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TMI Blog1997 (11) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... o the company at the time when they were its employees, and, though they were required to vacate the premises at the time of their superannuation on 9-1-1983, 8-6-1983, 25-5-1983 and 24-5-1983 respectively, they continued to occupy the premises unauthorisedly and were wrongfully withholding the property of the company. The respondent No. 2 ex-employees made applications in the Criminal Cases - Exhibits 5 and 7 contending in application Ex. 5 that since the complaints were filed more than one year after their retirement and since the offence under section 630(1) was punishable only with fine, they were barred by limitation under section 468 of the Code and also contending in the application Ex. 7 that the provisions of section 630 were not applicable to the facts of the case and therefore, the Court had no jurisdiction to entertain the complaints under that provision. As regards jurisdiction, the learned Magistrate held in favour of the complainant and therefore, we are not concerned with that aspect of the matter in these Revision Applications, which are directed only against the learned Judicial Magistrate s order passed below Ex. 5 dismissing the complaints on the ground that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by wrongfully withholding the property of the company. Under section 472 of the Code in the case of a continuing offence, a fresh period of limitation would begin to run at every moment of the time during which the offence continues. The learned Magistrate has overlooked this provision. In view of this provision, it cannot be said that these complaints were filed beyond the period of limitation. The complaints could not, therefore, have been dismissed on the ground that they were time-barred. Refusal to vacate company s quarters after retirement from company s service constitutes a continuing offence within the meaning of section 472 of the Code, as held by the Supreme Court in Gokak Patel Vokhart Ltd. v. Dundayya Gurushiddaiah Hiremath 1991 (2) SCC 141. Therefore, the learned Magistrate was not right in dismissing the complaint on the ground that they were barred by limitation and the complaints will have to be heard on merits. 4. The other question which arises for our consideration is regarding the constitutional validity of the provisions of section 630. When these matters were before the learned single Judge, an affidavit was filed by these ex-employees, in which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e category of service tenants. It is submitted that the relationship of landlord and tenant can simultaneously exist between the employer and the employee and therefore, in context of the employees occupying the premises of the employer on payment of rent or otherwise, the matter would fall within the legislative competence of the State Legislature alone under Entry 18 of List II, and that would not be the subject-matter of any law relating to companies. 5. Section 630 which is being challenged 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act. Section 630, is, therefore, within the legislative competence of the Parliament and it squarely falls within the law making powers of the Parliament reflected in Entries 43 and 44 of the Union List to the Seventh Schedule of the Constitution. There is, there- fore, no substance in the challenge against the said provision on the ground of lack of legislative competence of the Parliament in enacting the said provisions. The Bombay High Court in Krishan Avtar Bahadur v. Col Irwin Extross [1986] 59 Comp. Cas. 417, had an occasion to consider the legislative competence of Parliament for enacting section 630 and for the reasons, with which we respectfully agree, rejected the contention that the provi-sions of section 630 so far as they relate to immovable property are ultra vires the legislative competence of Parliament. It was held that as per Entry 93 of the Union List, Parliament can legislate in respect of offences against laws with respect to any of the matters in the Union List. It was also held that the powers of the Parliament to legislate in respect of a company relating to immovable property covered by Entries 43 and 44, were in no way curtailed by Entry 18 appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the premises and would prevent dishonesty on the part of the ex-employees who were required to return the premises to the company. In interpreting a beneficent provision the Court must be forever alive to the principle that it is the duty of the Court to defend the law from clever evasion and defeat and prevent perpetration of a legal fraud, as held by the Supreme Court in context of section 630 in the case of Smt. Abhilash Vinodkumar Jain ( supra ) . We, therefore, do not agree with the contentions of the ex-employees that the provisions of section 630 are discriminatory or that they deprive them of their right to life under article 21 without following the procedure established by law. The challenge against the validity of section 630, therefore, fails. Under the above circumstances, we allow these Revision Applications and set aside the impugned orders of the learned Magistrate dismissing the complaints on the ground that they are barred by limitation and direct the trial Court to proceed with the hearing of these cases in accordance with law and to complete the proceedings preferably within six months from the date of the receipt of this order. At this stage, the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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