committing a continuing offence and in that event the provisions of section 472 of the Code are attracted. That section clearly lays down that the bar of limitation will have no application in case where the offence complained of is a continuing offence. The learned Sessions Judge found that it the accused has been still holding fast to the premises and the furniture and other articles in the premises, then he has been committing a continuing offence and hence the question of limitation did not arise. The revision application was, therefore, dismissed by the Sessions Court.

It is against that order passed by the Sessions Court that the present write petition is filed by the petitioner.

5. 1 make it clear that there is a great deal of force in the view taken by the Sessions Court. But I hasten to add that I do not propose to rest my judgment on this position of law. To my mind, invoking this Court's jurisdiction under Article 226 or Article 227 of the Constitution in the circumstances admittedly the petitioner is an abuse of that Jurisdiction. The petitioner has no defence whatsoever to the Company's claim for possession of the suit premises from the petitioner. Mr. Kulkarni stated that the petitioner has got some monetary claim against the company. But he was not able to point out to me as to by what right he stuck fast to the premises, even assuming that he has some bona fide monetary claim against the Company. It is not the rule of law in this country that if a creditor is entitled to some monies from the debtor, he can grab the debtor's property and continue to occupy the same until his alleged claim is satisfied. That would be a rule of jungle, not the rule of law. Moreover, the petitioner's claim against the Company appears, ex facie, to be wanting in bona fides. Admittedly, the services of the Company came to an end on 30-6-1981. Admittedly, the premises were given in the petitioner's occupation strictly because he was in the employment of the Company and his right to occupy the same was co-extensive with his own continuance in the Company's employment. Further, it is not disputed that the company granted him time to vacate the premises till 30-1-1982. During that time, the petitioner did not take any proceeding against the Company to enforce his alleged claim against the Company. It is only when the Company insisted upon getting back possession and ultimately filed the suit for compensation against him that he has set-up the counter-claim in connection with the alleged amount receivable by him from the Company.

6. But the main point is that whatever may be the nature of the petitioner's claim against the Company, it is not a claim which entities him in law to stick fast to the immovable and/or movable property belonging to the Company for enforcement of his alleged claim. The fact that he has some kind of monetary claim against the Company is no answer to the wrongful act committed by him, as contemplated by section 630(l)(b) of the Companies Act. Section 630 is a summary provision for the purpose of obviating manifest injustices. If I exercise my writ jurisdiction to give the relief as prayed for by the present petitioner, resulting in perpetuating injustice on his part, I will be doing nothing but defeating the letter and spirit of section 630 of the Act. In addition to the fact that the provisions and principles of General Law of the land disentitle the petitioner from any relief qua those premises, this Court's jurisdiction is not meant for perpetuation of injustice. It is a high prerogative writ that I am empowered to issue for safeguarding people's right and saving them from injustices. The jurisdiction is not meant for giving handles to wrong doers for continuing with the wrong. To my mind, this writ petition needs be dismissed on this short point. I make it clear that this does not mean I do not agree with the learned Judge on the question that the offence is of a continuing character and that hence, it is not subject to the bar of limitation contained in section 468 of the Code.

7. The petition, therefore, falls and the same is hereby dismissed. The trial Court is directed to take up the complaint for decision and disposal immediately. The Rule stands discharged.


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