Delhi District Court
Bses Yamuna Power Ltd. vs Gaya Prasad on 5 January, 2013
IN THE COURT OF SH. GORAKH NATH PANDEY
ADDL. CHIEF METROPOLITAN MAGISTRATE (Spl. Acts) CENTRAL
TIS HAZARI COURTS, DELHI
BSES Yamuna Power Ltd. vs Gaya Prasad
U/s 630 of Companies Act, 1956
CC No.366/3/10
JUDGEMENT
(a) Serial no. of the case : 02401R0449292006
(b) Date of commission of offence: On/after 01.11.01 continuously
(c)Name of complainant : BSES Yamuna Power Ltd.
(formerly known as DVB)
having its registered office at
Shakti Kiran Building, KKD, Delhi
(d) Name, parentage, residence: Gaya Prasad
r/o H55, TypeI, BlockH
Tripolia Colony, Delhi
(e) Offence complained of/ proved : U/s 630 of Companies Act
(f) Plea of accused : Pleaded not guilty.
(g) Final order : Convicted
(h) Date of such order : 05.01.13 Date of Institution : 22.05.06 Date of Reservation of Judgment: 05.01.13 Date of Pronouncement of Judgment: 05.01.13 Brief statement of the reasons for the decision:
1. Brief and relevant facts as stated in the complaint are as below: As contended, accused Gaya Prasad was an employee of Erstwhile Delhi Vidyut Board, which was subsequently divided into different distribution companies and the present complainant BSES Yamuna Delhi Power Limited took over one of these distribution company through notification No.F11/99/2001 Power/PFIII 2828 dated 13.11.01 by the Dy. Secretary BSES Yamuna Power Ltd. vs Gaya Prasad 1 of 12 (Power), Govt. of NCT of Delhi. The erstwhile DESU/DVB was unbundled on 30.06.02 and the complainant company came into existence on 01.07.02. Besides taking over assets and liabilities, the present complainant also took over the employees of Erstwhile Delhi Vidyut Board. It is alleged that accused was alloted Qr. No.H55, TypeI, BlockH, Tripolia Colony, Delhi, by erstwhile DVB, by virtue of his employment. The accused was alloted the quarter on the conditions that he shall retain the said quarter till he remains in the services of the company. Accused retired from the services of the complainant company w.e.f 28.02.01 on attaining the age of superannuation but failed to vacate the quarter in question within stipulated period of four months after retirement/cessation of employment and has been residing in the said quarter unauthorizedly since 01.11.01. A legal notice was issued to the accused for vacation of the aforesaid quarter as well as to pay or deposit the licence fees/damages but the accused failed to do so and he is unlawfully occupying and withholding the said quarter. Hence, the present complaint u/s 630 of Companies Act is filed by the complainant against the accused.
2. The accused was summoned for the alleged offence u/s 630 of the Companies Act and a notice for the said offence was given to the accused in terms of section 251 Cr.P.C., to which he pleaded not guilty and claimed trial.
3. In order to substantiate its allegation, the complainant examined one Mr. Pradeep Kumar Saxena, the then Legal Assistant as PW1.
PW1 reiterated the facts of the complaint and produced the relevant BSES Yamuna Power Ltd. vs Gaya Prasad 2 of 12 documents. PW1 deposed that he is duly authorized by the complainant company to file/institute and prosecute the complaint and to depose in the present case vide authorization letter Ex.CW1/B. He also proved on record certificate of incorporation Ex.CW1/A and deposed that assets of DVB and the properties situated at Tripolia stood transferred to the present complainant by virtue of notification No.F11/99/2001 Power/PFIII 2828 dated 13.11.01 Ex.CW1/C. PW1 further deposed that accused was allotted the said quarter on licence basis during the course of his employment. The witness deposed that accused retired from the services of the company on 28.02.01 but did not vacate the quarter. The witness also proved on record the notice of eviction Ex.CW1/E and Ex.CW1/F, its reply Ex.PW1/B, possession letter Ex. PW1/A and complaint Ex.PW1/C and stated that accused is still withholding the aforesaid quarter despite cessation of his service.
4. Statement of accused was recorded u/s 313 Cr.P.C whereby the accused has admitted that he was employee of erstwhile DVB. Accused also admitted that quarter in question was allotted to him on licence basis and possession was taken by him vide possession letter Ex. PW1/A. Accused also admitted that the complainant company stepped into the shoes of DVB by virtue of notification/document Ex.CW1/C and he sent reply Ex. PW1/B to the vacation notice Ex.CW1/F. Accused did not deny cessation of his service from the company.
5. In support of his claim contentions, accused examined one Mr. B.N. Sharma, BSES Yamuna Power Ltd. vs Gaya Prasad 3 of 12 the President of Welfare Association of the residents of Tripolia Colony, as DW1.
DW1 B.N. Sharma, deposed that quarters situated at Tripolia Colony stood transferred in the name of respective occupants under 'Low Income Housing Scheme' and relied upon the documents Ex. DW1/A and Ex. DW1.B. The document Ex.DW1/A appears to be acknowledgment/reply to the representation made by DW1 to the Chairman, DVB, regarding transfer of ownership of houses built by DESU/DVB under the Low Income Housing Scheme and DW1/B is the forwarding letter of the representation made by the DW1 to the Office of the Minister Transport, Tourism & Power, Govt. of NCT of Delhi, about the notice to vacate the houses occupied by retired senior citizens of DVB in Tripolia Colony.
6. I have heard the learned Counsel for complainant as well as accused and perused the records. I have also gone through the written arguments filed on behalf of complainant as well as accused and considered the relevant provisions of law.
7. Section 630 of the Companies Act, 1956 provides as under: "(1) If any officer of 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 expressed or directed in the articles and authorised by this Act, He shall, on the complaint of the company or any creditors or contributory thereof, be punishable with fine which may extend to [ten 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 BSES Yamuna Power Ltd. vs Gaya Prasad 4 of 12 wrongfully obtained or wrongfully withheld or knowingly misapplied, or in default, to suffer imprisonment for a term which may extend to two years."
8. It is settled law that the scope of inquiry in a proceedings u/s 630 of Companies Act, 1956 is extremely restricted in law and the case is to be confined within those narrow ambit's without permitting any delay. The provision contained in Section 630 has been purposely enacted by the legislature with the object of providing a summary procedure for retrieving the property of the company. It is the duty of the Court to place a broad and liberal construction on the provisions in furtherance of the object and purpose of the legislation which would suppress the mischief and advance the remedy. It was held in "1989 (4) SC 514, Atul Mathur vs Atul Kalra and Another" that the purpose of enacting Section 630 is to provide speedy relief to a company when its property is wrongfully obtained or wrongfully withheld by an employee or an exemployee.
9. While dealing with the case U/s 630 of Companies Act, this court is guided as law laid down by the Hon'ble Bombay High Court in "1993 CRI. L.J. 2791 "
K.G.K. Nair v. P.C. Juneja".
"The provisions of S.630 are intended to provide speedy and efficacious redress in cases where company's property is wrongfully withheld and therefore the following guidelines are required to be observed:
1. That the complaints be taken up and disposed of on a priority basis, the accent being on the avoidance of any unwarranted delay.
2. That the trial Courts should address themselves to the fact that the scope of the enquiry in a proceeding under Section 630 is extremely restricted in law and, consequently, the parties be confined within those narrow ambits without being permitted to dilate or protract the proceeding through extraneous avenues.
3. That no frivolous application for adjournment, stay of proceedings, etc., should be permitted by the trial Courts because the history of those BSES Yamuna Power Ltd. vs Gaya Prasad 5 of 12 proceedings indicate that each of such states is responsible for further litigation and years of delay. The pendency of other civil proceedings is no bar to the decision of an application under S. 630 which fact should be taken cognizance of in such situations.
4. That the appeal, i.e., Court of Session, in the first instance, must judiciously scrutinize and vigorously examine the revision applications and appeal before granting stay orders.
5. That applications for discharge on frivolous and untenable pleas are required to be speedily and effectively disposed of and are not to be used as handles for protracting the litigation".
In the case of "S.K. Sarma v. Mahesh Kumar Verma, AIR 2002 SC 3294 = 2002 AIR SCW 3827" the case pertained to Section 138 of Railways Act which is somewhat similar to section 630 of the Companies Act and which provides a procedure for summary delivery to railway administration, of property, detained by a railway servant. It was observed as follows:
"The object of the aforesaid Section is to provide speedy summary procedure for taking back the railway property detained by the railway servant or his legal representative. Properties include not only dwelling house, office or other building but also papers and any other matters. This would mean that the Section embraces in its sphere all unlawful detention of any railway property by the railway servant............The word 'discharge' used in context is of widest amplitude and would include cessation of relationship of employer and employee, may be retirement, resignation, dismissal or removal. This Court in "Union of India v. B.N. Prasad [(1978) 2 SCC 462]" considered Section 138 and held that a close perusal of the section clearly reveals that the provisions has widest amplitude and takes within its fold not only a railway servant but even a contractor who is engaged for performing services to the railway, and the termination of his contract by the Railway amounts to his discharge, as mentioned in Section 138. The Court also observed that the said provision is in public interest and must be construed liberally, broadly and meaningfully so as to advance the object sought to be achieved by Railways Act........"
10.It is relevant to note the essential ingredients to prove the offence u/s 630 of Companies Act, which are mentioned as below:
(a) Incorporation of complainant company under Companies Act;
(b) Ownership of complainant company of the aforesaid flat;
(c) That the complainant company is the licensor of flat in question BSES Yamuna Power Ltd. vs Gaya Prasad 6 of 12 and there exists/existed the relationship of employer and employee between the complainant company and accused;
(d) That the flat in question was allotted on licence basis;
(e) That the accused ceased to be employee of the complainant company and he is wrongfully withholding the flat in question after cessation of service.
11.PW1 has deposed that the complainant company is incorporated under the Companies Act and proved on record Incorporation Certificate as Ex.CW1/A. Accused denied this fact. However, it is clear from the Incorporation Certificate Ex.CW1/A that the complainant company is incorporated under the Companies.
12.Learned counsel for accused argued that present complaint is not maintainable being not filed by the competent person. It is further argued that complainant is not the owner of the quarter in question nor employer of accused. It is argued that the quarter in question is covered under BPL Scheme and this court has no jurisdiction. Learned defence counsel argued that complainant has no locus standi to file the present complaint, the power of attorney and resolution in favour of the complainant is not proved in accordance with law and it does not comply with the provisions of Power of Attorney Act. The persons who delegated his power to the alleged attorney did not file his power to delegate. It is also argued that the resolution regarding power of attorney in favour of complainant has not been proved.
Perusal of power of attorney shows that it has been perfectly and legally notarized and it fulfills all the ingredients of section 85 of Indian Evidence Act. Section 85 of the Indian Evidence Act contains that once there is a duly BSES Yamuna Power Ltd. vs Gaya Prasad 7 of 12 notarized power of attorney then it shall be presumed to be true unless the contrary is proved. Accused has not produced any thing to disprove the power of attorney. This court is supported with the law laid down by the Hon'ble Supreme Court in "AIR 1971, SC 761, Jugraj Singh vs Jaswant Singh".
This court is further supported with the case law "AIR, 1982 Delhi 4897, Citibank N.A., New Delhi vs Juggilal Kamlapat Jute Mills ©. Ltd." in which it has been held that execution of power of attorney by a Bank's Executive Officer and Cashier delegating certain powers to one employee and documents bearing Bank's seal and attested by Notary Public raises presumption that power of attorney is executed by the bank. Word "person" in section 85 includes legal person. It is further held by the Hon'ble High Court in "AIR 1981 Delhi 222" and "AIR 1972 Allahabad 219" that a power of attorney along with verifications are to be presumed to be true u/s 85 of Evidence Act. This court is further supported with the case law laid down by the Hon'ble High Court in "AIR 2007 Delhi 147, Kamla Rani and Ors vs M/s Texmaco" which was a case of the present complainant on the same facts. It was contended by the employee before Hon'ble High Court that eviction case was not filed by a properly authorized person and Hon'ble High Court held that: ...Once a document is authenticated by a notary public, it will be presumed that the document was duly executed and was in order. As observed in AIR 1984 (363( (sic) M/s E.C. and E.Co. Ltd. v. M/s J. E. Works, if two conditions are satisfied, firstly the power of attorney being executed before a notary public and secondly it being authenticated by a notary public, a presumption would arise under section 85 about the executant of the power of attorney. ...Decision of the Hon'ble Supreme Court reported as "AIR 1997 SC 3 Union of India vs Gresham Kumar" is additionally relied upon by me. The said decision states that where a suit has been filed on behalf of a corporate BSES Yamuna Power Ltd. vs Gaya Prasad 8 of 12 body and is duly prosecuted by the person who had filed the suit, a presumption would arise that the person concerned was authorized to do so".
13.In his statement PW1 has deposed that BSES Yamuna Power Ltd, took over the erstwhile DVB in the trans Yamuna and Central East District and the assets of DVB by virtue of notification No.F11/99/2001 Power/PFIII 2828 dated 13.11.01 Ex.CW1/C, besides taking over assets and liabilities, the present complainant also took over the employees of Erstwhile Delhi Vidyut Board including accused. The accused admitted the same in his statement recorded u/s 313 Cr.P.C. However, accused has strongly relied on the plea that entire colony including the flat in question was given to the respondent/accused due to result of a 1954 scheme "Low Income Group". It is argued that objects of the said scheme was to provide shelter to the persons who do not have/owned any home and whose income does not exceed to Rs. 6000/ per annum at that time. The flat in question was constructed under the said 1954 Scheme, the house so constructed constitutes an entity distinct from the other staff quarters constructed by the Undertakings and its successor DVB. Accused has also vehemently relied upon the document Ex.DW1/A and Ex. DW1/B. In rebuttal learned counsel for complainant denied the plea of the accused and and relied upon the judgment reported as "AIR 1993 Supreme Court 1254". Relevant portion of the judgment is reproduced below: Constitution of India, Arts. 226, 39 - Mandamus - Allotment of quarters to low income group employees of a local body - No resolution passed by local body to sell quarters to such employees - Employees having no legal right under housing scheme - No mandamus can be issued on ground that welfare stated should provide house to every citizen specially BSES Yamuna Power Ltd. vs Gaya Prasad 9 of 12 of low income group.
Housing Scheme - Allotment of quarters to low income group employees - Cannot be demanded as of right from welfare state.
14.Document Ex. DW1/A and Ex. DW1/B mentioned the filing of representation by DW1 regarding transfer of ownership of houses built by DESU/DVB under the Low Income Housing Scheme and about the notice to vacate the houses occupied by retired senior citizens of DVB in Tripolia Colony. Merely by filing of representation accused or DW1 cannot claim legal right to have ownership transferred to them of such quarters under low income housing scheme of 1954 when there was no resolution passed by the Undertaking to sell such quarters to them and a mandamus cannot be issued on ground that welfare state may provide house to every citizen and specially to the persons belonging to low income group. Accused has not filed any document on record whereby any promise was held out by the complainant or erstwhile DVB to the existing or exemployee including accused that ownership will be transferred to them. The judgment (supra) cited by the learned counsel for complainant appears to be applicable to the peculiar facts and circumstances of the present case. Relevant portion of judgment is reproduced as under: "Where the employees of Delhi Electricity Supply Undertaking, a local body were allotted the quarters constructed by the Undertaking on loan approved by the Central Gov., they cannot claim legal right to have ownership transferred to them of such quarters under low income housing scheme of 1954 when there was no resolution passed by the Undertaking to sell such quarters to them and a mandamus cannot be issued on ground that welfare state may provide house to every citizen and specially the persons belonging to low income group. In such case, the fact that a resolution was passed by the Municipal Corporation to sell the quarters in respect of its own employees cannot be of any help to employees of the said undertaking by applying the principle of equality when their employer was different. It was more so when claimants were either employees retired from BSES Yamuna Power Ltd. vs Gaya Prasad 10 of 12 service or legal representatives of the erstwhile employees and it cannot be denied that there is a great dearth of housing accommodation in Delhi and large employees of said undertaking who are already in service are standing in queue for allotment of residential quarters".
The accused failed to show any document regarding transfer of quarter to the accused and there is nothing on record except bald averments in this respect. Thus, in view of the aforesaid discussions it is held that the complainant became owner of the quarter in question by virtue of notification Ex. CW1/C. Further accused even failed to show any record that amount was paid by him towards scheme from salary for flat.
The complainant was required to prove on record that quarter in question was allotted to the accused on licence basis. PW1 has deposed that the accused was allotted quarter in question by virtue of his employment vide possession letter Ex.PW1/A which bears signature of accused. Accused has also admitted this fact in his statement. Thus, relation of employer and employee also stands proved and it is held that accused is the licensee and earlier DVB and subsequently, the complainant company is the licensor by virtue of notification Ex.CW1/C.
15.Now let us examine whether complainant company has established that accused is wrongfully withholding the quarter in question. PW1 specifically deposed that quarter in question was allotted to accused by virtue of his employment and he has to retain the same so long as he remains in the service of the complainant company. This fact has not been denied by the accused in his statement. It is not disputed that accused retired from the BSES Yamuna Power Ltd. vs Gaya Prasad 11 of 12 service on 28.02.01. Thus, after cessation of his service accused was to vacate and hand over the quarter to the complainant company but he failed to do so. Accused did not deny that he is still in possession of the quarter in question. Since, accused did not vacate and hand over the possession of the quarter in question after cessation of his service, it is held that accused is wrongfully withholding the aforesaid quarter after cessation of his service.
16.Thus, in view of the aforesaid discussions, it is held that complainant has proved that the accused was allotted the aforesaid quarter by virtue of his employment and he was liable to vacate the quarter after his retirement, however, even after expiry of extension period, accused failed to vacate and hand over the possession of the quarter in dispute to the complainant. As such, it is held that the accused has been wrongfully withholding the quarter of the complainant company after his retirement and subsequently after expiry of extension period. Thus, it is held that complainant has been successful in proving its case against the accused beyond reasonable doubt. Accordingly, accused is held guilty and convicted for the offence u/s 630 of The Companies Act 1956.
(GORAKH NATH PANDEY) ACMM(SPECIAL) ACTS, CENTRAL TIS HAZARI COURTS DELHI Announced in open court on 05.01.13 BSES Yamuna Power Ltd. vs Gaya Prasad 12 of 12