Rajasthan High Court - Jaipur
Ravindra Kumar vs State Of Rajasthan And Anr on 3 January, 2017
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR
BENCH JAIPUR
ORDER
S.B. Criminal Revision Petition No.718/2016
Ravindra Kumar S/o Sh.Shyam Gopal, R/o Flat S.Q.C.-14, Arfat Nagar,
J.K. Nagar, Kota Distt.Kota (Raj.)
Versus
1. State of Rajasthan through P.P.
2. M/s Arafat Petro Chemicals Pvt.Ltd., Arfat Nagar, Kota
Through S.H.A.Rijvi Power of Attorney Holder.
Date of Order ::::::: .01.2017
PRESENT
HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL
Mr.Piyush Sharma for the petitioner.
Mr.Anil Yadav, Public Prosecutor for the State.
Mr.Anurag Agrawal, for respondent No.2.
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BY THE COURT:
The accused-petitioner has filed this Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C. against the judgment and order dated 28.3.2016 passed by the Additional Sessions Judge No.5, Jaipur Metropolitan, Jaipur in Criminal Appeal No.5/2011 whereby the learned Appellate Court by dismissing the appeal filed by the petitioner affirmed and upheld the judgment and order dated 28.2.2009 passed by the Additional Chief Judicial Magistrate (Economic Offences), Jaipur in Criminal Complaint Case No.54/2008 whereby the trial Court convicted the petitioner for offence under Section 630 of the Companies Act and sentenced him for a fine of Rs.1,000/-. The petitioner was further directed by the trial Court to vacate the premises in dispute within a period of three months and hand over possession thereof to respondent-complainant and 2 to undergo simple imprisonment for six months in case he fails to do so.
Brief relevant facts for the disposal of this petition are that respondent-complainant M/s Arafat Petro Chemicals Pvt. Ltd. filed a complaint against the petitioner in the trial Court for offence under Section 630 of the Companies Act (hereinafter to be referred as "the Act") with the averment that the petitioner was an employee of M/s J.K.Synthetics Limited, Kota in which due to strike and agitation by the employee lockout was declared by the said company on 12.9.1997. It was further averred that in a suit filed by the said company, Hon'ble Bombay High Court appointed receiver and the unit of the company got remained in possession of the receiver from January 1998 to December 2004. As per the complaint the unit of M/s J.K.Synthetics Limited at Kota was purchased by the respondent-complainant company including the staff colony on 30.12.2004 and since then it is in possession and ownership of complainant-company. It was further alleged in the complaint that two tripartite agreements dated 9.10.2002 and 22.10.2002 were executed between the parties and as per these agreements services of employees/staff including that of petitioner were terminated with effect from 12.9.1997. It was further averred that petitioner was occupant of premises in dispute as an employee of M/s J.K.Synthetics Limited and, therefore, he was liable to vacate the premises as soon as his services were terminated with effect from 12.9.1997 but he failed to do so despite the fact that the complainant-company served a legal notice upon him to hand over the possession of the premises in dispute. It was averred in the complaint that by not vacating and handing over possession of the premises in dispute, the petitioner has committed offence under Section 3 630 of the Act for which he is liable to be convicted and sentenced and he is further liable to be directed to vacate it.
In support of the complaint respondent produced oral as well as documentary evidence whereas accused-petitioner in his statement under Section 313 Cr.P.C. denied the claim made by the respondent and specifically took a plea that a civil suit is pending in a Court in which stay order has been passed in his favour and proceedings are still pending before Board for Industrial Finance and Reconstruction (BIFR') and the tripartite agreement has been withdrawn. Learned trial Court after considering the submissions made on behalf of the respective parties and the evidence available on record convicted and sentenced the petitioner vide judgment and order dated 28.2.2009 against which petitioner filed Criminal Appeal No.5/2011 which was initially allowed by the Appellate Court vide judgment and order dated 28.3.2012. On S.B.Criminal Revision Petition No.626/2012 being filed by the respondent-complainant against this judgment and order, the same was allowed by the Co-ordinate Bench of this High Court vide order dated 2.9.2015 and the judgment and order dated 28.3.2012 was set aside and the matter was remanded back to the Appellate Court with a direction to reconsider the appeal and decide it afresh after considering the points raised by the respondent in the revision petition. After remand the appeal was reconsidered and the same was dismissed by the Appellate Court vide judgment and order dated 28.3.2016.
In support of the revision petition, learned counsel for the petitioner raised the following grounds:-
(1) Criminal Revision Petition No.626/2012 filed by the respondent-4
complainant was allowed by the High Court and matter was remanded back to the Appellate Court with a direction to decide the appeal afresh after considering the points raised by the respondent in the revision petition but the Appellate Court in derogation of the direction of this Court heard the appeal de novo whereas the appeal was remanded for a limited purpose only.
(2) As per Section 630 of the Act the respondent-complainant was not entitled to file a complaint for an offence under Section 630 of the Act as petitioner was not its employee and respondent-complainant never became his employer. The petitioner was an employee of M/s J.K.Synthetics Limited, Kota and was not party to the tripartite agreements dated 9.10.2002 and 20.10.2002 and, therefore, he was not bound with the terms and conditions upon which these two agreements were executed. As petitioner was not bound with the terms and conditions of these agreements it cannot be said that his services stood terminated with effect from 12.9.1997. No evidence is available on record to show that respondent company was ever creditor or contributory of M/s J.K.Synthetics Ltd.
(3) As petitioner was never employee of respondent-complainant he was not bound to vacate the premises in dispute which was allotted to him by M/s J.K.Synthetics Limited Kota in the capacity of its employee and, therefore, respondent was not entitled to file complaint for offence under Section 630 of the Act but the Courts below did not consider this aspect of the matter in a correct perspective.
(4) Even if for the sake of arguments it is admitted that petitioner was not entitled to remain in possession of the premises in dispute after he 5 attained the age of retirement as an employee of M/s J.K.Synthetics Limited, Kota, his possession at the most can be said to be as trespasser/encroacher and the proper remedy to obtain back possession was to file civil suit in a competent Court and not by way of a complaint under Section 630 of the Act.
(5) From the evidence available on record it is clear that some dues remained to be paid by M/s J.K.Synthetics Limited Kota to the petitioner which are still remains to be paid and unless the same are paid, petitioner is entitled to keep possession of the premises in dispute. (6) It is not the case of respondent-complainant that w.e.f. 12.9.1997, the company namely M/s J.K.Synthetics Limited is not in existence and at the most it can be said that the unit of the said company situated at Kota was taken over by the respondent and, therefore, the petitioner is employee of the said company and not of the respondent.
On the other hand, learned counsel for the respondent- complainant controverting the submissions made on behalf of the petitioner, submitted that none of the grounds raised on behalf of the petitioner is sustainable in law in the light of the evidence available on record and the reasons recorded by the learned Courts below in support of their respective orders. It was submitted that as per tripartite agreements dated 9.10.2002 and 22.10.2002 executed between M/s J.K.Synthetics Limited, respondent-complainant company and the union of employees of M/s J.K.Synthetics Limited, the unit of the said company situated at Kota alongwith all residential premises and liabilities was taken over by the respondent-company and services of employees/staff including that of petitioner were terminated with effect from 12.9.1997 and thereafter 6 petitioner was not entitled to keep in his possession the premises in dispute which were allotted to him by M/s J.K.Synthetics Limited and he was liable to vacate the same as soon as his services were terminated. It was further submitted that although petitioner in his personal capacity was not party to the aforesaid agreements but he being the member of the union of the employees was bound by the terms and conditions upon which the aforesaid agreements were executed between the parties and management of M/s J.K.Synthetics Limited was taken over by the respondent-company. It was further submitted that all dues were paid to the petitioner and he received them without any objection and no evidence has been made available by him showing that any dues are yet to be paid him. Otherwise also he cannot keep possession of the premises in dispute on that account. It was also submitted that refusal to vacate company's premises after termination of service is a continuing offence and, therefore, the complaint filed in the present case cannot be said to be barred by limitation as it is clear from the evidence available on record that petitioner failed to vacate the same despite legal notice was served upon him. It was submitted that in the present case respondent- complainant company stepped into the shoes of M/s J.K.Synthetics Limited by virtue of aforesaid agreements and the respondent-company having taken overall assets and liabilities of the aforesaid company is within its rights to file the present complaint.
In support of his submissions, learned counsel for the respondent relied upon several cases.
On consideration of submissions made on behalf of the respective parties and the material made available on record as well as the 7 evidence produced during the course of trial and also the reasons recorded by the Courts below in support of their respective orders, I do not find any of the grounds raised on behalf of the petitioner sustainable in law and, therefore, the revision petition is liable to be dismissed. It is an admitted fact that petitioner entered into possession of premises in dispute as an employee of M/s J.K.Synthetics Limited and his retirement was due in the year 1999 but it is also an admitted fact that due to strike and agitation in the Kota unit of the company lockout was declared with effect from 12.9.1997. From the evidence available on record it is further clear that as a result of intervention by Hon'ble Bombay High Court and BIFR the management of the said company at Kota including staff and residential colony and all liabilities of the said company was taken over by respondent-company. It is also clear that aforesaid two tripartite agreements dated 9.10.2002 and 22.10.2002 were entered between the parties and as per terms and conditions of these agreements services of all employees including that of petitioner were stood terminated with effect from 12.9.1997. Although, petitioner was not a party to these agreements in his personal capacity but it is not in dispute that union of employees of which petitioner was also a member was a party to these agreements. Being member of the employees union, petitioner is bound by these agreements and he cannot be allowed to say that being not party in personal capacity to these agreements he is not bound by the terms and conditions and his services cannot be said to have been terminated with effect from 12.9.1997. It is further clear from the evidence available on record petitioner received all dues as an ex-employee of M/s J.K.Synthetics Limited without any protest. No evidence has been produced on behalf of 8 the petitioner in support of his plea that stay order has been passed in his favour in a civil suit filed by him or proceedings before BIFR or any other competent authority are still pending or the aforesaid agreements were ever withdrawn. As the unit of M/s J.K.Synthetics Limited situated at Kota alongwith residential colony vested in the respondent-company and services of the petitioner stood terminated with effect from 12.9.1997, no right of any kind remained in petitioner to continue in possession of the premises in dispute and the same were liable to be vacated but petitioner failed to do so despite legal notice was served upon him. In the facts and circumstances of the case, respondent-company was legally entitled to file complaint under Section 630 of the Act. The complaint can also not be said to be barred by limitation as the offence for which it has been filed is a continuous offence.
Consequently, the revision petition being meritless is, hereby, dismissed. The stay application also stands dismissed.
(PRASHANT KUMAR AGARWAL) J teekam Reserved order