Delhi District Court
Satpal Singh vs Mother Diary Fruits And Vegetable Pvt. ... on 17 December, 2021
IN THE COURT OF MS. NEELOFER ABIDA PERVEEN:
ADDL. SESSIONS JUDGE : (CENTRAL DISTRICT):
TIS HAZARI COURT:DELHI
CNR No.DLCT010027442020
Crl. Appeal No. 75/2020
In the matter of :
Satpal Singh
Flat No. F3,
Mother Dairy Staff Quarters,
Patparganj, Delhi92 .....Appellant
Versus
Mother Diary Fruits and Vegetable Pvt. Ltd.
(Through its Managing Director)
Registered Office at Mother Dairy
Patparganj, Delhi92. .....Respondent no. 1
State - Govt. of NCT of Delhi
Through its Secretary / Director Prosecution
Delhi .....Respondent no. 2
Date of Institution : 27.02.2020
Date of Judgment : 17.12.2021
C.A. No.75/2020 Page 1
JUDGMENT
The present appeal has been filed against judgment of conviction dated 18.01.2020 and order on sentence dated 31.01.2020 in complaint case no. 2928/2017 passed by Sh. Viplav Dabas, Ld. ACMM (Special Acts), Central District, Tis Hazari Courts whereby the appellant was convicted for offence under Section 452 read with Section 435 of Companies Act and sentenced to pay fine of Rs.2,00,000/ and in default to undergo SI for six months.
1. The judgment of conviction is assailed by the accusedappellant on the ground that the appellant was a permanent employee of the Mother Diary, Delhi92 and he was original allottee of the property in question which was allotted by the Mother Dairy, Delhi and that the said property was never allotted by the respondent no. 1 - complainant company i.e. Mother Dairy Fruits and Vegetables Pvt. Ltd. That respondent no. 1 had filed present complaint case without any legal authority i.e. without any resolution of Board of Directors of the company nor any registered power of attorney to file the present complaint. That respondent no. 1 is a private limited company. The company law lays down that only Board of Directors by way of a Board Resolution is authorized to empower an employee or an agent to act on its behalf. That it is also possible for the Board of Director to empower the Managing Director etc of the company C.A. No.75/2020 Page 2 to appoint an agent to represent the company before the court of law. That in the present complaint case the company is purportedly represented by Mani Shankar Jha. That the appellant while crossexamining CW1 questioned his authority to act on behalf of the company but the complainant company did not submit any Board Resolution empowering either the Managing Director or the Authorized Representative to appoint the employee to act and represent the company before a Court of law. In the absence of the Board Resolutions empowering the Managing Director or the Chief General Manager / Company Secretary, these authorities have no power to appoint any person to act on behalf of the company. That Ex CW1/1 has no legal value in the eyes of law and consequently. The complainant company has not proved that Mani Shankar Jha was lawfully authorized representative to act on its behalf. That the appellant is not an unauthorized occupant upon the flat in question as interim injunction in favour of appellant was granted in Civil Suit No. 05/2016. That whole premises of the Mother Dairy, Patparganj, Delhi92 area measuring 38.5 acres was allotted to the Delhi Milk Scheme, Government of India by the Delhi Development Authority (DDA), on perpetual lease basis with condition that the possession of the land should not be transferred to any department without permission of DDA. That whole premises of Mother Diary, Delhi are covered under the Public Premises (Eviction of Unauthorized Occupants) Act 1971. That even Clause 14 (v) mentioned in C.A. No.75/2020 Page 3 the license deed Ex CW1/3 made by the Mother Diary recognises the jurisdiction of the Public Premises (Eviction of Unauthorized Occupants) Act 1971 only. That respondent no. 1 has not executed any license deed with the appellant and as such the complete case is bad in the eyes of law. Respondent no. 1 is not the owner of the Land / Flat in question. That the impugned orders are against the facts of the case and also against the well settled law on the aspects involved in the case. That there is neither a whisper nor a shred of evidence nor anything to show that the respondent no. 1/complainant company had allotted the flat in question to the appellant at any point of time. That Ld. Trial Court has ignored the facts that the respondent no. 1 has completely failed to prove the preponderance of probability of any legally enforceable ownership rights or proof in its favour and against the appellant. That ld. Trial Court has ignored the facts that the respondent no. 1 / complainant company is not the owner of the land / flat in question. The respondent no. 1 / complainant had not filed any ownership proof / documents of the land / flat in question before Ld. Trial Court. That these facts were admitted by CW1 in his cross examination on 16.08.2018. That Ld. Trial Court has ignored the facts that the respondent no. 1 / complainant company is asking for the same relief in both cases i.e. present complaint case no. 2928/2017 and Civil Suit No. 3228/ 2016 filed against the appellant to evict the appellat from the flat in question. The same property in question has been stayed by the Ld. Civil C.A. No.75/2020 Page 4 Judge, East District, Karkardooma Courts, Delhi and Hon'ble Central Government Industrial Tribunal cum Labour Court No. 1, New Delhi vide order dated 28.10.2017 and 05.07.2019 respectively. That the respondent no.1/complainant company adopted the tactics of forum shopping to harass the appellant mentally and it is a premature complaint, as employee and employer relation is still subsisting between the parties and the matter is subjudice before the Hon'ble CGITcum-Labour Court No.1, Rouse Avenue Courts, New Delhi. Ld. Trial Court has ignored the facts that the Central Government referred the industrial dispute between the appellant and the Mother Diary to the Hon'ble Central Government Industrial Tribunal cum Labour Court No. 1, Rouse Avenue Courts Complex, Delhi under Section 10 of Industrial Disputes Act, 1947. That Ld. Trial Court has ignored the facts that firstly, the respondent No.1 - complainant has no locus standi in the matter because the respondent no. 1 was not a party to the lease deed and the allotment was also not given by the respondent no. 1 i.e. complainant company in any manner. Secondly, the estoppel under Section 116 of Indian Evidence Act is not applicable in this matter as the respondent no. 1 has a different identity from the original allottee. Hence, it is mandatory for the respondent No. 1 / complainant company to prove his ownership and clear title of the flat in question. That Ld. Trial Court has ignored the facts that the appellant was actually the workman- employee of the Mother Dairy and he had executed the license C.A. No.75/2020 Page 5 deed with Mother Dairy, Delhi only. This fact is already proved from the exhibited offer of appointment letter dated 01.07.1996 and License deed dated 10.09.2007 vide Ex CW1/17 and Ex CW1/3 respectively and CW1 also admitted these facts in his crossexamination on dated 16.08.2018 before Ld. Trial Court. That Ld. Trial Court has ignored the facts that the flat in question is allotted by the Mother Dairy, Patparganj, Delhi Ex CWA/18 and that the allotment is not related with the respondent no. 1 in any manner.
2. It is contended for the respondent on the other hand that the present appeal has been filed by the appellant under Section 374 Cr.P.C. read with Section 437 Companies Act, 2013 against the conviction order dated 31.01.2020 and Judgment dated 18.01.2020 passed by the Court of Sh. Viplav Dabas, Ld. ACMM (Special Acts), Delhi in complaint bearing CC No. 2928/2017 under Section 452/435, the Companies Act, 2013. That Special Act will prevail over the general law, hence in the present appeal, Section 437 of Companies Act, 2013, shall prevail over general law of Cr.P.C. That as per Section 437 Companies Act, 2013 an appeal shall lie before Hon'ble High Court of Delhi against the order of Special Court. That the said complaint under Sections 452/435 of the Companies Act, 2013 was originally filed before Ld. CMM, Karkardooma, Delhi by the respondent on 27.08.2016. That vide order dated 19.09.2016 Ld. CMM C.A. No.75/2020 Page 6 Sh. Naresh Kumar Laka held that Hon'ble High Court has designated Special Court to conduct the proceedings under Special Act such as Environment Act, Prevention of Cruelty against Animal Act, Immoral Traffic Prevention Act, Companies Act etc. Ld. CMM, Sh. Naresh Kumar Laka also held in the said order dated 19.09.2016 that on enquiry the Court found that the Court of Ld. ACMM (Special Acts), Central District, Delhi is a Special Court for dealing with cases under Companies Act and accordingly Sh. Naresh Kumar Laka, Ld. CMM, Karkardooma transferred the said matter to Ld. ACMM (Special Acts) Central District, Delhi through Ld. CMM, Central District, Delhi. That vide order dated 27.09.2016 Sh. Saurabh Kulshreshtha, ld. CMM, Central District, Delhi was pleased to assign the matter to the Court of Sh. Deepak Wason, Ld. ACMM (Special Acts), Central District, Delhi in terms of the order dated 19.09.2016 of Sh. Naresh Kumar Laka, Ld. CMM, Karkardooma. Thus the matter was transferred to the Special Court dealing with Companies Act. That vide order dated 21.12.2016, Ld. ACMM (Special Act) took the cognizance of the case under Section 452, Companies Act, 2013 and summoned the accused. Thereafter the accused was tried under Companies Act. Finally vide impugned judgment dated 31.01.2020 Sh. Viplav Dabas, Ld. ACMM (Special Acts) Central District, Delhi convicted the appellant under Section 452/435 Companies Act, 2013. That the accusedappellant was tried and convicted under Section 452/435 C.A. No.75/2020 Page 7 Companies Act, 2013 by the Special Court of Sh. Viplav Dabas, Ld. ACMM (Special Acts) Central District, Delhi hence as per Section 437 Companies Act, 2013 the appeal lies in the Hon'ble High Court. Even the present appeal has been filed under section 437 Companies Act, 2013 which says appeal shall lie in Hon'ble High Court. That respondent M/s Mother Dairy Fruit & Vegetable Pvt. Ltd. is a company registered under Companies Act and Mother Dairy, Patparganj is a unit of the Respondent company. At the bottom of the letter heads on which Eviction notice dated 05.12.2015 (CW1/2) chargesheet dated 08.02.2016 (CW1/14) and termination letter dated 02.05.2016 (CW1/5) are written shows that Mother Dairy, Patparganj is a unit of the respondent company. No defence evidence was lead by the Appellant to prove otherwise. On 06.07.2019, in his crossexamination CW1 volunteered that Mother Dairy is a unit of Mother Dairy Fruit & Vegetable Pvt. Ltd. No suggestion was given by the appellant on this point. Hence all the acts done by Mother Dairy such as issuing appointment letter Ex CW1/1, license deed Ex CW1/3, allotment letter Ex CW1/18 etc. has been done on behalf of the complainant company. That the appellant Satpal Singh was an employee of the respondent company i.e. Mother Dairy Fruit and Vegetable Pvt. Ltd., and documents such as Appointment Letter Ex CW1/7, License Deed Ex CW1/3, allotment letter Ex CW1/18, Salary Slips Ex CW1/5 to Ex CW1/8, eviction notice Ex CW1/12, chargesheet Ex CW1/14 and termination letter C.A. No.75/2020 Page 8 Ex CW1/18 etc. show that the appellant was an employee of the respondent company. No defence evidence was led by the accused to prove otherwise. Hence, Ld. ACMM has rightly held that appellant was an employee of the respondent company. That the respondent company received complaints (Ex CW1/9 - Ex CW1/11) regarding sexual harassment of Ms. Neha Chaudhary, daughter in law of Sh. Umesh chaudhary by the appellantaccused in staff quarter complex, thus the appellant indulged himself in quarreling with neighbour and disturbed the tranquility of the community life. The petitioner also violated clause 15 (A) (i) of the license deed. According to clause 15 (A) (i) of the License Deed, the quarrelling with neighbour and disturbing tranquility shall constitute the breach of conditions of the License and under Clause 15 (B), the General Manager shall revoke the license on breach of condition of the license. Further under Clause 16, General Manager has discretion to revoke the license by giving two months notice to the employee to vacate the flat. An eviction notice dated 05.12.2015 was issued by the General Manager of the respondent company revoking the license deed and calling upon the accusedappellant to vacate the flat within two months. A police complaint dated 01.02.2016 and FIR No.107 dated 24.02.2016 under Section 354 IPC at PS Mandawali Fazalpur was registered by the victim Ms. Neha Chaudhary against the petitioner Satpal Singh. Despite expiry of the notice period, the petitioner did not vacate the premises. The appellant C.A. No.75/2020 Page 9 was chargesheeted for misconduct, disobedience by the employer /respondent and domestic enquiry against him was conducted. After perusal of enquiry report and reply of the show cause notice, he was terminated from the service and again asked to vacate the staff flat but again he failed to vacate the same. That the flat in dispute belongs to the company (Electricity bills, Ex CW1/4). Further accused himself got complainant witness CW1 admitted in his crossexamination that the property is of the company. The license deed dated 10.09.2007, allotment letter dated 07.09.2007 and possession letter / inventory dated 18.09.2007 shows that the company allotted the flat to accusedappellant by virtue of employment on merely license basis. As per clause 13 (d) of the license deed, the appellant was under contractual obligation to hand over the said flat F3 on expiry of the license deed or on revocation of the license deed but the appellant did not hand over the same to the respondent even after expiry of the revocation / eviction notice dated 05.12.2015. That even law of estoppels under Section 116 Evidence Act applies in this case. Accused appellant being a licensee cannot challenge ownership / title of the respondent company on the said flat. That the appellant has committed the offence of wrongfully withholding the said property under section 452 of the Companies Act and the Ld. ACM has passed a well reasoned impugned judgment of the complaint filed by the respondent company through his authorized representative. The appellant - accused has C.A. No.75/2020 Page 10 admitted in his statement of accused that the authority letter Ex CW1/1 of the authorized representative was a matter of record. It is also pertinent to mention that no suggestion as to the falsity of the authority letter was made by the appellant during crossexamination. That adinterim injunction order dated 28.10.2017 in Civil Suit No. 05/2016 talks about no eviction without due process of law. The proceedings conducted by Ld. ACMM in the present complaint were as per due process of law. It was further clarified by the High Court in its order dated 12.10.2019 in WP (C) No. 9341/2019 that it will be open for the Ld. ACMM to proceed with the complaint in accordance with law. Thus the proceedings before Ld. ACMM in the present complaint case were as per due process of law.
3. I have heard the Ld. Counsels and perused the record with their able assistance.
4. M/s Mother Dairy Fruit and Vegetable Pvt. Ltd., a company duly registered under the companies Act,1956, the 'complainant company', filed complaint u/s 452 r. w. s. 435 of the Companies Act 2013 (hereinafter referred to as the Act), through its Deputy General Manager and Authorized Signatory and constituted attorney of the complainant company against the appellant herein on 30.08.2016 alleging that the accused/appellant is an employee of the complainant company working in C.A. No.75/2020 Page 11 its plant situated at Mother Dairy Patparganj Delhi and was allotted a staff quarter No. F3 in the Mother Dairy's Staff Quarters complex colony located at Patparganj Delhi by way of License Deed dated 10.9.2007, which license was revoked by the company vide letter dated 5.12.2015 as the accused was found in violation of clause 15A(i) of the License deed while exercising the sole discretion in this regard vested under Clause 16, on account of written complaints made against the accused on 30.11.2015 by one Umesh Chaudhary also an employee of the company, his daughter in law and his mother accusing the present appellant of having misbehaved with the daughter in law of Umesh Chaudhary, for quarrelling and disturbing the tranquility of community life of the Staff Quarters. The accused was called upon to vacate the premises within two months ie on or before 5.2.2016, however the accused failed to vacate the staff quarters. Thereafter the accused was chargesheeted on 8.2.2016 for misconduct, disobedience and was terminated from services after domestic enquiry and show cause notice, and was again directed to hand over vacant possession of the staff quarters. That the accused who has been in illegal and unauthorized possession and wrongfully withholding the flat No. F3, Mother Dairy Staff Quarters Complex, Patparganj, Delhi since 06.02.2016 again failed to hand over the said flat to complainant, even after cessation from services on 02.05.2016. That the license deed dated 10.09.2007 was executed between the complainant and the accused Sh. Satpal Singh for C.A. No.75/2020 Page 12 allotment of the said flat F3 and as per clause 13 (d) of the License Deed dated 10.09.2007, the accused Sh. Satpal Singh was under contractual obligation under the contract i.e. license deed 10.09.2007 to return the said property to the complainant on the expiry of the license deed or on revocation of license. But the accused Sh. Satpal Singh did not return the said flat to the complainant even after expiry of revocation/eviction notice dated 05.12.2015.
5. Accused was summoned for commission of offence u/s 452 Companies Act, 1956 vide order dated 21.12.2016, summoning order was assailed in revision, which was dismissed on 31.03.2017. Notice of accusation was served upon him on 3.5.2017, for the offence punishable u/s 452 of the Act, to which he pleaded not guilty and claimed trial.
6. The complainant company examined AR of the complainant Mani Shankar Jha as CW1 who deposed along the lines of the complaint to the effect that he was working as DGMHR with the Mother Dairy and he is Authorized Representative of complainant company. That Sh. Satpal Singh accused in this case was employee of the complainant company. That in September 2007, a licence deed dated 10.09.2007 was executed between the complainant and accused whereby a staff quarter of Mother Dairy bearing No. F3, Mother Dairy Staff Quarter Complex, Patpar Ganj, C.A. No.75/2020 Page 13 Delhi110092 was given to the accused on licence basis. That on 30.11.2015, the complainant company received a complaint by Sh. Umesh Choudhary who is also an employee of the complainant company and lives with his family in the neighbourhood of the accused i.e. Flat No. E10, Staff Quarter, Mother Dairy, Patpar Ganj, Delhi110092 against the accused stating that on 28.11.2015, the accused misbehaved with his daughter in law Smt. Neha Choudhary and thus indulged in quarreling with neighbor and disturbed the peace of the community life. Thereafter, the complainant company received a complaint from Ms. Neha Choudhary and from Smt. Meena Choudhary on 01.12.2015 against accused. That since the accused had violated the terms of license deed, hence the complainant company issued revocation /eviction notice dated 05.12.2015 against the accused with the direction to hand over the said flats on or before 05.02.2016. That even after expiry of the notice period the accused did not vacate the said flat, the complainant company issued a charge sheet dated 08.02.2016 against the accused. Thereafter, the domestic inquiry proceedings was initiated against the accused as per the principle of natural justice. Thereafter, on the basis of the inquiry report and the facts and circumstances the accused was terminated from the service vide letter dt. 02.05.2016 with the additional directions to vacate the said flat. That even thereafter the accused did not vacate the flat, and the complainant company lodged a complaint dt. 06.05.2016 with the PS Mandawali Fazalpur. That C.A. No.75/2020 Page 14 the accused has not even paid the prevalent market rent at the rate of Rs.7,000/ p.m. as penal rent since 06.02.2016 and since then the accused is withholding the said flat which is the property of the complainant company unlawfully. That the accused was employed as Junior Assistant IV and he was terminated on 02.05.2016. That accused was allotted quarter No.F3, Mother Dairy Staff Quarters Complex, Patpar Ganj, Delhi 92 in the year 2007 on his request. That the said quarter was alloted for his residence till his services in the complainant company or same can be got vacated if the allottee violates any of the terms and conditions of the license deed. Accused was issued a eviction notice as accused had violated the conditions of license deed which was served upon the accused by hand. That accused was given 60 days time to vacate the premises but failed to vacate the same after expiry of notice period. Thereafter, disciplinary enquiry was initiated against the accused and accused was chargesheeted on 08.02.2016 and was terminated from the services of the company. Since accused has not vacated the premises even after termination, the company filed the present complaint. That the accused is keeping forcible possession of the premises in question till date.
7. CW1 tendered, Authority Letter as Ex.CW1/1, appointment letter as Ex.CW1/17, salary slip for the month of February to May' 2016 as Ex.CW1/5 to Ex.CW1/8, License deed dated 10.09.2007 as Ex.CW1/3, the C.A. No.75/2020 Page 15 electricity bill of the said staff quarter as Ex.CW1/4, site plan as Ex.CW1/2, the complaint dated 30.11.2015 as Ex.CW1/9, complaint of Ms. Neha Choudhary dated 01.12.2015 as Ex.CW1/10, complaint of Smt. Meena Choudhary as Ex.CW1/11, Copy of eviction notice dated 05.12.2015 as Ex.CW1/12, charge sheet dated 08.02.2016 against the accused as Ex.CW1/14 , termination from the service vide letter dt. 02.05.2016 as Ex.CW1/15, complaint dated 06.05.2016 with the PS Mandawali Fazalpur as Ex.CW1/16, police complaint of Mr. Umesh Choudhary dt. 01.02.2016 as Ex.CW1/13, the complaint U/s 452 r/w 435 of the Companies Act 2013 as Ex.CW1/A and the appointment letter as Ex.CW1/17
8. CW1 in his cross examination admitted that Lease Deed Ex.CW 1/3 was made between Mother Dairy Patpar Ganj Delhi and Satpal Singh, that before issuance of the Eviction Notice no written Show Cause Notice was issued to the accused. CW1 volunteered that the accused was verbally asked to vacate but he could not remember when the verbal notice was given. That Ex.CW1/9 i.e. his complaint was received on 30.11.2015 and the other two complaints on 01.12.2015. It was suggested to the witness and was accordingly denied by him that CW1/9 to 11 are antedated and it is for this reason that the same do not find any mention in C.A. No.75/2020 Page 16 Ex.CW1/12. It is admitted by CW1 that no proof of ownership of the property had been filed though electricity bill was placed on record but he was not aware whether Memorandum of Association or Article of Association were filed or not. It was deposed to by CW1 that accused had made formal request for allotment of the accommodation. That no separate possession letter was issued and it was clarified that the allotment letter itself is the possession letter. It was admitted by the witness that formal request letter, allotment letter and possession letter are not filed with the complaint though the same could be produced. The witness deposed that the complainant company is owner of the property in question and denied the suggestion that it was premises of Mother Dairy Delhi area measuring 38.4 acres was allotted to the DMS, Government of India by DDA on Perpetual lease basis. It was admitted by the witness that civil suit was filed by the accused in January 2015 and that the complaint is filed in September 2016. The witness denied the suggestion that the complaint was filed as a counter blast to the civil suit. The witness denied the suggestion that he had used derogatory remarks against the accused. The witness was not aware of any complaint pending against him for the alleged use of derogatory remarks or that he intends to get the flat in question allotted to his one relative or that he had used influence to get the flat vacated or that there is no lease deed between the complainant and the accused or that no flat was allotted to the accused or that accused had not C.A. No.75/2020 Page 17 made any formal request for allotment of flat. At first the witness stated that the accused was on weekly off on 28.11.2015 but then stated that he was not aware of his duty on that day. He was not aware if any PCR call was made on 28.11.2015 by Umesh Chand. The witness was called upon to produce the formal request letter, allotment letter and possession letter and accordingly on 06.07.2019 he produced the allotment letter dated 07.09.2007 Ex.CW1/18 and internal letter regarding possession Ex.CW 1/19 and a possession letter /inventory dated 18.09.2007, Ex.CW1/20. The witness denied that the accused is not an employee of M/s Mother Dairy Fruits and Vegetable Pvt. Ltd. The witness admitted that the accused was issued an appointment letter by Mother Dairy Patpar Ganj Delhi 92 and Volunteered that the Mother Dairy Patparganj is a unit of the complainant company, since 1996. That allotment letter dated 09.09.2007 was issued by the complainant company to the accused and denied the suggestion that the allotment letter was not issued by the complainant.
9. Statement of the accused was recorded and all the incriminating material coming in evidence against him was put to the accused. Accused denied all the allegations and material and alleged that the Flat was allotted by Mother Dairy, Delhi which was not a company, that he did not receive any such notice as Ex.CW1/12, that the complaints Ex.CW1/9 to Ex.CW1/11 were false complaints and contended that the AR of the C.A. No.75/2020 Page 18 complainant has personal grudge against him as he want to get the flat in question allotted to his relative.
10. The maintainability itself of the present appeal before this Court is questioned by the respondent on the ground that as the Trial is conducted and sentence is pronounced by a Special Court, therefore, in terms of Section 437 of the Act, the appellate jurisdiction vests in the High Court alone. It is Chapter XXVII of the Companies Act 2013 that contours the framework for the Establishment of the Special Courts. While it is Section 435 of the Companies Act 2013 that provides for the Establishment of the Special Court, Section 436 of the Act delineates the offences triable by the Special Court and appeals and revisions are dealt with under Section 437 of the Act.
Section 435 of the Act provides as follows:
"Establishment of Special Courts(1) The Central Government may, for the purpose of providing speedy (trial of offences punishable under this Act with imprisonment of two years or more), by notification, establish or designate as many Special Courts as many be necessary:
(2) Provided that all other offences shall be tried, as the case may be, by a Metropolitan Magistrate or a Judicial Magistrate of the First Class having jurisdiction to try any offence under this Act or under any previous company law, (3) A person shall not be qualified for appointment as a judge of a Special Court unless he is, immediately before such appointment, holding office of a Sessions C.A. No.75/2020 Page 19 Judge or an Additional Sessions Judge."
Section 436 prescribes the offences triable by Special Court while Appeals /Revisions are dealt with U/s 437 of the Act.
Section 436 and 437 of the Act us reproduced hereunder: "436 : Offences triable by Special Courts ..Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)
(a) [all offences specified under subsection (1) of section 435] shall be triable only by the Special Court [established or designated] for the area in which the registered office of the company in relation to which the offence is committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the High Court concerned.
(b) where a person accused of, or suspected of the commission of, an offence under this Act is forwarded to a Magistrate under subsection (2) or subsection (2A) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorise the detention of such person in such custody as he thinks fit for a peiod not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate:
Provided that where such Magistrate considers hat the detention of such person, upon or before the expiry of the period of detention is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction;
(c) the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code of Criminal Procedure, 1973 (2 of 1974) in relation to an accused who has been forwarded to him under that section; and C.A. No.75/2020 Page 20
(d) a Special Court may, upon perusal of the police report of the facts constituting an offence under this Act or upon a complaint in that behalf, take cognizance of that offence without the accused being committed to it for trial.
(2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974) be charged at the same trial.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the Special Court may, if it thinks fit, try in a summary way any offence under this Act which is punishable with imprisonment for a term not exceeding three years:
Provided that in the case of any conviction in a summary trial, no sentence of imprisonment for a term exceeding one year shall be passed:
Provided further that when at the commencement of, or in the course of, a summary trial, it appears to the Special Court that the nature of the case is such that the sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Special Court shall, after hearing the parties, record an order to that effect and thereafter recall any witnesses who may have been examined and proceed to hear or rehear the case in accordance with the procedure for the regular bail.
"437. Appeals and revisionThe High Court may exercise, so far as may be applicable all the powers conferred by Chapters XXIX and XXX of the Code of Criminal Procedure, 1973 (2 of 1974) on a High Court, as if a Special Court within the local limits of the jurisdiction of the High Court were a Court of Session C.A. No.75/2020 Page 21 trying cases within the local limits of the jurisdiction of the High Court.".
11. The discussion on the aspect of the maintainability of the appeal before this Court is very much reined in by Section 435 of the Act itself more specifically the proviso thereof. A bare perusal of the statutory provision makes it crystal clear that Special Courts under the Act are envisaged to provide speedy trial for offences punishable under the Act with imprisonment of two years or more and all other offences as is spelled under the proviso shall be tried by a Metropolitan Magistrate or a Judicial Magistrate of First Class, as the case may be, having the jurisdiction to try any offence under this Act. The complaint is instituted for commission of offence U/S 452 of the Act, made punishable with fine, thereby is governed by the proviso to Section 435 of the Act.
12. Record reveals that complaint under Section 452 read with Section 435 of the Companies Act, 2013 was instituted against accusedappellant Satpal Singh on 30.08.2016 in the Court of Sh. Naresh Kumar Laka, CMM, East, Presummoning evidence was recorded before Ld. CMM, East on 09.09.2016. Thereafter on 19.09.2016 taking note that the jurisdiction and work of the Courts of Magistrate has been distributed as per Police Station and at the same time in view of the specialized nature of cases, Special Courts have been designated as Special Courts as for example for cases under Environment Act, Prevention of Cruelty against C.A. No.75/2020 Page 22 Animal Act, Immoral Traffic Prevention Act, Companies Act, powers have been conferred on different Courts of CMM/ MM and it is the Court of Sh. Deepak Dabas, Ld. ACMM, Central District, Tis Hazari Court that has been dealing with cases under the Companies Act and accordingly the file was sent to the Court of Sh. Deepak Dabas, Ld. ACMM through the Ld. CMM, Central and vide order dated 27.09.2016 was assigned to the Court of Sh. Deepak Wasan, ld. ACMM, Central District, Special Acts, Central District, Tis Hazari Courts, Delhi.
13. The Court of Sh. Deepak Wasan, Ld. ACMM, Special Acts, Central District, is not a Special Court designate established in terms of Section 435 of the Act, for SubSection (3) of 435 of the Act clearly lays down that it is only a person holding office of Sessions Judge / Additional Sessions Judge who is qualified for appointment as a Judge of a Special Court constituted under Section 435 of the Act. The notification establishing Special court is issued by the Central Government in this regard. Ld. Counsel for the respondent in fact has placed on record the notification no. SO2554(E) dated 27.07.2016 to this effect that is reproduced hereunder:
Notification no. SO2554(E) dated 27th July 2016 In exercise of powers conferred under Section (1) of Section 435 of the Companies Act 2013, the Central Government with the concurrence of the Chief Justice of High Court of Delhi, designates the following Court as Special Court for the purpose of providing speedy trial of offences punishable under the Companies Act, 2013 with imprisonment of two years or more under the Companies Act, 2013 namely: TABLE Sl. No. Existing Court Jurisdiction as Special Court (3) 1 (2) C.A. No.75/2020 Page 23
1. Court of Additional Sessions Judge03 National Capital SouthWest District, Dwarka Territory of Delhi
2. The aforesaid Court mentioned in column number (2) shall exercise the jurisdiction as Special Court in respect of jurisdiction mentioned in column number (3).
14. The division and distribution of jurisdiction, local area and special, amongst the Magistrates is a measure of Administrative expedience. That the Court of Sh. Deepak Wasan, Ld. ACMM was vested with the jurisdiction to deal with Special Acts in no manner is to be construed as elevation of the Court of the Ld. ACMM as a Special Court designated under Section 435 of the Companies Act for trial of offences punishable with two years or more. The appellate powers are vested with the High Court of Delhi only where the judgment of conviction is passed by Special Court designated under Section 435 of the Companies Act and for all intents and purposes by virtue of notification no. SO2554(E) dated 27.07.2016 it is the Court of Additional Sessions Judge03, South West District, Dwarka, that is the Special Court designate under Section 435 of the Act with jurisdiction to deal with the cases under the Act where punishment prescribed is of imprisonment up to two years or more, for the entire National Capital Territory, Delhi. Hence there lies no infirmity in the institution of the appeal before this Court against judgment of conviction dated 18.01.2020 and order on sentence dated 21.01.2020 passed by the Court of Sh. Viplav Dabas, Ld. ACMM, Central District, Tis Hazari Courts, Delhi.
C.A. No.75/2020 Page 24
15. It is contended for the appellant that the complaint is not instituted by an authorized person and on this ground alone the judgment of conviction is liable to be set aside. Complaint under Section 452 read with Section 435 of the Act, 2013 is instituted by M/s Mother Dairy Fruit and Vegetable Pvt. Ltd., a company duly registered under the Companies Act, 1956 that is a wholly owned Subsidiary of national Dairy Development Board, Anand, Gujarat, created by an Act of parliament i.e. the National Dairy Development Act, 1987 and the complainant company instituted the complaint through Sh. Mani Shanker Jha, Deputy General Manager, (HR) / Authorized signatory of the complainant company well conversant with the facts of the case and duly constituted attorney of the complainant company authorized to sign, verify, institute, depose before and pursue the present complaint. Sh. Mani Shanker Jha is himself the DGM (HR) of the complainant company and the authorized representative of the complainant company authorized vide authority letter Ex CW1/1 by Sh. Lalit Prabhakar, GM (Legal & CS) Authorized Signatory of M/s Mother Dairy Fruit and Vegetable Pvt. Ltd. / complainant company to sign complaint, application, affidavit, documents and to give statement evidence etc. on behalf of the company in complaint under Section 452 of the Companies Act 2013 against the appellant Satpal Singh. Hon'ble the High Court of Delhi in the matter of Standard Chartered Bank v. Mr. C.A. No.75/2020 Page 25 Ravi Bhandari (2002) DLT 289, Hon'ble High Court of Delhi held as follows: "5. Law in this regard is now well settled. Anyone can set the criminal law in motion by filing the complaint constituting an offence. For the offences under NI Act only criteria prescribed by Section 142 is that it must be instituted by the payee or holder in due course. The fact that the complaint lodged by a Manager or other employer, who had not been authorised by the Board of Directors to sign and file the complaint cannot be a ground for quashing the complaint. Contrary view was rejected in a recent Supreme Court decision in M.M.T.C. Ltd. and Anr. v. Medchl Chemicals and Phara (P) Ltd. and Anr., , it was held: "10. In our view the reasoning given above cannot be sustained. Section 142 of the Negotiable Instruments Act provides that a complaint under Section 138 can be made by the payee or the holder in due course of the said cheque. The two complaints, in question, are by the appellant company who is the payee of the two cheques.
11. This Court has as far back as, in the case of Vishwa Mitter v. O.P. Poddar , held that it is clear that anyone can set the criminal law in motion by filing a complaint of facts constituting an offence before a Magistrate entitled to take cognizance. It has been held that no Court can decline to take cognizance on the sole ground that he complainant was not competent to file the complaint. It has been held that if any special statute prescribes offences and makes any special provision for taking cognizance of such offences under the statute, then the complainant requesting the Magistrate to take cognizance of the offence must satisfy the eligibility criterion prescribed by the statute. In the present case the only eligibility criterion prescribed by Section 142 is that the complaint must be by the payee or the holder in due course. This criterion is satisfied as the complaint is in the name and on behalf of the appellant Company."
C.A. No.75/2020 Page 26
16. There is no infirmity in the institution of the complaint under Section 452 of the Act read with Section 435 of the Act through the authorized representative, Sh. Mani Shanker Iyer of the complainant company authorized vide authorization letter ExCW1/1. Sh. Mani Shanker Iyer, AR of the company was aware of the facts and circumstances of the case and was also responsible for the discharge of the day to day affairs of the company capable of binding the company with his acts and merely for the reason that there is no Board resolution authorizing Sh. Mani Shanker Iyer to act as representative of the company in itself is no ground to interfere with the judgment of conviction.
17. The appellant refutes the claim of the complainant company that the appellant is the employee of the complainant company or that the property that is Flat No. E10, Staff Quarter, Mother Dairy, Safdurjung Delhi 110092 alloted to him in the capacity of his being an employee of the complainant company by the complainant company and has raised a rather specious plea that he is the employee of Mother Dairy Patparganj, Delhi and not of M/s Mother Dairy Fruit and Vegetable Pvt. Ltd. It is the case of the complainant that Mother Dairy, Patparganj is a unit of Mother Diary Fruit and Vegetable Pvt. Ltd. Copy of the incorporation certificate is tendered by CW1 and when it is suggested to CW1 that the respondent / accused is an employee of Mother Dairy, Patparganj, it is explained by C.A. No.75/2020 Page 27 CW1 that Mother Dairy, Patparganj is a unit of the complainant company.
Further CW1 has also tendered the salary certificate in favour of the appellant issued by the complainant company. The termination letter, and the disciplinary proceedings preceding the termination letter, as well as and the Eviction notice alongwith the appointment letter and the license deed demonstrate that the appellant was very much an employee of the complainant company posted at the Pataparganj unit and alloted the staff quarter at Patparganj by virtue of his employment with the complainant company purely on license basis. The appellant led no evidence in support of his plea that Mother Dairy, Patparganj and M/s Mother Fruit and Vegetable Pvt. Ltd. Are two separate independent unconnected entity and that employment under the one does not tantamount to employment under the other.
18. The case against the appellant is that the appellant as an employee of the complainant company at its Patparganj Unit was allotted Staff Quarter No. F3 at the Patparganj Staff Quarters of Mother Dairy vide License Deed dated 10.09.2007 Ex CW1/3 and on the basis of complaints received against him at the behest of another employee ExCW1/9 to Ex CW1/11 on account of disorderly conduct and objectionable behavior the license was terminated and the appellant was called upon to vacate the allotted staff quarters vide Ex CW1/12 i.e. Eviction Notice dated 05.12.2015 within two months from the date of notice, the appellant however failed to do so.
C.A. No.75/2020 Page 28 Further more that disciplinary proceedings were initiated against him and his services were terminated vide order dated 02.05.2016, Ex CW1/15 directing him to handover immediate vacant physical possession of the premises in question but the appellant / employee failed to do so.
19. License Deed dated 10.07.2002 is Ex.CW1/3, in terms whereof as the employee i.e. the appellant had approached the Dairy to grant him License for a staff quarter in the Mother Dairy Staff Quarters Complex, Patparganj Delhi for his personal use and residential purposes, the Dairy had agreed in consideration of the employee being in service to grant the house accommodation to the employee as License in the interest of the working of the Dairy and accordingly as is inscribed thereunder:
"AND WHEREAS the employee, being in active service of the Dairy, has been allotted as License a Staff Quarter No.3, (Type F) with effect from 15.09.2007 in the Mother Dairy's Staff Quarters Complex (Colony) located at Patparganj, Delhi110092 as Lincenses for his personal use and occupation only"
The following terms and condition were agreed to thereunder:
"It is hereby expressly agreed by and between the parties that the employee is only Licencee in respect of the aforesaid quarter and he shall not have any right or interest by way of lease or otherwise in the immoveable property comprised in the said quarter. The right of the employee in respect of the quarter allotted to him is C.A. No.75/2020 Page 29 personal and he has no right to transfer the quarter to any other person or persons or share the quarter with others. His rights in the quarter are only personal".
The License stands automatically revoked under certain contingencies :
"13(a) That to be licence in respect of the quarter shall automatically stand revoked immediately after the expiry of two months from the date of happening of any of the following events:
(i) Death of employee during the period of service of the Dairy;
(ii) Retirement of the employee from the service of the Dairy;
(b) That the Licence in respect of the quarter shall automatically stand revoked immediately after the expiry of one month from the date of happening of any of the following events:
(i) Relieving the employee on acceptance of resignation from the service of the Dairy;
(ii) Leaving the Licensor for purposes of joining any other organisation either on deputation, lien, foreign service, etc.
(iii) Dismissal or discharge of the employee from the service of the Dairy.
(iv) Termination of the service of the employee from the dairy for any reason whatsoever.
(v) Striking off the name of the employee from the rolls of the Dairy.
c) The General Manager, at the sole discretion, after taking into consideration the facts and circumstances of each case, extend the period of licence as specified in subclause (a) or (b) above by an order in writing specifying the period of licence so extended.
d) The employee/occupants shall hand over the vacant and peaceful possession of the quarter within the period of licence specified in subclause (a) or (b) or as C.A. No.75/2020 Page 30 extended under subclause (c) above as the case may be.
The licence fee or the standard licence fee as the case may be, which was being paid by the employee per month immediately proceeding the happening of any of the events as specified in subclause (a) or (b) above, shall continue to be recovered per month from the employee/occupants of the quarter till the handing over the vacant and peaceful possession of the same during the said period of licence.
What acts/omissions would constitute breach of conditions is prescribed under Clause 15:
"15 (A) The following acts of omission and commission by the Licensees/Occupants shall constitute breach of condition of the Deed:
a) Gambling, Drunkenness, fighting, riotous, disorderly or indecent behavior or any act subversive of discipline in the Dairy quarter or in the Dairy's Housing Colony/Staff Quarters Complex.
b) Theft/Fraud/dishonesty in connection with the property of the residents of the said Staff Quarters Complex (Colony) and/or the Dairy.
c) Willful damage to or loss of or interference with Dairy's property or goods;
d) Holding meetings in the said Colony without the previous written permission of the Dairy.
e) Unauthorized use of Dairy's quarter or land;
f) Conviction in any Court o Law for any criminal
offence involving moral turpitude;
g) Frequent repetition of any act of omission and
commission at the place of occupation or elsewhere for which fine or conviction is imposed by the Court.
h) Carrying immoral trafficking in women in any premises or in the said Staff Quarters Compelx (Colony)
i) Intimidation, holding threats to neighbours, noisy behaviour and quarreling with neighbours, disturbing the tranquality of community life of the said Staff C.A. No.75/2020 Page 31 Quarters Complex (Colony),
j) Any trace or business by the residents of the said Colony without the prior written permission of the Licensor.
B) In case of breach of condition of the Deed by reason of the acts of omission and commissions mentioned in subclause 13(A) above, the General Manager shall, after personal satisfaction, revoke the licence from the date as may be specified in this regard.
The consequences of breach of conditions are also elucidated under subclause C:
C) Save as otherwise provided in this Deed, any violation of terms and conditions of this Deed or improper use of the allotted quarter, premises or land or subletting or unauthorized occupation shall render the Licensees/Occupants liable to all or any of the following actions against him:
i) Revocation of the licence from such date as may be specified;
ii) Recovery of damages/panel charges/commercial charges at the discretion of the Dairy,
iii) Debarring from future allotment of quarter.
iv) Any other action, as deemed fit by the Dairy for eviction of the Employee/Occupant;
v) Disconnection of electricity and water supply;
vi) In all cases where the employee himself is involved, he is liable to atract the relevant clauses of the Standing Orders/Rules as may be applicable to him.
20. Besides under Clause 16 the General Manager, at his sole discretion, reserved the right to revoke the licence in respect of the said quarter by giving two months' notice in writing to the employee and the Employee/Occupant shall vacate the said quarter within the said specified C.A. No.75/2020 Page 32 period failing which the Employee/Occupant shall be deemed to be in an unauthorized occupation of the quarter. The license was revoked by the complainant company on account of disorderly behavior / misconduct by serving upon the licensee two month's notice in terms of Clause 16 of the License Deed. The service of the Eviction Notice Ex CW1/12 is disputed by the appellant. Even otherwise, the staff quarter is allotted wholly and exclusively on the basis of subsisting employment, following the termination of the service, the employer - employee relationship was severed and the appellant no longer being in employment of complainant company was called upon to handover vacant physical possession of the premises in question, which he failed to comply with.
21. It is now a settled proposition of law as reiterated by Hon'ble the Supreme Court of India in Gopika Chandrabhushan Saran & Anr. v. XLO India Ltd. & Anr. 2009 Law Suit (SC) 235 that the main purpose of the provision is to provide a speedy and summary procedure for retrieving the property of the company where it has been wrongly obtained by the employee or unlawfully retained. The relevant portion from the judgment is reproduced here under: "13.The main purpose to make action an offence under Section 630 is to provide a speedy and summary procedure for retrieving the property of the company where it has been wrongly obtained by the employee or officer of the company or where the property has been C.A. No.75/2020 Page 33 lawfully obtained but unlawfully retained after termination of the employment of the employee or the officer. From the bare reading of the section, it is apparent that subsection (1) is in two parts. Clauses (a) and (b) of subsection (1) create two different and separate offences. Clause (a) contemplates a situation wherein an officer or employee of the company wrongfully obtains possession of any property of the company during the course of his employment to which he is not entitled whereas clause (b) contemplates a case where an officer or employee of the company having any property of the company in his possession, wrongfully withholds it or knowingly applies it to purposes other than those expressed or directed in the articles and authorised by the company. Under this provision, it may be that an officer or an employee may have lawfully obtained possession of any property during the course of his employment, still it is an offence if he wrongfully withholds it after the termination of his employment. Clause (b) also makes it an offence, if any officer or employee of the company having any property of the company in his possession knowingly applies it to purposes other than those expressed or directed in the articles and authorised by the Act. In terms of sub section (2) the court is empowered to impose a fine on the officer or employee of the company if found in breach of the provision of Section 630 of the Companies Act and further to issue direction if the court feels it just and appropriate for delivery of the possession of the property of the company and to impose a sentence of imprisonment when there is noncompliance with the order of the court regarding delivery or refund of the property of the company.
14. In Abhilash Vinodkumar Jain v. Cox & Kings (India) Ltd., (1995) 3 SCC 732 this Court had occasion to deal with scope and ambit of the provisions of Section 630 of the Act. This Court analyzed Section 630 and drew a logical deduction in para 13, which is as follows: "13. The logical deduction of the analysis of Section 630 of C.A. No.75/2020 Page 34 the Act in the light of the law laid down by this Court is that:
(i) Clause (a) of the section is selfcontained and independent of clause (b) with the capacity of creating penal liability embracing the case of an existing employee or an officer of the company and includes a past officer or a past employee of the company;
(ii)Clause (b) is equally independent and distinct from clause (a) as regards penal consequences and it squarely applies to the cases of past employees or officers;
(iii)the entitlement of the officer or employee to the allotted property of the company is contingent upon the right and capacity of the officer or the employee by virtue of his employment to continue in possession of the property belonging to the company, under authority of the company and the duration of such right is coterminous with his/her employment. In para 14 this Court further laid down the Scope and ambit of Section 630:
14. Thus, inescapably it follows that the capacity, right to possession and the duration of occupation are all features which are integrally blended with the employment, and the capacity and the corresponding rights are extinguished with the cessation of employment and an obligation arises to hand over the allotted property back to the company. Where the property of the company is held back whether by the employee, past employee or anyone claiming under them, the retained possession would amount to wrongful withholding of the property of the company actionable under Section 630 of the Act. The argument of the learned counsel for the appellants that since the provisions of Section 630 of the Act are penal in nature the same must be strictly construed and, the parties which have not been expressly included by the legislature in Section 630(1) of the Act, cannot by any interpretative extension be included in the said provision, ignores the situation that by a deeming fiction, the legal representatives or heirs of a past employee or officer, in occupation of the property of the C.A. No.75/2020 Page 35 company, would continue to enjoy the personality and status of the employee or the officer only. An argument quite similar in nature was raised in Baldev Krishna Sahi case (1987) 4 SCC 361 also while resisting the extension of the provisions of Section 630 of the Act to the past employee or past officer and rejecting the same, this Court opined: (SCC pp. 36566, para 6)"
22. Prior to filing of the complaint under Section 432 of the Act against the appellant, appellant has initiated civil litigation against dispossession and also raised industrial dispute challenging the termination order.
During the pendency of the proceedings before the Ld. Trial Court the appellant sought dismissal of the complaint on the ground of pendency of the civil litigation, industrial dispute and interim directions thereunder. It emerges that vide order dated 28.10.2017 passed by the Court of Sh. Munish Garg, Ld. Civil Judge, East, the complainant company was restrained acting upon letter dated 05.12.2015 and from getting the property in question vacated during the pendency of the suit without due process of law. In the course of the proceedings before the Ld. Labour Court, one application for stay in respect of Flat No.3, Mother Dairy flats, Patparganj, Delhi allotted to the appellant came up for consideration and directions were passed against the management restraining the management from evicting the complainant except with due process of law vide order dated 05.07.2019. This order was challenged by the complainant company in Writ Petition (C) No. 9341/2019 before Hon'ble C.A. No.75/2020 Page 36 the High Court of Delhi and following directions were passed on 28.08.2019: "It is, therefore, clarified that in case the injunction operation in favour of the respondent in CS No.5/2016 is vacated by the learned Civil Court, the petitioner will be entitled to take action in accordance with law to evict the respondent."
Clarification was sought by the complainant company / management and accordingly vide order dated 22.10.2019 it was clarified as follows: "it is clarified that the order passed by this Court will have no effect on any of the pending proceedings between the parties and therefore, it will be open for the learned ACMM to proceed with the complaint in accordance with law."
23. Section 452 of the Act envisages summary procedure for eviction of an unauthroized occupant over property of the company. Pendency of civil proceedings in respect of the company's property in question in itself has no bearing upon the proceedings initiated under Section 452 of the Act or its final outcome. It is only in such cases where a bona fide civil dispute is raised or is involved pertaining to the property in question which is not capable of being determined by way of summary procedure that the proceedings under Section 452 of the Act may not be considered as appropriate remedy. It is only where there is serious title dispute involving complex issue of fact and law that the remedy under Section 452 of the Act by way of summary proceedings for eviction may not be the desirable C.A. No.75/2020 Page 37 course of action as such title dispute are not amenable to adjudication by way of summary proceedings. Hon'ble the Supreme Court of India in the matter reported as Atul Mathur v. Atul Kalra, 1989 SCC (Cri) 761 has held as follows: "Merely because respondent no. 1 has schemingly filed a suit before tendering his resignation, 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 S. 630. If a view is mechanically taken that whenever a suit has been filed before a complaint is laid under S. 630, the criminal court should not proceed with the complaint, it would not only led to miscarriage of justice but also render ineffective the salutary provisions of S. 630.
xxxxxxx xxxxxx xxxxxxx
19. Therefore what has to be seen in a complaint under S. 630 is whether there is "no dispute or no bona fide dispute" regarding a property claimed by the company between the company and its employee or ex employee. It is needless to say that every dispute would not become a bona fide dispute merely because the company's claim to possession is refuted by an employee or exemployee of the company. As to when a dispute would amount to a bona fide dispute would depend upon the facts of each case. In the present case the High Court has realised this position and observed that "while considering whether the plea of tenancy is bona fide plea, it is always necessary to examine and consider the transaction on the basis of which the plea is based."
24. No such dispute, civil in nature impinging upon, pertaining to title or C.A. No.75/2020 Page 38 any right or interest in the premises in question is thrown up for adjudication in the course of the present proceedings under Section 452 of the Act. The appellant was inducted as Junior AssistantIV at the Mother Dairy, Patparganj unit of the complainant company vide appointment letter ExCW1/17 dated 31.07.1996 and was alloted staff Quarter F3, Mother Dairy Staff Quarter, Patparganj, Delhi on license basis by virtue of his employment at the Mother Dairy Patparganj unit of the complainant Company, he was receiving salary from the complainant company, his services were terminated vide termination letter dated 02.05.2016 calling upon him to hand over vacant physical possession of the premises and prior thereto the the license was revoked vide letter dated 05.12.2016 invoking Clause 16 of the License Deed, the licensee was given two months notice to hand over vacant physical possession of the premises. The appellant raised an Industrial dispute challenging his termination as unlawful which is pending adjudication and there is no stay in operation in favour of the appellant so far as the termination from services is concerned. The appellant disputed the ownership of the complainant company without any basis and pertinently nowhere claimed the vesting of any right, title or interest in respect of the property in question in himself.
25. That the appellant was a licensee over the property in question having no right, title or interest in the same emerges as the established C.A. No.75/2020 Page 39 /settled position and once his services stood terminated the appellant was liable to hand over physical and vacant possession of the premises to the complainant company and the failure on his part establishes the offence under Section 452 of the Act against him that he was wrongfully withholding the property belonging to the company. The reliance placed upon the decree dated 27.01.2020 passed by the Court of Ld. Additional District Judge, South District, Saket in Suit no. 3228/2016 whereby the suit for possession of the complainant company was decreed under Order 12 Rule 6 CPC, in support of the contention that the occupation of the appellant over the premises in question was rightful all along is misplaced, for the decree in the eviction suit is against the appellant and not in favour of the appellant.
26. As a consequence of the discussion above, the judgment of conviction dated 18.01.2020 with the order on sentence dated 31.01.2020 passed by the Court of Sh. Viplav Dabas, Ld. ACMM (Special Acts), Central District, Tis Hazari Courts, Delhi in C. C. No.2928/2017 are upheld and the appeal accordingly dismissed, three week's time, however, is being granted to the appellant to vacate the premises in question.
C.A. No.75/2020 Page 40
27. Trial Court Record be sent back with copy of judgment. Appeal file be consigned to Record Room.
Announced in the open Court on this day 17th December, 2021 (Neelofer Abida Perveen) Additional Sessions Judge : (Central) Tis Hazari Court:Delhi C.A. No.75/2020 Page 41