Products India Ltd. Vs. Das John Peter & Ors.  INSC 510 (20 July
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL
NO.1304 OF 2010 [Arising out of S.L.P.(Crl.)No.6204 of 2008] Automobile
Products India Ltd. ....Appellant Versus Das John Peter & Ors.
Under the web of hypertechnicalities justice has taken a back seat
as is projected in the order dated 22.11.2006, passed by Additional Chief
Metropolitan Magistrate, Girgaum, Mumbai in Crl. Case No. 38/S/2005 filed by
appellant herein against accused respondent No.1 and 2, whereby and whereunder
the appellant's criminal complaint filed under Section 406 read with Section 34
of the Indian Penal Code [hereinafter referred to as "IPC"] and under
Section 630 of the Companies Act, 1956 (hereinafter referred to as "the
Act") was dismissed. Against the said order of dismissal, the appellant
herein filed an application before the learned Single Judge of the High Court
in Criminal Application No. 450 of 2007 seeking leave to file the appeal which
was also dismissed on Crl.A. @ S.L.P.(Crl.)No.6204 of 2008 14.7.2008, - 2 -
giving rise to filing of this appeal by the original complainant.
Unfortunately, the accused have also with vehemence supported
hypertechnicalities adopted by the aforesaid two courts, to contend that no
interference is called for in the light of the facts as found in the aforesaid
Facts shorn of unnecessary details are mentioned herein below:
Appellant is a Company (hereinafter shall be referred to as
"the Company") duly registered under the Act and is carrying on
business of manufacturing two and three wheelers' automobile products. Mr. V.S.
Parthasarthy is the Factory Manager of the Appellant-Company and has been
posted in Mumbai. A resulution has been passed by the Company on 31.12.2001 to
authorise Mr. V.S. Parthasarathy, Factory Manager to represent the company and
to sign, verify, execute and deliver all vakalatnamas, pleadings, complaints,
affidavits, declarations, petitions, written statements, rejoinders, papers,
deeds, receipts, assurances etc. in a court of law. On the same day, he has
been duly authorised by virtue of the Power of Attorney executed in his favour
by the Appellant Company to file and prosecute the aforesaid complaint.
S.L.P.(Crl.)No.6204 of 2008
On the complaint having been filed before the Additional Chief
Metropolitan Magistrate, the same was - 3 - registered. The allegation in the
complaint is that company is having a flat situated at 17, Carmichael Road
(behind Jaslok Hospital), Mumbai. One room near the garage (hereinafter shall
be referred as the 'servant quarter') is also under the ownership of the
company for being used by its servants. Even though, the complaint was filed
under Section 406 / 34 of the IPC as also under Section 630 of the Act, but
cognizance was taken by the trial court only under Section 630 of the Act.
Respondent No. 1 (accused No.1 herein) was working as a caretaker
with the Company to look after the flat. It is not in dispute that he has
retired from the service of the Company with effect from 6.3.1992. The servant
quarter was allotted to accused No. 1 by virtue of his service in the company.
Obviously, after his attaining age of superannuation, he was supposed to have
delivered its peaceful and vacant possession to the appellant/company. Instead
of doing so, he gave its possession to his daughter, accused No.2, and shifted
to Ambernath. As on date, it is accused No. 2, daughter of accused No.1, who is
in actual physical possession of the said servant quarter.
It is pertinent to note that a written undertaking is Crl.A. @
S.L.P.(Crl.)No.6204 of 2008 said to have been tendered by respondent no.1 on
5.1.2000 to the effect that he will vacate the servant quarter within one month
Since despite serving several legal notices to the accused, they
refused to hand over its peaceful vacant possession to the appellant, it was
constrained to file the aforesaid complaint.
Shri V.S. Parthasarthy, appeared as PW-1, and deposed before the
Court circumstances under which accused No.1 was handed over possession of the
servant quarter, where he had worked as caretaker. After his retirement,
despite promise made to the Company he has failed to vacate the servant
quarter. His evidence has been dealt with extensively by the trial court but it
is not required to be considered at this stage as Appellant's Criminal
Complaint has been dismissed on technical ground.
Defence of the accused in short was that the complaint as filed by
company through Mr. V.S. Parthasarthy is not maintainable inasmuch as the Power
of Attorney dated 31.12.2001, said to have been executed in favour of Mr. V.S.
Parthasarthy is a fictitious document. The services of accused No.1 were never
terminated and even after retirement he came to be re-appointed. Thus, he has a
right to continue in its possession. As regards his Crl.A. @
S.L.P.(Crl.)No.6204 of 2008 undertaking given to the Chairman of the Company on
5.1.2000, wherein he specifically agreed to vacate the premises on or before
31.1.2000, he contended the same was not tendered voluntarily, meaning thereby
the same was - 5 - given under coercion, threat, undue influence, thus it was
Learned trial court critically examined the Power of Attorney and
came to the conclusion that the same was executed on 31.12.2001, was notarised
on 5.6.2001, and the stamp papers were purchased on 18.4.2002, which gives rise
to suspicion with regard to genuineness and correctness of Power of Attorney.
Ultimately, it held that the said Power of Attorney is a fictitious document.
the strength of it, complaint could not be filed. As regards resolution of the
company passed on 31.12.2001 was concerned, it was held that complainant failed
to file the same, while he was in the witness box.
the company faced financial crisis and has since been closed with effect from
21.1.1993 under the orders of BIFR.
Ultimately, after appreciating oral and documentary evidence
available on record, the following order came to be passed by Additional Chief
Metropolitan Magistrate, Mumbai.
S.L.P.(Crl.)No.6204 of 2008 "The accused No.1 Mr. Das John Peter and
accused No.2 Ms. Grace Peter are hereby acquitted for the offence punishable
u/s.630 of the Companies
bail bonds, if any, stands cancelled."
Feeling aggrieved thereof, the appellant filed an Application
before the learned Single Judge of the High - 6 - Court seeking leave to file
appeal, against the order of acquittal of the accused. Unfortunately, the
learned Single Judge did not examine the matter in proper perspective and fell
into grave error, in refusing to grant leave and rejected the appellant's
application, for prosecution of the accused under Section 630 of the Act.
Feeling aggrieved thereof, this appeal has been preferred by the
We have accordingly heard Mr. Altaf Ahmed learned Senior Counsel
for the appellant, Mr. Sanjay Kharde for respondent No.1 and 2 and Ms. Asha
Gopalan Nair, for respondent No. 3-State of Maharashtra at length.
At the outset, we inquired from learned counsel for the accused,
whether he would be ready and willing to vacate the premises, provided
reasonable and sufficient time is granted to them but learned counsel
vehemently opposed any such suggestion and contended that the complaint has
Crl.A. @ S.L.P.(Crl.)No.6204 of 2008 rightly been dismissed on technical
grounds which went to the root of the matter, therefore no interference is
an intention to satisfy ourselves with regard to the correctness, genuineness
and authenticity of the resolution dated 31.12.2001 passed by appellant company
in favour of Mr. V.S. Parthasarthy and the Power of Attorney - 7 - of the even
date, we requested the appellant to produce the originals for our perusal. They
have produced the same before us. We have critically and with microscopic eye
examined the same. After doing so, we do not find either of the two documents
can be termed as fictitious or manufactured documents so as to oust the
appellant from the arena of justice.
No doubt, it is true that Power of Attorney was executed on
31.12.2001, but has been scribed on a stamp paper purchased on 18.4.2002. But
it has been notarised on 5.6.2002 and not on 5.6.2001 as has been noted by the
trial court. The Rubber stamp seal put by the notary clearly depicts it as
Thus, after going through the same, it leaves no shadow of doubt
in our mind that the same are genuine and duly authorised Mr. V.S. Parthasarthy
to file and prosecute the complaint against the accused. We had also passed on
Crl.A. @ S.L.P.(Crl.)No.6204 of 2008 the originals to the learned counsel for
the respondent- accused to satisfy himself but still, after going through the
same he persisted in his arguments tooth and nail that the date of Power
Attorney in fact is 5.6.2001 and not 5.6.2002. However, we are unable to agree
to the argument as advanced by the learned counsel for the accused as he is
trying to stretch it beyond our comprehension.
Admittedly, neither the Trial Court nor the High Court have gone
into the merits of the matter. Thus with an intention to do complete justice to
the parties, we have heard the counsel for the parties at length and gone
through the merits of this appeal.
It is not in dispute that accused No. 1 was appointed as a
caretaker to look after the flat of the appellant/company at 'Kamal Mahal'
Co-operative Housing Society Ltd., Carmichael Road, Bombay 400 026 owned and
possessed by the Company. It is further not in dispute that accused No. 1 had
retired from the company w.e.f. 6.3.1992. At the time of entering into service,
respondent No. 1 had entered into agreement with the company on 22.9.1980,
which specifically granted permission to the company to revoke the licence, of
the servant quarter at any time and to take possession. It Crl.A. @
S.L.P.(Crl.)No.6204 of 2008 is further not in dispute that on 5.1.2000 accused
No.1 wrote a letter to the Chairman of the Company specifically and
categorically agreeing to vacate the servant quarter by 31.1.2000. However, he
did not deem it fit and proper to honour his own commitment rather has defied
it on various grounds. To appreciate the arguments as advanced by learned
senior counsel Shri Altaf Ahmed for the appellant, it is necessary to examine
the relevant provisions of the Act under which, the company's complaint was
Section 630 of the Act reads as under:
Penalty for wrongful withholding of property property.- (1) If any officer or
employee of a company.- (a) wrongfully obtains possession of any property of a
company; or (b) having any such property in his possession, wrongfully
withholds it or knowingly applies it to purposes other than those expressed or
directed in the articles and authorised by this Act, he shall, on the complaint
of the company or any creditor or contributory thereof, be punishable with fine
which may extend to ten thousand rupees.
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 two years."
A reading of the aforesaid provision makes it clear that Crl.A. @
S.L.P.(Crl.)No.6204 of 2008 a criminal complaint seeking possession of the
servant quarter at the instance of company against the accused was maintainable
and in our opinion cognizance thereof was rightly taken by the Magistrate but
committed a grave error in rejecting it on technical grounds, instead of
deciding it on merits.
Learned counsel for appellant has also placed reliance on Section
621 of the Act, dealing with offences against the Act to be cognizable only on
complaint by Registrar, share holder or government. To appreciate the arguments
in - 10 - this regard, the said Section 621 of the Act is reproduced
Offences against Act to be cognizable only on complaint by Registrar,
shareholder or Government.
court shall take cognizance of any offence against this Act, which is alleged
to have been committed by any company or any officer thereof, except on the
complaint in writing of the Registrar, or of a shareholder of a company, or of
a person authorised by the Central Government in that behalf:
that nothing in this sub-section shall apply to a prosecution by a company of
any of its officers:
further that the court may take cognizance of offence relating to issue and
transfer of securities and non-payment of dividend on a complaint in writing by
a person authorised by the Securities Exchange Board of India.
Notwithstanding anything contained in the Crl.A. @ S.L.P.(Crl.)No.6204 of 2008
Code of Criminal Procedure 1898 (5 of 1898), where the complainant under
sub-section (1) is the Registrar or a person authorised by the Central
Government, the personal attendance of the complainant before the Court trying
the offence shall not be necessary unless the Court for the reasons to be
recorded in writing requires his personal attendance at the trial.
(1) shall not apply to any action taken by the liquidator of a company in
respect of any offence alleged to have been committed in respect of any of the
matters included in Part VII (sections 425 to 560) or in any other provisions
of this Act relating to the winding up of the companies.
liquidator of a company shall not be deemed to be an officer of the company,
within the meaning of sub-section (1)."
However, it is not necessary to examine the applicability of the
aforesaid Section 621 of the Act to the present case as it appears to be
doubtful to categorise accused No. 1, who was admittedly working as caretaker,
as an officer of the company. Thus, we deem it fit and proper to leave the said
question open at this stage.
We have carefully examined the originals of the resolution dated
31.12.2001 as also Power of Attorney of the even date executed in favour of Mr.
V.S. Parthasarthy and the irresistible conclusion is that the same are genuine
and do not come under the cloud of suspicion at all.
That being so, in the light of the admitted position Crl.A. @
S.L.P.(Crl.)No.6204 of 2008 that accused No. 1 retired in the year 1992 and has
also given an undertaking to the Company as far as back as 5.1.2000
categorically admitting and agreeing to vacate the premises on or before
31.1.2000, it was incumbent on his part to honour the same.
The letter of the accused No. 1 dated 05.01.2000 is reproduced
herein below:- "In regard to the above subject I the undersigned would be
grateful to you if you would give me one month time till January 31st 2000 to
vacate the premises that was given to me while I was in service with your
Even after taking into consideration all the defences taken by
accused, their eviction from the servant quarter - 12 - is inevitable. Since he
has committed default of his own promise, we have no other choice or option but
to direct the accused persons to vacate the premises by or before 1 st October,
2010 and to hand over its peaceful vacant possession to the Company.
We have done so exercising the powers conferred on us by virtue of
provisions of Article 142 of the Constitution which cast a duty on us to do
complete justice between the parties.
It is clear from the impugned orders that there is manifest
illegality in the same and have resulted in Crl.A. @ S.L.P.(Crl.)No.6204 of
2008 palpable injustice to the Appellant/Company curable at this stage under
Article 142 of the Constitution as the aforesaid powers are inherent on this
Court as guardian of the Constitution.
According to us, no useful purpose would be served even if the
matter is remitted to Magistrate for trial on merits. We hold so because equity
also does not swing in favour of the accused, who have displayed adamant and
From the date of retirement of accused No. 1 till date, more than
18 years have passed by and he has used the servant quarter without having any
right to do so. No further mercy or sympathy can be shown to such an accused.
Thus, looking to the matter from all angles we are of - 13 - the
considered opinion that the order passed by Metropolitan Magistrate as also by
the High Court cannot be sustained in law. Same are hereby set aside and quashed.
This we have to do to give quietus to the litigation which had commenced long
Appellant's complaint filed under section 630 of the Act is hereby
allowed and accused is granted time to vacate the servant quarter as mentioned
hereinabove on or before 1.10.2010 and to hand over its peaceful and vacant
possession to the appellant company. In default thereof Crl.A. @
S.L.P.(Crl.)No.6204 of 2008 accused shall have to suffer imprisonment for a
term of one year and fine of Rs. 10,000/-. In default of payment of fine, the
accused shall suffer further imprisonment of one month.
We hope and trust at least good sense shall prevail on the accused
and instead of running the risk of being sent to jail, they would abide by the
first part of the order and do the needful. If the accused persons fail to do
so then the appellant shall be entitled to take police help to get our order
Appeal stands allowed accordingly.
......................J. [DALVEER BHANDARI]