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TMI Blog1997 (8) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... from 1-10-1994 and by that date, he should have vacated the flat in favour of the company but on his request, the company allowed him to use the said flat till 31-12-1994. Before the retirement, the company addressed a letter dated 12-9-1994 to him giving a detailed break-up of his dues from the company and asking him to confirm that he would be handing over the possession of the flat to the company by the end of December 1994 and he accepted and signed the letter as a token of confirmation. After the expiry of the month of December 1994, he did not vacate the flat. He was requested on several occasions by the company to vacate the flat, but he wrongfully failed and neglected to vacate the same. The company sent a lawyer's notice by a letter dated 3-4-1995 demanding delivery of the flat. In spite of receipt of that letter, the flat is being wrongfully withheld. Arun Kumar Durgaprasad has, accordingly, com-mitted an offence punishable under section 630 of the Act. 2. The learned Magistrate took cognizance on this complaint and the accused Arun Kumar Durgaprasad, on being summoned under section 630 appeared before the Court. 3. During the pendency of the complaint case, Arun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding before the Court of Chief Judicial Magistrate, Alipore. The petitioner challenged the legality of the said two orders on the grounds that substitution of the accused is a concept alien to the provisions of criminal law and jurispru-dence and that the petitioner No. 2 being a minor, could not be tried by an ordinary Court under the provisions of Juvenile Justice Act, 1986 and that the learned Magistrate acted illegally in allowing the complainant's prayer for substitution and in refusing to accept the petitioners' prayer for dropping the proceedings. 6. The petitioners subsequently filed a supplementary affidavit on 11-7-1997 pleading additional facts and grounds in support of the initial prayer for quashing of the proceeding and made an alternative prayer for stay of the impugned proceeding. The additional facts and circumstances pleaded in the supplementary affidavit may, in substance, be stated as follows. 7. Arun Kumar Durgaprasad was a professional tea planter and an acclaimed authority in quality control methods in the production of best quality tea. He was promoted to the post of senior executive in 1979 and was made director in the year 1984. He was finally prom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to remain in occupation of the flat. The company made over xerox copy of the title deed in respect of the flat to him to enable him to prepare the draft of the deed of sale, he was asked by the company to complete the formalities in connection with the execution of the deed of conveyance in respect of the flat. In the usual course, Arun Kumar would have retired in the year 2003 AD and he would not have accepted the premature retirement, had he had not been assured by the company that the flat would be sold to him at a price of Rs. 9,66,200. Unfortunately, the company tried to resile from its commitments. It showed reluctance to execute any deed of sale in favour of Arun Kumar Durgaprasad and finally in breach of commitments and the terms of agreement referred to above, the company threatened to invade his right to remain in the flat and to purchase the same. In such circumstances, he was constrained to file a civil suit being Title Suit No. 34 of 1995 before the Second Court of Assistant District Judge at Alipore against the company praying for a decree for specific performance of the agreement for sale of the flat concerned and also for a permanent injunction restraining the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till the disposal of the petition for temporary injunction filed in the civil suit and not quashing of the criminal proceed-ing. 9. Mr. Badal Roy with Mr. Jaymalya Bagchi appearing for the petitioners made the following points in support of the prayer for stay of the criminal proceeding as suggested above. 9.1 The right of Arun Kumar Durgaprasad, the predecessor in interest of the petitioners of the instant criminal revision case, to continue to occupy the concerned flat could not stand extinguished with the termination of his employment by reason of his voluntary retirement with effect from 1-10-1994 so as to give rise to an obligation to hand over the flat back to the company. His right to continue to be in possession of the flat with effect from 1-10-1994 was an independent right, backed by the agreement dated 10-10-1994, in terms of which the company agreed to sell the flat to him at a price of Rs. 9,66,000. Continuance of possession of the flat by Arun Kumar Durgaprasad with effect from 1-10-1994 was in part performance of that agreement and as such, was required to be protected till the agreement is specifically performed by the company. The company was bound under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Court by virtue of its order of interim injunction must be deemed to have justified the continuance of such wrongful possession and the prosecution against Arun Kumar Durgaprasad or for that matter, against the present petitioners would be incompetent in the face of such an injunction. In other words, the prosecution would not be maintainable so long the injunction would remain in force. Thus, in view of the facts and circum-stances enumerated above, it is urged on behalf of the petitioners that the criminal proceeding should be stayed till at least the disposal of the petitioners' prayer for temporary injunction in the civil suit. 10. Mr. Pradip Ghosh appearing for the company sought to refute the aforesaid contentions. It is contended that the title of the company in respect of the flat has not been questioned by the petitioners. There was no agreement by the company to sell the flat to Arun Kumar Durgaprasad at a price of Rs. 9,66,000 as alleged and the story of such an agreement has been falsely set up by the petitioners of their predecessor in interest in order to forestall the prosecution under section 630. Mere pendency of the suit or an ex parte ad interim injun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessor or to arrest any threatened invasion of such right or any injury which was likely to be suffered by them. It is urged on behalf of the company that it cannot be a fit and proper case for any stay of the criminal proceeding as prayed for on behalf of the petitioners. 11. A number of decisions were relied upon on behalf of the petitioners and the company in support of their respective contentions. 12. Section 630 reads as under: "Penalty for wrongful withholding of 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 one thousand rupees. (2) The 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the flat at 1, Merlin Park, Calcutta, as an incident of his employment, sometime in the year 1989. There was also no dispute that there was cessation of his employment by reason of his having taken voluntary retirement from the service with effect from 1-10-1994. Normally, with the cessation of the employment, the right of Arun Kumar Durgaprasad to occupy the flat would stand extinguished with effect from 1-10-1994. 16. The company's case is that it had gratuitously gave Arun Kumar Durgaprasad permission to continue to be in possession of the flat beyond 30-9-1994 till the expiry of December 1994, and that by reason of such permission the right of Arun Kumar Durgaprasad to continue in posses- sion of the flat stood extended till the expiry of December 1994 even after the cessation of his employment, so much so that the continuance of his possession of the flat became wrongful only with effect from 1-1-1995. The petitioners are the legal heirs and representatives of Arun Kumar Durgaprasad and whatever right, title and interest they are claiming in respect of the flat concerned is derived from Arun Kumar Durgaprasad by virtue of their inheritance. If the retention of the flat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. They have raised a controversy with regard to the permission that is alleged to have been accorded gratuitously by the company to Arun Kumar Durgaprasad to continue to reside within the flat during the period from 1-10-1994 to 31-12-1994. 18. The petitioners bank upon an agreement alleged to have been entered into by and between Arun Kumar Durgaprasad and the company on 10-6-1994. According to them by the said agreement, the company agreed to sell the flat to Arun Kumar Durgaprasad at the price of Rs. 9,66,000 at which the company had purchased that flat. Making the alleged agree- ment his sheet anchor, Arun Kumar Durgaprasad filed the civil suit against the company on 25-5-1995 when the company was already taking steps in launching the prosecution of Arun Kumar Durgaprasad under section 630. The fact remains that the company's complaint was finally filed on 31-5-1995. The company has denied the alleged agreement and the agreement forms the subject-matter of another factual controversy between the parties. 19. The continuance of possession by Arun Kumar Durgaprasad beyond 30-9-1994 is said to have been in part performance of the alleged agree-ment. Now, possession of imm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company, on the expiry of the period of alleged licence reckoned from the date of cessation of his employment, would not be rendered incompetent by reason of the subsistence of the alleged agreement dated 10-6-1994. According to the Supreme Court decision in the case of Smt. Abhilash Vinod Kumar Jain ( supra ) the expressions 'officer or employee' appearing in section 630 include his heirs after his death by deeming fiction. The petitioners are not claiming any independent right over the flat and are claiming the right through their predecessor-in-interest Arun Kumar Durgaprasad. As such, if continuance of possession of the flat by Arun Kumar Durgaprasad was wrongful beyond 31-12-1994, as alleged on behalf of the company, it would continue to be wrongful at the instance of his heirs and legal representa-tives as well even after his death on 7-1-1996. So, the alleged agreement dated 10-6-1994 between the company and Arun Kumar Durgaprasad would not make the continuance of possession by the present petitioners rightful. 22. The present petitioners would be able to acquire title to the flat by virtue of the alleged agreement only if the suit for specific performance of agreemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny person from instituting or prosecuting any proceeding in a criminal matter. 24.2 Reliance has been placed on behalf of the company in the case of Cotton Corpn. of India Ltd. v. United Industrial Bank Ltd. AIR 1983 SC 1272 wherein it has been held that an interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in a suit or proceeding. If this be the purpose to achieve which, power to grant temporary relief is conferred, it is inconceivable that where the final relief cannot be granted in the terms sought for because the statute bars granting such a relief ipso facto the temporary relief of the same nature cannot be granted. 24.3 Under sub-section (2) of section 630, the Magistrate trying the offence may direct delivery of any property of the company which is wrongfully withheld and the injunction granted by the Civil Court cannot, in the circumstances, operate as a bar to the Criminal Court directing delivery of the flat under section 630(2), if it is found to have been wrongfully withheld. 24.4 In the civil suit, the petitioners predecessor-in-interest sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up- til now the said application of the defendant-company and/or the plaintiff-petitioners' application for temporary injunction is yet to be disposed of by the Civil Court. 24.6 In view of my discussions above, it would necessarily follow that the order of injunction by itself cannot render the prosecution under section 630(1) incompetent as suggested by Mr. Bagchi. 25. There is thus really no good ground for quashing of the impugned criminal prosecution. 25.1 It is, therefore, time for us to determine as to whether there should at all be any stay of the criminal proceeding, as alternatively prayed for on behalf of the petitioners. 26. I now proceed to examine the decisions cited on behalf of the petitioners as well as the opposite party (company) on the question of stay. 27. In M.S. Sheriff v. State of Madras AIR 1954 SC 397, cited on behalf of the opposite party, two sets of proceedings were pending against the appellants in the Supreme Court. One set consisted of two civil suits for damages for wrongful confinement and the other consisted of two criminal prosecutions under section 344 of the Indian Penal Code (IPC) for wrongful confinement. It was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was contended that the movements of maize had been controlled by the provisions of the Essential Commodities Act, 1955 read with Northern Inter-Zonal Maize (Movement Control) Order, 1967 promulgated by the State Government on 3-5-1967. But the restric-tions on export imposed by that order were removed by the State of Haryana in October 1967. At Howrah, the railway authorities refused to deliver the same to the consignees on the ground that the export in question was illegal. The maize was seized by the police and it was subsequently forfeited. Thereafter the persons responsible for the export of the maize were prosecuted and the prosecutions were pending. One of the contentions raised before the Supreme Court was that the State of Haryana had not lifted the ban on export and further it had no power to lift the ban and as such the export was illegal and the railway authorities were competent to withhold the delivery of the goods. After elaborately hearing the arguments, the High Court rejected the writ petitions on the sole ground that in view of the pendency of the criminal proceedings before some Courts in the State of West Bengal, it is inappropriate for the High Court to pron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the matter, the Sessions Judge's order reversing the order of conviction was upheld by the High Court. It was argued on behalf of the petitioners that here also the dispute between the parties was with regard to the title to the flat concerned and that in view of the pendency of the civil suit and the operation of the ad interim injunction by the Civil Court, the dispute can be said to be a bona fide dispute of a purely civil nature and could be left to the Civil Court to determine and consequently, the criminal prosecution should be stayed till at least the Civil Court disposes of the temporary injunction matter. It was argued on behalf of the opposite party, on the other hand, that there is no dispute with regard to the title to the flat concerned because the flat is admittedly the property of the company and the question whether the petitioners' continuance of possession of the flat was wrongful or not was certainly a question which falls within the scope and ambit of the inquiry envisaged under section 630 and was well within the jurisdiction of the Magistrate to decide. On the contrary, the question whether the possession of the flat was wrongful or not would not aris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed at paragraph 21: "There are a large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrong doer in cases like arson, accidents, etc. It is an anathema to suppose that when a civil remedies at all for suing the wrong doer in cases like arson, accidents, etc., it is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import." 32. In Atul Mathur v . Atul Kalra [1989] 4 SCC 814, cited on behalf of both the parties, the company secured a flat at Bombay on a leave and licence basis for residential occupation by its employees. The leave and licence agreement was entered into on behalf of the company by the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the facts in Damodar Das Jain's case ( supra ) were very different and it was with reference to those facts that the High Court held that, a bona fide dispute existed between the parties therein. The Supreme Court laid down the principle that every dispute would not become a bona fide dispute merely because the company's claim to possession is refuted by its ex-employee and that the question as to when a dispute would amount to a bona fide dispute would depend upon the facts of each case. In view of the facts of that case, the Supreme Court was of the view that the first respondent had formulated a plan for clinging to his possession of the flat even after resigning his post and in accordance with that plan he had filed a suit in order to forestall the company from proceeding against him under section 630. The Supreme Court held that merely because the first respondent had filed a suit before tendering his resigna-tion, it can never be said that the Civil Court was in seisin of a bona fide dispute between the parties and as such the Criminal Court should have stayed its hands when the company filed a complaint under section 630. 33. In Texmaco Ltd. v. Arun K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under section 630 quashed on the ground that they had obtained injunction from the Civil Court for the maintenance of status quo. The Madras High Court dismissed the prayer of the petitioners and held that under section 630 the moment the employment ceases, the employee is no longer entitled to remain in possession of the premises allotted to him and that the withholding of the premises, after cessation of the employment, amounts to wrongful withholding punishable, an of- fence by the criminal court, besides his being required to vacate and hand over possession to the company which allotted the premises to him. 35. In Texmaco Ltd. v. Ram Dayal [1993] 78 Comp. Cas. 518 (Delhi) cited on behalf of the opposite party, on an application moved by the petitioner, the Magistrate directed that the proceedings under section 630 would conti- nue but the judgment would not be announced until the Court finds that the civil case filed by the accused is mala fide and not bona fide or till the Civil Court gives its final verdict. On a revision filed by the company against the stay order, the Delhi High Court held that the criminal proceedings could not be stayed merely because the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d requested that the flat occupied by him would be sold to him at the book value. The managing director of the company agreed in principle but stated that the matter was subject to modification and approval by the board of directors. The respondent, however, did not retire but continued in service. Some years later, he requested the managing director to arrange to have the sale of the flat to him at book value completed immediately. The managing director pointed out that since there had been a drastic change in real estate price, he could not put the matter up to the Board. In 1989, the respondent retired from service, but did not vacate the flat. He was informed that the offer to buy the flat at book value had been turned down by the board of directors, whereupon the respondent called upon the company to honour its commitment. Subsequently, the company, after calling upon the respondent to handover possession of the flat, instituted a complaint against the respondent under section 630. Thereafter, the respondent filed a suit against the company for specific performance of the agreement to sell the flat to him at book value. The company also filed a suit for vacant possession of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused had not come into possession through the company, but was having independent tenancy rights from the principal landlord. The Supreme Court held that the findings recorded by the criminal court stand superseded by the findings recorded by the civil court and in such view of the matter, the conviction was set aside. 39. In the Single Bench decision of our High Court Ashok Kumar Jaiswal v. State [1989] Cr. LR (Cal.) 310 which was cited on behalf of the petitioners, the accused petitioners made a prayer before the trying Magistrate for stay of a criminal case under section 409 of the Indian Penal Code ('IPC') till the disposal of a civil suit on the ground that if the criminal case is allowed to proceed, there will be miscarriage of justice and the interest of the petitioners will be jeopardised. The criminal case was for prosecution for an offence of criminal breach of trust under section 409 of the IPC in respect of 13 diesel engines and was instituted before filing of the civil suit which was for a declaration of title to the said 13 engines in respect of which the criminal breach of trust is alleged to have been committed. The Magistrate rejected the prayer for stay o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal proceedings is an eventuality envisaged by the law and is not a relevant consideration. A likelihood of embarrassment to the accused is, however, a relevant consideration. Public interest demands that the criminal justice should be swift and sure. This again is not a hard and fast rule. Special considerations obtaining in a particular case might make some other course more expedient and just. 41.1 The purpose of enacting section 630 is to provide speedy relief to a company when the property is wrongfully withheld. 41.2 Decisions of Civil Courts are binding on Criminal Courts but the converse is not true. 41.3 the Magistrate's jurisdiction under section 630 could extend only to those cases where there is either no dispute or, in any event, no bona fide dispute that the property involved was the property of the company. In cases where there is such a dispute involving complicated questions of title to the property. It would be purely of civil nature and the Civil Court would be the more appropriate forum for the purpose of adjudicating it and the Magistrate cannot and should not venture to determine the same in a summary proceeding as envisaged under section 630. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in force in favour of the petitioners and against the company will also be of no avail to them in withholding the possession of the flat. If Arun Kumar Durgaprasad was in wrongful possession of the flat after the expiry of December 1994 the present petitioner would be as much in wrongful possession of the flat in their capacity as heirs and legal representatives as their predecessor-in-interest. Mere pendency of a suit or operation of an ex parte ad interim injunction could not ipso facto make a dispute bona fide if the dispute is otherwise not so. When the suit is filed whether before or after the filing of the complaint under section 630 and the fact that an injunction has been granted may be relevant for considering whether a dispute is bona fide. But on a scrutiny of the particular dispute involved in the civil suit here, I cannot persuade myself to hold that it is a bona fide dispute which falls within the exclusive jurisdiction of the Civil Court and should be decided by the civil court and not by the criminal court. That apart, even taking the best view of the matter in favour of the petitioners, it is not understood how there can be any likelihood of any embarrass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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