Gauhati High Court
Smt. Binoda Dutta vs Thengalbari Estates Pvt. Ltd on 21 January, 2020
Author: Ajit Borthakur
Bench: Ajit Borthakur
Page No.# 1/5
GAHC010010582015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P. 90/2015
1:SMT. BINODA DUTTA
W/O LT. BABUL DUTTA, R/O AIDEOBARI TEA ESTATE, TEOKGHAT,P.S.
SONARI, DIST. SIVASAGAR, ASSAM.
VERSUS
1:THENGALBARI ESTATES PVT. LTD.
REP. BY MANAGER, AIDEOBARI TEA ESTATE, TEOKGHAT, P.S. SONARI,
DIST. SIVASAGAR, ASSAM.
Advocate for the Petitioner : MR.S DASGUPTA
Advocate for the Respondent : MR.N DEKA
BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
JUDGMENT & ORDER (ORAL)
Date : 21-01-2020 Heard Mr. S. Dasgupta, learned counsel for the petitioner and Mr. N. Deka, learned counsel for the respondent/complainant.
2. This petition under Section 401 Cr.P.C. read with Article 227 of the Constitution of India is directed against the Judgment and Order, dated 02.02.2015, passed by the learned Sessions Judge, Sivasagar, in Crl. Appeal No. 13(2)/2014, upholding the conviction and sentence passed by the learned Sub-Divisional Judicial Magistrate (M), Charaideo at Sonari in C.R. Case No. 18/2012 against the accused/petitioner, under Section 630 of the Companies Act, 1956, whereby she was directed to deliver the vacant and peaceful possession of the tea garden quarter to the respondent Tea Company Page No.# 2/5 within a period of 1 (One) month and sentenced to pay fine of Rs.5,000/- (Five Thousand) only, in default to undergo simple imprisonment for 3 (Three) months.
3. The case of the respondent/complainant company as alleged in the complaint petition, precisely, is that the accused/petitioner is the wife of a deceased employee, namely Babul Dutta of the said respondent company. Late Babul Dutta was allotted with a garden quarter while working in the said company and he died on 03.09.2009. After his death, the petitioner was to vacate the quarter and hand over its possession to the respondent. The accused/petitioner initially prayed time for 6 (six) months to vacate the quarter and the company allowed the extension on humanitarian ground. However, as after elapse of the aforesaid period, the accused/petitioner did not vacate the quarter, the Manager, Aideobari Tea Estate served a written notice to her, on 05.05.2011, asking her to vacate the quarter by 06.06.2011. After receiving the notice, the accused/petitioner expressed her inability to vacate the quarter. Hence, the respondent/company filed a complaint case under Section 630 of the Companies Act, 1956 and thereupon, C.R. Case No. 18/2012 was registered in the Court of learned SDJM, Charaideo at Sonari, Assam. After trial of the said case, the learned SDJM, Charaideo at Sonari convicted and sentenced the accused/petitioner, as stated above, which was upheld by the learned Sessions Judge, Sivasagar in Crl. Appeal No. 13(2)/2014.
4. Mr. S. Dasgupta, learned counsel for the accused/petitioner, submits that the dispute between the parties is out and out a civil dispute as the accused/petitioner along with other family members has been in exclusive possession of the disputed land and the house standing thereon for the last 57 years, since the days of her grandfather-in-law Lt. Basanta Dutta, without interruption, that is, by right of adverse possession.
5. Referring to the evidence, Mr. Dasgupta submits that PW 1 and PW 2, who represented the management of the respondent company, instead of producing any record of allotment of garden quarter to the accused/petitioner and any other circumstantial evidence in support thereof, the learned trial Court ignoring the rule of best available evidence wholly and erroneously placed reliance on their evidence. Mr. Dasgupta, therefore, vehemently submits that no prosecution against the accused/petitioner is sustainable under Section 630 of the Companies Act in the backdrop of facts and circumstances of the case.
6. Per contra, Mr. N. Deka, learned counsel for the respondent, asserts that Section 630 of the Companies Act is attracted when an employee in service is retired or his legal heirs wrongfully retains property of a company. The accused/petitioner during trial of the case, nowhere denied allotment of the disputed garden quarter to her deceased husband, who was admittedly an employee of the Page No.# 3/5 respondent company and failure on her part to hand over the vacant possession of the said garden quarter, despite receipt of notice issued by the respondent and as such, the respondent/company has an explicit right to retrieve the admitted property which is belonged to it. Mr. Deka, learned counsel for the respondent, further submits that refusal to vacate the company's quarter, after death of the accused/petitioner's husband, constitutes a continuing offence, within the meaning of Section 472 Cr.P.C. and as such, the period of limitation under Section 468(2)(a) Cr.P.C. for taking cognizance of the offence under Section 630 of the companies Act, 1956 is inapplicable. Mr. Deka also submits that the accused/petitioner's plea of adverse possession over the property signifies admission of the respondent/company's right, title and interest thereon.
7. I have given due consideration to the above submission made by the learned counsel of both sides and perused records.
8. Section 630 of the Companies Act, 1956 reads as hereinbelow extracted:
"S. 630. Penalty for wrongful withholding of property. - (I) If any officer or employee of a company-
(a) wrongfully obtains possession of any property of a company; or
(b) having any such property in his possession, wrongfully withholds it or knowingly applies it to purposes other than those expressed or directed in the articles and authorised by this Act;
He shall, on the complaint of the company or any creditor or contributory thereof, be punishable with fine which may extend to [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 wrongfully obtained or wrongfully withheld or knowingly misapplied, or in default, to suffer imprisonment for a term which may extend to two years."
9. A reading of the above statutory provision in the Companies Act reveals that if any officer or employee of a company wrongfully obtains possession of its property or wrongfully withholds the property or knowingly applies the property for purposes not permitted by the Articles or the said Act, he shall be liable to criminal prosecution under the aforesaid Section of the companies Act. In such a prosecution, the proceeding is governed by the provisions of the Code of Criminal Procedure and a Presidency Magistrate or a Judicial Magistrate of the 1 st Class is empowered to try the offence.
10. In para 8 of the judgment rendered by the Supreme Court in Baldev Krishna Sahi Vs. Shipping Corporation of India Ltd., reported in (1987) 4 SCC 361, held as under-
"8. Section 630 of the Act which makes the wrongful withholding of any property of a company Page No.# 4/5 by an officer or employee of the company a penal offence, is typical of the economy of language which is characteristic of the draughtsman of the Act. The section is in two parts. Sub- Section (1) by clauses
(a) and (b) creates two distinct and separate offences. First of these is the one contemplated by clause
(a), namely, where an officer or employee of a company wrongfully obtains possession of any property of the company during the course of his employment, to which he is not entitled. Normally, it is only the present officers and employees who can secure possession of any property of a company. It is also possible for such an officer or employee after termination of his employment to wrongfully take away possession of any such property. This is the function of clause (a) and although it primarily refers to the existing officers and employees, it may also take in past officers and employees. In contrast, clause (b) contemplates a case where an officer or employee of a company having any property of a 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 Act. It may well be that an officer or employee may have lawfully obtained possession of any such property during the course of his employment but wrongfully withholds it after the termination of his employment. That appears to be one of the functions of clause
(b). It would be noticed that clause (b) also makes it an offence if any officer or employee of a 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. That would primarily apply to the present officers and employees and may also include past officers and employees. There is therefore no warrant to give a restrictive meaning to the term 'officer or employee' appearing in sub-Section (1) of Section 630 of the Act. It is quite evident that clauses (a) and (b) are separated by the word 'or' and therefore are clearly disjunctive."
11. Also, in Sunita Bhagat (Mrs) & Ors. Vs. Voltas Ltd. & Ors., reported in (1995) 3 SCC 732, the Supreme Court held that a petition under Section 630 of the Companies Act is maintainable against the legal heirs of a deceased officer or employee for retrieval of the Company's property wrongfully obtained or withheld, after death of such officer or employee. It was held that the said provision is not a penal provision in the strict sense, but a quasi-criminal provision providing speedy relief to the company to effectuate the intendment of the provision.
12. In the instant case, the respondent/complainant company examined 2 (two) witnesses and the accused/petitioner examined 3 (three) witnesses including herself as D.Ws. From the evidence of P.W. 1 Apurba Kumar Hazarika, the Manager of Aideobari Tea Estate and P.W. 2 Kiran Saikia, the Head clerk of the said Tea Estate, it appears that the petitioner's husband Lt. Babul Dutta was an employee of the said Tea Estate and he was allotted with the disputed garden quarter and after his death on 03.09.2009, his wife, the accused/petitioner refused to vacate possession of the quarter even after lapse of a period of 6 (six) months, granted on humanitarian ground, in spite of notice to vacate the quarter was served on her vide Ext. 1, the notice, dated 05.05.2011. The accused/petitioner has not Page No.# 5/5 denied the ownership of the quarter standing on the garden land with the respondent/company and continuation of her physical possession thereof as well as receipt of the notice vide Ext. 1 to vacate the same.
13. A perusal of the evidence of D.W. 1 Binoda Dutta, the accused/petitioner, D.W. 2 Anjali Dutta, a closely related witness of D.W. 1 and D.W. 3 Utpal Dutta, the brother-in-law of D.W. 1, shows that the disputed house was originally allowed to be constructed/raised by the respondent/complainant on their own cost and continued periodical repairing by them as there was no quarter available to the company. There is, however, no documentary or oral evidence to show that they constructed or raised the disputed house on their own except making a general statement in their evidence. In her statement under Section 313 Cr.P.C., the accused/petitioner stated that earlier she was a permanent worker in the said tea garden, but terminated her service and as she has no landed property, she has no place to move to from the quarter.
14. On scrutiny of the above evidence of both sides show that the disputed property is belonged to the respondent/company and it has not been handed over back to the said company in spite of service of notice, dated 05.05.2011, on the accused/petitioner to vacate the garden quarter/property since her husband died on 03.09.2009, continuing wrongful possession wilfully of the said property of the company. The question of adverse possession of the property in favour of the accused/petitioner against the respondent/company does not arise as admittedly the deceased husband of the accused/petitioner was an employee of the respondent/company and even if formal allotment of the quarter is disputed still he was apparently being a permissive possessor of the quarter, as such, after his death, his wife the accused/petitioner's continuation of possession of the same without authority amounts to continuation of the offence, which does not ripen to adverse possession thereon in a prosecution under Section 630 of the Companies Act. Therefore, this Court finds that the defence plea is wholly and completely baseless and there is no legally acceptable ground to interfere in the impugned judgments and orders.
15. Therefore, the revision stands dismissed.
16. The revision stands disposed off.
Send back the LCR.
JUDGE Comparing Assistant