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TMI Blog1984 (8) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... d Sessions Judge. The said application was directed to be kept along with the write petition. 4. At the outset, the learned counsel for the accused has contended that a write petition under art. 227 of the Constitution against the orders of acquittal cannot be maintained in view of the remedy by way of appeal against the said order of acquittal being provided for under s. 378(4) of the Criminal Procedure Code. It was also contended by the learned counsel that in view of the specific provisions of s. 401(3) of the Criminal an order of acquittal into an order of conviction, the petition under, s. 482 of the Criminal Procedure Code, involving inherent powers of this court, also cannot be maintained. The learned counsel for the complainant company had no satisfactory answer to the said contentions. In; may opinion, in view of the said provisions of the Criminal Procedure Code, neither the writ petition under art, 227 of the Constitution nor an application under s. 482 of Criminal Procedure Code involving inherent powers of this court was maintainable. The result, therefore, was that the rule granted in Write Petition No. 259 of 1984 would stand discharged. 5. Being aware of these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Esplanade Mansion, opposite Kala Ghoda, Bombay. Thereafter some time in July, 1973, the company through its director, one Mahendrakumar Gupta (since deceased), entered into an agreement termed as Paying Guest agreement in respect of Flats No. 6 in a building called 'Shirin', Colaba, Bombay, 400 005, with its owner, one R. L. Rodrigues (since deceased) for a period of 9 months from April 1, 1973 with an option to renew the same on the same terms and conditions for the same period. Another agreements of the same date for the use of fixtures and furniture was also executed between the parties simultaneously. It was not disputed that the accused has countersigned the said agreements and that the said agreements in terms permitted the company as a paying guest to allow the accused by his name to use and occupy to the said flat on purely paying guest basis. Accordingly the accused came to occupy the said premises. The Said agreement were thereafter renewed only twice one on September, 6, 1974, and again on April 1, 1975, for period of 9 months each, the period under the 2nd agreement dated April 1, 1975, expiring on December 31, 1975. Admittedly after the expiry of the said se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... standing that he should occupy the same till such time as he was in service of the company. He negatived the claim of the accused as being a tenant of the premises based on the letter dated April 9, 1973 (Ex. J), on the company's letter-head under the admitted signature of company's then director Mahendrakumar Gupta, inter alia, stating that the company had no right or claim on the said premises, on the ground that the said letter was forged as being subsequently written by stealing a bland letter-head of the company containing the signature of the company's said director. He also negatived the other contentions of the accused. In the result, the learned Magistrate convicted the accused of the charge under s. 630 of the Companies Act and sentenced him to pay fine of ₹ 500, in default on month's simple imprisonment. He also granted time till March 31, 1984, to the accused to vacate the premises and in default to suffer simple imprisonment for 6 months. 11. Against the said judgment and order of the learned Magistrate, the accused file an appeal to the Sessions Court, Bombay, being Criminal Appeal No. 463 of 1983. 12. The learned Sessions Judge mainly addr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t company and the accused or was require to leave its determination to the civil court. 14. Section 630 of the Companies Act, so far as is relevant under which the accused in the present case was charged provided as under : Section 630. - 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. 15. On a plain reading of the said section, particularly whereas a complaint thereunder could be also at the instance of a creditor or a contributory of the company. It appears that the Magistrate's jurisdiction thereunder would extent only to those cases where there was 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 particula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used has also based his claim as being a direct tenant of the Landlord in the premises and the company had no interest therein, on a letter dated April 9, 1973, Ex. (E), by the company to the accused admittedly on the letter-head of the companioned under the signature of the company's then director, Mahendrakumar Gupta (since deceased) stating, inter alia, that it was mutually agreed that as the employer, the company will not have any right and claim on the said flat No. 6 in any manner whatsoever. The accused had supported his claim by further correspondence between the landlord and the company wherein the company had, in reply to the Landlord's letter dated October 28, 1976 (Ex. 11), claiming compensation, stated that they were prepared to vacate the said flat. The company has alleged that the said letter was forged as being unsequently got typed by the accused after stealing from the company a bland letter-head under the signature of the company's director which some of the director used to keep. The learned Magistrate, accepting the said case of the complainant company, held the said letter must not be genuine. 17. I am not much concerned at this stage with the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereafter, the court held that court held that company had become a tenant in the premises. It was difficulty to see how a in such a result could ever come about. Further, even after holding that the company had become a tenant in the premises, the learned Magistrate continued to deal with the case on the basis that as a licensee the company had interest in the premises and the company's said property was being with held by the accuses to be liable under s. 630 of the Companies Act. This contention appears to have been based on the ignorance of the court about the difference between a lease and a licence. While it is well known that lease created interests in the property, by the very definition of a licence under s. 52 of the Indian Easements Act, 1882, the licence was a mere permission to occupy the premises and created no interest in the property. 20. The learned counsel for the company in support of his contention that, while acting under s. 630 of the Companies Act, the criminal courts could deal with the disputed questions of purely civil nature, has relied upon two decisions of this court, viz., (1) in the case of Suresh Venkatrao Nerlekar v. Sharanghdhar Pandurangh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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