Delhi District Court
In The Present Revision Petition The vs Hari Kishan And Ors on 30 August, 2010
IN THE COURT OF MS. POONAM CHAUDHARY,
ASJ (CENTRAL01) : DELHI
Cr. No. 52/10
Bhanamal Gulzarilal Pvt. Ltd.
Vs.
Thakurmal Singh Tanwar
ORDER
1. In the present revision petition the petitioner has assailed the order of Ld. Trial Court dated 06.01.2010 whereby the Ld. Trial court allowed the application filed by respondent no. 1 and ordered that petitioner could not take possession of the portion which falls outside the red portion in site plan Ex. CW 1/G. The respondent no. 1 had since deceased.
2. Briefly stated the averments made in the petition are that the revisionist had filed a complaint against its employee u/s 630 of the Companies Act. Respondent no. 1 alleging that respondent no. 1 was given residential accommodation in the premises no. 10195/1, Jhandewalan, Delhi and was also made caretaker of the said property. It was further averred that the respondent no. 1/accused thereafter attempted to usurp the property of complainant more particularly, the one with respect of which he was made the caretaker by the revisionist.
3. It was further averred that the services of the respondent no. 1 accused were terminated and he was asked to vacate the premises but Cr. No. 52/10 1 he failed to do so and did not vacate the property of the revisionist and he wrongfully withheld the property of the Revisionist/ complainant .
4. It is further averred that respondent no. 1 was held guilty and convicted for the offence U/s 630 of the Companies Act vide judgment dated 16.11.2005 and he was sentenced vide order dated 8.12.2005 to pay fine and handover the possession of the property bearing no. 10195/1, Jhandewalan, Delhi to the revisionist/complainant on or before 09.01.2006 failing which he was to undergo SI for 2 years.
5. It is further alleged that respondent no. 1 preferred an appeal against the conviction and sentence. In the appeal the Respondent no. 1 did not take the plea that notice of accusation was given only with regard to a part of the premises whereas the respondent no. 1 had been asked to vacate entire property no. 10195/1, Jhandewalan, Delhi. It is further alleged that the conviction and sentence of respondent no. 1 were upheld by the Ld. Appellate Court. Thereafter the convict preferred a criminal revision against the dismissal of his appeal against the conviction and sentence which was dismissed by Hon'ble High Court.
6. It is further alleged that an objection was raised by respondent no. 2 before the Ld. Trial Court in execution proceedings which was allowed vide order dated 06.01.2010.
7. It is alleged that the impugned order dated 06.01.2010 is liable to be set aside on the ground that Ld. Trial Court failed to appreciate that Cr. No. 52/10 2 the respondent no. 1 was given residential accommodation in premises no. 10195/1, Jhandewalan, Delhi by virtue of his employment and as he failed to hand over the premises in dispute to Revisionist despite cessation from the service and the Ld. ACMM rightly held him guilty vide judgment dated 16.11.2005 and directing the respondent no. 1/ accused to handover the premises no. 10195/1, Jhandewalan, Delhi to the revisionist vide order on sentence dated 8.12.2005.
8. It is further alleged that Ld. Trial Court also failed to appreciate that order of conviction has been upheld by the Ld. Appellate Court and the revision petition filed by convict before Hon'ble High Court also been dismissed. Hence the conviction and sentence have attained finality.
9. It is further alleged that Ld. Trial Court failed to appreciate that so far as the alleged error in framing of charge is concerned. Section 464 IPC provides:
"Effect of omission to frame, or absence of, or error in, charge - (1) no finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charge, unless, in the opinion of the court of appeal, confirmation Cr. No. 52/10 3 or revision, a failure of justice as in fact been occasioned thereby."
10. It is further alleged that Ld. Trial Court to appreciate that the burden was on the Respondent no.1 to show that there has been miscarriage of justice in view of the error in framing of notice but respondent no. 1 had failed to show that failure of justice had occasioned thereby the error in notice u/s 251 Cr.P.C. does vitiate the judgment of conviction and sentence. It is prayed that the impugned order dated 06.01.2010 be set aside.
11. The contention of the respondent no. 2 is that impugned order does not suffer from any illegality.
12. I have the Ld. counsel for parties and perused the record.
13. In the revision petition the petitioner has to show that the order of the Ld. Trial Court has resulted in miscarriage of justice or it suffers from illegality or irregularity.
14. The revisionist had filed a complaint U/s 630 of the Companies Act against respondent no. 1, who has since expired. The averments made in the complaint were that the Revisionist/ complainant company registered under the Companies Act had given a portion of the built up portion of the premises no. 10165 Chowri Bazar, Delhi to the respondent no.1 by virtue of his employment. However the respondent attempted to usurp the property of the revisionist/complainant, therefore his services were terminated and he was asked to vacate the Cr. No. 52/10 4 premises. But the respondent/accused refused to do so.
15. Section 630 of the Companies Act which provides for penalty for withholding the property of the company by the employee of the company is as follows:
"(1) If any officer or employee of a company
(a) wrongfully obtains possession of any property of a company;or
(b) having any such property in his possession, wrongfully withholds it or knowingly applied it to purposes other than those expressed or directed in the articles and authorised by this act, he shall, on thecomplaint 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."
Cr. No. 52/10 5
16. In the proceedings under section 630 Cr.P.C. the complainant/ company is not required to prove ownership. The only essential ingredient of Section 630 is that the employee of the complainant wrongfully withholds the property of the complainant. The contention of the respondent is on the one hand was that one Salig Ram was the owner of the property and he allowed him to live therein as a caretaker on the one hand that one Badri Bhagat, Jhandewalan Society claimed to be the owner of the same.
17. It is pertinent to mention that in a complaint U/s 630 of the Companies Act complainant is not required to prove ownership of the property in question but it has to only prove that the property in dispute was let out to a person by virtue of employment with the company and he was withholding it despite termination of his services. The respondent had not denied his employment with the revisionist. He stated that in his statement under section 313 Cr.P.C. that notice was given to him by the revisionist. Moreover in the civil dispute suit No. 657/82 title Bhanamal Vs. Hari Kishan and Ors., the Respondent no. 1 admitted that he was given the premises because of his employment his evidence in this regard was proved as Ex. CW 1/F.
18. Moreover a revision petition was filed by the revisionist against judgment and the order of Ld. MM in case FIR No. 579/86 U/s 448 IPC in case titled State Vs. Nathu Ram and Ors. whereby the Ld. MM had passed an order u/s 456 Cr.P.C. directing that possession of the Cr. No. 52/10 6 premises in question i.e. property no. 10195/1, Jhandewalan, Pahar Ganj Delhi to be handed over to Mal Singh, Respondent no. 1 herein (since deceased). The Hon'ble High Court vide order dated 08.08.2008 set aside the order of the Ld. MM directing the restoration of the property no. 10195/1 to the complainant or his father Mal Singh/ accused and directed that the possession be handed over to the revisionist who was in possession and owner thereof. A SLP filed by the respondent no. 1 against the said order of Hon'ble High Court was also dismissed.
19. For the foregoing reasons, I am of the view that the revisionist which was a company registered under the Companies Act had allotted the premises in dispute to respondent no. 1 by virtue of his employment and the respondent no.1 had failed to vacate the same despite cessation of his services, thus impugned order dated 6.01.2010 is not sustainable as respondent no. 1 has no legal right over the property in question and the revisionist is entitled to obtain the possession of property no. 10195/1, Jhandewalan, Delhi in terms of the judgment and sentence dated 16.11.2005 and 8.12.2005. The impugned order is accordingly set aside. The revision petition is allowed. A copy of this order be sent to Ld. Trial Court. TCR be sent back. File be consigned to record room.
(POONAM CHAUDHARY) ASJ(Central01)/DELHI.
30.08.2010 Cr. No. 52/10 7