1987 (1) TMI 397 - HC - Companies Law

Summary

Issues:
1. Interpretation of section 630 of the Companies Act regarding the applicability to movable and immovable property.
2. Determination of the period of limitation for the offense of wrongful possession of company quarters.
3. Analysis of the discretionary power of the appellate court under section 389 of the Criminal Procedure Code.

Interpretation of Section 630 of the Companies Act:
The judgment addressed the contention that section 630 of the Companies Act only applies to movable property, arguing that the words "deliver up" or "refund" pertain solely to movable assets. The court dismissed this argument, emphasizing that the term "property" in section 630 encompasses both movable and immovable assets. It was clarified that the phrase "deliver up" is applicable to immovable property as well, indicating the inclusion of immovable properties within the scope of the Companies Act.

Period of Limitation for Wrongful Possession:
Regarding the period of limitation for the offense of retaining possession of the company quarters post-retirement, the judgment highlighted that the offense of trespass is considered a continuing offense. It was explained that even after retirement, the petitioner's occupation of the quarters constituted trespass, which is a continuing offense under section 472 of the Criminal Procedure Code. The court emphasized that in the case of a continuing offense like trespass, a fresh period of limitation initiates with each moment the offense persists, distinguishing it from offenses committed once and for all.

Discretionary Power of the Appellate Court:
The judgment analyzed the discretionary power of the appellate court under section 389 of the Criminal Procedure Code. The petitioner contended that the word "may" in the provision should be construed as mandatory, necessitating the suspension of the order. However, the court disagreed, asserting that section 389 grants discretionary power to the appellate court, which must be exercised judiciously. It was noted that allowing the petitioner, who had retired and trespassed, to continue occupying the quarters would be rewarding trespass. Consequently, the Sessions Judge's decision to reject the application under section 389 was upheld, and the petition was dismissed for lacking merit.