Delhi District Court
Bombay Suburban Electric Supply ... vs . on 16 November, 2021
IN THE COURT OF SH. MANU VEDWAN
ADDL. CHIEF METROPOLITAN MAGISTRATE (Spl. Acts)
CENTRAL TIS HAZARI COURTS, DELHI
CC No. 4928/2017
Bombay Suburban Electric Supply Yamuna Power Limited
Vs.
Suresh Kumar Sharma
U/s 630 of Companies Act, 1956
JUDGMENT
(a) Name of complainant : Bombay Suburban Electric
Supply Yamuna Delhi Power
Limited
through its AR Sh. Sushil Kumar
having its registered office at
Shakti Kiran Building,
Karkardooma, Delhi32
(b) Name, parentage & : Suresh Kumar Sharma
address of accused R/o H.No.G26, TypeII,
Tripolia Colony
Delhi
(c) Offence complained : U/s 630 of The Companies Act 1956
/proved of (Sec. 452 of the Companies Act, 2013)
(d) Plea of accused : Pleaded not guilty.
(e) Final order : Convicted
(f) Date of such order : 16.11.2021
Date of Institution : 06.04.2017
Final arguments heard : 08.11.2021
Date of Judgment : 16.11.2021
BSES - Yamuna Delhi Power Limited Vs. Suresh Kumar Sharma 1 of 10
Brief statement of the reasons for the decision:
1. The complainant company, M/s. Bombay Suburban Electric Supply Yamuna Delhi Power Limited filed the present complaint u/s 630 of the Companies Act, 1956, against the accused Suresh Kumar Sharma. The complainant company had taken over the discharge of distribution of electricity from Indraprastha Power Generation Company Limited (hereinafter referred to as IPGCL), which was, subsequently, divided into different distribution companies and the present complainant Bombay Suburban Electric Supply Yamuna Delhi Power Limited took over one of these distribution company through notification number F11/99/2001 Power/PFIII 2828 dated 13.11.2001 by the Deputy Secretary (Power), Govt. of NCT of Delhi. Besides taking over assets and liabilities, the present complainant also took over the employees of, erstwhile, Indraprastha Power Generation Company Limited .
2. It is alleged in the complaint that accused was the employee of erstwhile Indraprastha Power Generation Company Limited and later on, he became the employee of Bombay Suburban Electric Supply Yamuna, Delhi, Power Limited. It is further alleged that accused was earlier in possession of C61/II, Tripolia Colony, Delhi which was changed to Quarter No.G26, TypeII, Tripolia Colony, Delhi, by virtue of his employment vide memorandum dated 27.02.2002 and possession was handed over to accused, vide writing dated 28.02.2002. Accused was entitled to possess and use the allotted flat, till, his employment with the Bombay Suburban Electric Supply, Yamuna, Delhi Power Limited. It is further alleged that accused got relieved from the services on 30.11.2009. But, still thereafter, accused kept on illegally occupying or self withholding the possession of the aforementioned flat, till the filing of the BSES - Yamuna Delhi Power Limited Vs. Suresh Kumar Sharma 2 of 10 present complaint, in blatant contravention of the terms of the allotment letter and various other provisions of law. Vide letters dated 11.12.2009 by IPGCL, and, thereafter, on 21.07.2010, by the complainant, accused was directed to hand over the vacant possession of the flat. But, he neither has replied the notice nor even comply. Now, the position is that as accused has unauthorizedly occupied the flat in question with effect from 31.12.2009. The accused failed to vacate the flat in question, and, thus, present case has been filed and proceeded against accused.
3. Complainant got examined Sh. Sushil Kumar as CW1 in presummoning evidence. He reiterated the facts of the complaint and produced the relevant documents. CW1 stated that the complainant company is duly incorporated under the Companies Act. The witness proved on record certificate of incorporation Ex.CW1/1 and deposed that Mr. Ramesh Narayanan, Chief Executive Officer was authorized to do all acts which are necessary for the running of business of the company vide Board Resolution passed on, 22.10.2019, which is Ex.CW1/2. CW1 also deposed that present complaint was filed by him, and he was duly authorized by the complainant company to file/institute and prosecute the complaint on behalf of complainant vide General Power of Attorney dated 05.10.2010 executed by Mr. Ramesh Narayanan in his favour and same is Ex.CW1/3.
3.1 CW1, Mr. Sushil Kumar, also deposed that Bombay Suburban Electric Supply, Yamuna, Delhi Power Limited had got the transferred assets of, erstwhile, Indraprastha Power Generation Company Limited by virtue of Delhi Electricity Reforms Act, 2000 and Delhi Electricity Reforms (Transfer Scheme) Rules 2001. The Bombay Suburban Electric Supply, Yamuna, Delhi, Power Limited had also got the entrustment of residential colony of BSES - Yamuna Delhi Power Limited Vs. Suresh Kumar Sharma 3 of 10 Tripolia, New Delhi which includes any dealing with the flats/quarters of the said colony and also to get the flats vacated from the unauthorized occupants vide no. F11/99/2001Power/PFIII/2828 dated 13.11.2001 of the Government, which is Ex.CW1/4. Mr. Suresh Kumar Sharma, accused was initially the employee of IPGCL and had allotted the flat in question vide letter number D/H/G26/FF/II/TC/1472 dated 27.02.2002, which is Ex.CW1/5. Mr. Suresh Kumar Sharma took over the possession of the flat in question alongwith fixtures and fittings vide letter dated 28.02.2002, which is Ex.CW1/6. After, retirement on 30.11.2009, accused had to vacate the said flat but has failed to do so. CW1 also deposed that notices dated 21.07.2010 was issued to the accused requesting him to vacate the premises, which is Ex.CW1/7, but the accused miserably failed to vacate the quarter in question despite notice and kept on illegally occupying the said quarter. CW1 further deposed that accused had unlawfully occupied the quarter in question since 01.04.2010. Complainant evidence was then closed.
4. Thereafter, accused had been summoned under relevant provisions of law.
After, service of summons, Ld.Predecessor Court framed notice against accused in view of sufficient material on record for the offence punishable U/s 630 of the Companies Act, 1956 (Section 452 of Companies Act, 2013).
5. After framing of notice, post summoning evidence in line of presummoning evidence once again recorded. During the course of post summoning evidence, Ld.Counsel for accused has crossexamined CW1 Mr. Sushil Kumar at length. During crossexamination, it is negated by CW1 that they have no jurisdiction to file the present case.
6. Statement of accused under Section 313 Cr.P.C. was also recorded. Accused has also lead defence evidence. Mr. B.N. Sharma examined as DW1. He BSES - Yamuna Delhi Power Limited Vs. Suresh Kumar Sharma 4 of 10 deposed that quarter in question was built under Low Income Group Scheme, 1954 and the owners were Government of NCT of Delhi. During the cross examination though he had admitted that the said low income scheme has not been implemented by the Government. He has also admitted that BSESYPL has been empowered to get the quarter vacated from the unauthorized occupant vide notification dated F11/99/2001Power/PFIII/2828 dated 13.11.2001.
7. Final arguments heard at length. During the course of final arguments, Ld. Counsel for the complainant has relied upon various relevant documents in favour of complainant to address his case under Section 630 Companies Act, 1956 (Section 452 Companies Act, 2013). Ld. Counsel has also relied upon the judgments titled as North Delhi Power Ltd. vs. Govt. of National Capital Territory of Delhi & Ors. 169 (2010) Delhi Law Times 575 (SC), Crl. Appeal No.1197 of 1982 titled as Govind T. Jagtiani vs. Siraj S. Kazi another and Crl. Rev. P. 103/2014 titled as Karan Singh vs. Texmaco Infrastructure & Holdings Ltd. & Anr. While Ld.Counsel for accused has argued that Power of Attorney relied upon by the complainant is not in accordance with law and that the complainant is not the employer of the accused. Same is strongly objected to by the Ld. Counsel for the complainant and he stated that Power of Attorney dated 05.10.2010 executed by Sh. Ramesh Narayanan which is Ex.CW1/3 is legally notarized and is in accordance with the provision of Section 85 of Indian Evidence Act.
8. It is argued by the Ld. Counsel for accused that there is no resolution between the employer (Complainant) and employee (Accused). It is also submitted that the quarter in question instead belongs to the Government of NCT of Delhi. It is also submitted that question regarding the jurisdiction and maintainability of the notification dated 13.11.2001 has to be decided as on case to case basis. It BSES - Yamuna Delhi Power Limited Vs. Suresh Kumar Sharma 5 of 10 is also submitted that the complainant has also filed the eviction petition before the SDM for vacating the premises which is in clear contradiction with respect to the claims made by the complainant in the present case.
9. It has been specifically submitted in written submissions filed by the accused that according to the public premises Act, 1971 only the quarter/premises which are public premises and belongs to the NCT of Delhi the execution of vacation proceedings is to be done by the SDM concerned and the proceedings is also pending before the concerned SDM for eviction of quarter in question. It is also submitted that these quarters have been allotted under the Low Income Group Housing Scheme and no showcause notice have been served upon the accused persons. It is also submitted that CW1 is lacking of relevant details/allegations. In the last para, it is specifically submitted that the complainant had no right title or interest to prosecute the present case and accordingly, complaint be dismissed.
10. I have given my thoughtful consideration to the submissions advanced on behalf of parties and perused the records and considered the relevant provisions of law.
11. 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 BSES - Yamuna Delhi Power Limited Vs. Suresh Kumar Sharma 6 of 10 the Court, any such property wrongfully obtained or wrongfully withheld or knowingly misapplied, or in default, to suffer imprisonment for a term which may extend to two years."
12. It is relevant to note the essential ingredients to prove the offence u/s 630 of Companies Act, which are mentioned as below: Incorporation of the complainant company under Companies Act;
Ownership of complainant company of the aforesaid flat; That the complainant company is the licensor of flat in question and there exists/existed the relationship of employer and employee between the complainant company and accused;
That the flat in question was allotted on licence basis; That the accused ceased to be employee of the complainant company and he is wrongfully withholding the flat in question after cessation of service.
13. 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 "Atul Mathur vs Atul Kalra and Another 1989 (4) SC 514," 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.
14. Also, while dealing with the case U/s 630 of Companies Act, this court is BSES - Yamuna Delhi Power Limited Vs. Suresh Kumar Sharma 7 of 10 guided by the observations made by the Hon'ble Bombay High Court in K.G.K. Nair v. P.C. Juneja 1993 CRI. L.J. 2791 that The provisions of S.630 are intended to provide speedy and efficacious redress in cases where company's property is wrongfully withheld. In S.K. Sarma v. Mahesh Kumar Verma, AIR 2002 SC 3294, though the case pertained to Section 138 of Railways Act but same is almost similar to section 630 of the Companies Act and it provides a procedure for summary delivery to railway administration, of property, detained by a railway servant. It was observed that 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.
15. Now, coming back to the facts in hand, CW1 has deposed that the complainant company is incorporated under the Companies Act and proved on record Incorporation Certificate as Ex.CW1/1. Even otherwise factum of Incorporation of the complainant company under the Companies Act is not disputed at all. CW1 has also stated that BSESYPL has got transferred the assets/shares of erstwhile company by virtue of Delhi Electricity Reforms Act, 2000. In that course, the BSES has also got entrustment of residential colony of Tripolia Colony, New Delhi vide order number F11/99/2001Power/PF III/2828 dated 13.11.2001. In his testimony CW1 has specifically stated that accused was initially employee of Indraprastha Power Generation Company Limited and he had retired from the service on 30.11.2009. Thus, presently the quarter allotted to the accused is the lawful property of Complainant Company and the company required it back.
BSES - Yamuna Delhi Power Limited Vs. Suresh Kumar Sharma 8 of 10
16. CW1 has further deposed that as of now, the person who had legally occupied the quarter in question had retired from the services, he had left with no right, title or interest to occupy the premises in question, just, for reason that he is former employee of BSES. There is no doubt, in the proposition that by virtue of notification number F11/99/2001Power/PFIII/2828 dated 13.11.2001 assets and properties situated at Tripolia Colony, New Delhi stood transferred to the present complainant. Perusal of various documents relied upon by CW1 during his testimony and especially the document Ex.CW1/1 i.e. Certificate of incorporation, it is clear that besides taking over the assests and liabilities, BSES has also got entrustment to recover the properties of the erstwhile power company. Thus, not only the relation of employer and employee stands proved but also other powers of complainant company including to reclaim back its property.
17. Further, to comprehend, Mr. Suresh Kumar Sharma who was initially the employee of erstwhile, Indraprastha Power Generation Company Limited and later on, employee of the complainant company retired from the services on 30.11.2009, had failed to handover the vacant physical possession of the premises in question to the complainant company in accordance with law. The testimony of CW1 could not be shattered during the crossexamination or by leading any further evidence on behalf of accused.
18. Thus, in view of the aforesaid discussions, and in the light of overall circumstances, it is held that complainant has proved that accused Suresh Kumar Sharma was allotted the aforesaid quarter by virtue of his employment and he was liable to vacate the quarter after his retirement. But, he had failed to vacate and hand over the possession of the quarter in dispute to the complainant. As such, accused has been wrongfully withholding the quarter of BSES - Yamuna Delhi Power Limited Vs. Suresh Kumar Sharma 9 of 10 the complainant company. Thus, it is held that complainant has proved its case against the accused Suresh Kumar Sharma beyond reasonable doubt. Accordingly, accused is held guilty and convicted for the offence u/s 630 of the Companies Act 1956 (Section 452 of Companies Act, 2013).
19. Copy of the judgment be given to the accused. Let the convict be heard on point of sentence on 02.12.2021.
Announced in the Open Court today i.e. 16.11.2021 (MANU VEDWAN ) ACMM(Special Acts) CENTRAL TIS HAZARI COURTS DELHI BSES - Yamuna Delhi Power Limited Vs. Suresh Kumar Sharma 10 of 10