Delhi District Court
Hindustan Vegetable Oil Corporation ... vs Balbir Singh on 2 February, 2012
IN THE COURT OF SH. GORAKH NATH PANDEY
ADDL CHIEF METROPOLITAN MAGISTRATE (Spl. Acts) CENTRAL
TIS HAZARI COURTS: DELHI
Hindustan Vegetable Oil Corporation Limited vs Balbir Singh
U/s 630 of Companies Act, 1956
CC No.1240/3/07
JUDGEMENT
(a) Serial no. of the case : 02401R0720642007
(b) Date of commission of offence: On/After 28.08.01 continuously
(c)Name of complainant : Hindustan Vegetable Oil
Corporation Limited through
Sh. AK Arora, Officer on Special Duty
6465, Satguru Ram Singh Marg,
Kirti Nagar, New Delhi
(d) Name, parentage, residence: Balbir Singh
ExDeputy Superintendent,
HVOC, Delhi Vanaspati Unit,
7674, GT Road, Subzi Mandi,
` Near Amba Cinema, Delhi07
(e) Offence complained of/ proved : U/s 630 of Companies Act
(f) Plea of accused : Pleaded not guilty.
(g) Final order : Acquitted
(h) Date of such order : 02.02.12
Date of Institution : 01.08.2007
Date of Reservation of Judgment: 28.01.12
Date of Pronouncement of Judgment: 02.02.12
Brief statement of the reasons for the decision:
1. The Complainant i.e. Hindustan Vegetable Oils Corporation Limited (hereinafter to be called as HVOCL) is a Government of India Company registered under section 619 of the Companies Act, 1956. Brief facts as stated Hindustan Vegetable Oil Corporation Ltd. vs Balbir Singh 1-13 in the complaint are that accused Balbir Singh, an ExDeputy Superintendent of the complainant, had joined the HVOCL as Public Relation Assistant in the year 1983 and served in various capacities. The accused remained in the service of the complainant uptill 28th February, 2000 and the last posting of the accused as Deputy Superintendent (Gate) was at Subzi Mandi where the complainant had a manufacturing unit for Vanaspati. It is alleged that by virtue of his employment, accused was alloted Quarter No.7674, GT Road, Subzi Mandi, Ghanta Ghar, near Amba Cinema, Delhi07. The said quarter stated to be consisted of one bedroom, one drawingcumdining, toilet, bath, kitchen etc situated at first floor. In terms of order of Hon'ble Supreme Court of India in the celebrated case of 'M.C. Mehta vs Union of India', the business operation of the complainant company was closed down and consequently the accused was called upon to vacate the staff quarter on or before 28.08.01. As the accused did not vacate the said quarter and is wrongfully withholding the same, this complaint is filed praying that accused may be directed to vacate and hand over the possession of the quarter in question to the complainant and be punished. It is also prayed that accused may be directed to pay the market/penal rate to the complainant for illegal occupation of the aforesaid quarter.
2. After summoning of the accused, a notice for the offence U/s 630 of the Companies Act was given to the accused in terms of Section 251 Cr.P.C., to which he pleaded not guilty and claimed trial.
Hindustan Vegetable Oil Corporation Ltd. vs Balbir Singh 2-13
3. In order to substantiate its allegation, the complainant examined one Mr. S. Mohanty, the Officer on Special Duty (OSD), as CW1. This witness has reiterated the facts of the complaint and stated that accused was posted in one of the Delhi Vanaspati Unit of the complainant as Deputy Superintendent and the quarter in question was allotted to the accused through letter dated 15.06.90. which is exhibited as mark 'B'. The witness further deposed that accused remained on the said post till February, 2000 and he was retaining the said quarter in the capacity of Deputy Superintendent. The witness also deposed that accused is occupying the entire residential block besides the quarter allotted to him. The witness deposed regarding the letter vide Ex. CW1/1 through which the accused was asked to vacate the aforesaid quarter in pursuance of the order of Hon'ble Supreme Court, the letter vide Ex. CW1/2 written by the accused stating therein that he would vacate the quarter after his dues cleared by the company, several letters/reminders as Ex. CW1/3 to Ex. CW1/5 sent to the accused for vacating the quarter in question.
4. Statement of accused was recorded u/s 313 read with section 281 Cr.P.C. In his statement accused admitted that he was the employee of complainant and complainant company is under liquidation. However, accused denied that quarter in question was allotted to him by virtue of his employment and stated that he has been staying in the said quarter since his birth and prior to this his father was having the possession of the said quarter since 1929. Accused further deposed that property/quarter in question is his personal property. Hindustan Vegetable Oil Corporation Ltd. vs Balbir Singh 3-13 Accused also stated that property in question stands in the name of Shyama Devi and him.
In support of his claim and contentions, accused examined one Mr. Jagdeep Singh, Patwari from SDM office, as DW1, who has proved on record true copy of Khasra Girdawari of Khasra No.773/66 and 771/69 as Ex. DW1/D1. The witness further deposed that this Ex. DW1/D1 was prepared on the application of accused vide Ex. DW1/D2.
5. I have heard the final arguments by Ms. Sonia Arora, advocate on behalf of the complainant and Sh. Atul Nagrajan, advocate on behalf of the accused at length and gone through the relevant materials on record. Learned counsel for the complainant has vehemently argued that the case of the complainant has been proved and relied on the judgment reported as '1993 Cri. L.J. 2791'. Written argument was also filed on behalf of the accused in support of argument that the complainant has failed to prove the offence u/s 360 of the Companies Act and the accused is not liable. Learned counsel for the accused has relied upon the judgments reported as 'AIR 1996, SC 1253', '(2011) 4 SCC 240', '(2010) 10 SCC 512', '(2011) 11 SCC 524', 'AUR 1991 Delhi 25', '1999 IAD (Delhi 739', 'The Sangli Bank ltd. vs Kanishka Investment Pvt. Ltd. & Ors decided on 19.11.1998', 'Om Shakthi SC/St And Minority vs M. Venkatesh S/o Muniyappa on 05 October, 2007', 'Baker Oil Toosl (India) Pvt. Ltd vs Baker Hughes Ltd'., '(1989) 4 SCC 531', 'AIR 1977 Allahabad 1', in support of his claim and contentions. The learned counsel for the accused Hindustan Vegetable Oil Corporation Ltd. vs Balbir Singh 4-13 also relied on the provisions of the Delhi Land Revenue Act, 1954 and the applicability of the act with respect to the premises in question.
6. Section 630 of the Companies Act, 1956 provides as under: "(1) If any officer of employee of a company
(a) wrongfully obtains possession of any property of a company; or
(b) having any such property in his possession, wrongfully withholds it or knowingly applies it to purposes other than expressed or directed in the articles and authorised by this Act, He shall, on the complaint of the company or any creditors or contributory thereof, be punishable with fine which may extend to [ten thousand rupees].
(2) The Court trying the offence may also order such officer or employee to deliver up or refund, within a time to be fixed by 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."
7. It is settled law that the scope of inquiry in a proceedings u/s 630 of Companies Act, 1956 is extremely restricted in law and the case is to be confined within those narrow ambit's without permitting any delay. The provision contained in Section 630 has been purposely enacted by the legislature with the object of providing a summary procedure for retrieving the property of the company. It is the duty of the Court to place a broad and liberal construction on the provisions in furtherance of the object and purpose of the legislation which would suppress the mischief and advance the remedy. It was held in "1989 (4) SC 514, Atul Mathur vs Atul Kalra and Another" that the purpose of enacting Section 630 is to provide speedy relief to a company when its property is wrongfully obtained or wrongfully withheld by an employee Hindustan Vegetable Oil Corporation Ltd. vs Balbir Singh 5-13 or an exemployee.
8. While dealing with the case U/s 630 of Companies Act, this court is to go by the following guidelines which are laid down by the Hon'ble Bombay High Court in "1993 CRI. L.J. 2791 " K.G.K. Nair v. P.C. Juneja".
"The provisions of S.630 are intended to provide speedy and efficacious redress in cases where company's property is wrongfully withheld and therefore the following guidelines are required to be observed:
(a) That the complaints be taken up and disposed of on a priority basis, the accent being on the avoidance of any unwarranted delay.
(b) That the trial Courts should address themselves to the fact that the scope of the enquiry in a proceeding under Section 630 is extremely restricted in law and, consequently, the parties be confined within those narrow ambits without being permitted to dilate or protract the proceeding through extraneous avenues.
(c) That no frivolous application for adjournment, stay of proceedings, etc., should be permitted by the trial Courts because the history of those proceedings indicate that each of such states is responsible for further litigation and years of delay. The pendency of other civil proceedings is no bar to the decision of an application under S. 630 which fact should be taken cognizance of in such situations.
(d) That the appeal, i.e., Court of Session, in the first instance, must judiciously scrutinize and vigorously examine the revision applications and appeal before granting stay orders.
(e) That applications for discharge on frivolous and untenable pleas are required to be speedily and effectively disposed of and are not to be used as handles for protracting the litigation".
9. In the case of "S.K. Sarma v. Mahesh Kumar Verma, AIR 2002 SC 3294 = 2002 AIR SCW 3827" the case pertained to Section 138 of Railways Act which is somewhat similar to section 630 of the Companies Act and which provides a procedure for summary delivery to railway administration, of property, detained by a railway servant. It was observed as follows:
Hindustan Vegetable Oil Corporation Ltd. vs Balbir Singh 6-13 "The object of the aforesaid Section is to provide speedy summary procedure for taking back the railway property detained by the railway servant or his legal representative. Properties include not only dwelling house, office or other building but also papers and any other matters. This would mean that the Section embraces in its sphere all unlawful detention of any railway property by the railway servant............ The word 'discharge' used in context is of widest amplitude and would include cessation of relationship of employer and employee, may be retirement, resignation, dismissal or removal. This Court in "Union of India v. B.N. Prasad [(1978) 2 SCC 462]" considered Section 138 and held that a close perusal of the section clearly reveals that the provisions has widest amplitude and takes within its fold not only a railway servant but even a contractor who is engaged for performing services to the railway, and the termination of his contract by the Railway amounts to his discharge, as mentioned in Section 138. The Court also observed that the said provision is in public interest and must be construed liberally, broadly and meaningfully so as to advance the object sought to be achieved by Railways Act........"
10.The incorporation of the complainant company is not disputed. One of the main contested issue in this case is the competency for filing of this complaint. The learned counsel for the accused has vehemently argued that this complaint is not filed by the duly authorized and competent person. As observed this complaint was filed on behalf of complainant by Mr. AK Arora, Officer on Special Duty (OSD), mentioning that he is duly authorized vide resolution dated 12.01.02 to file this complaint. As observed from the record, said Mr. AK Arora, OSD, never appeared before this court nor was examined at any stage during the proceeding. PW1 Mr. S. Mohanty has deposed that board resolution dated 12.01.02 is basically by virtue of designation of OSD and not by name. The said resolution dated 12.01.02 is marked as A during the examination of this witness. It is relevant to note that this mark A was also never produced in original in the court during the course of proceedings to the reasons best known to the complainant. Mark A is merely a photocopy, alleged Hindustan Vegetable Oil Corporation Ltd. vs Balbir Singh 7-13 minutes of meeting of board of directors dated 12.01.02. By virtue of mark A the complainant has filed this complaint and PW1 has deposed before this court. From the bare reading of item no.3 of mark A, it appears that PW1 has no right to depose before this court on behalf of the complainant. It is reiterated that neither any attorney/authority letter is filed by Mr. AK Arora or Mr. S. Mohanty nor the original minutes of meeting of the company was ever produced. Even the resolution in original was not produced. The alleged authorization mark E to file the petition is also not placed on record in original nor proved in accordance with law. PW1 even not produced the documents to prove that he was appointed as OSD by the board of directors and this factum was also admitted during the deposition of the witness during his cross examination. Admittedly the witness was not present in the board meeting. PW1 was never substituted as attorney/authorized representative of the complainant to prosecute the matter.
11.I have gone through the relevant provisions of Evidence Act, 1872. ChapterIII, Section 5658 deals with the facts which need not be proved. Section 58 mentioned that no fact needs to be proved in any proceeding which the party to or their agent agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings. As mentioned, the issue of competency for filing this complaint on behalf of the complainant as well as the competency of the witness to depose Hindustan Vegetable Oil Corporation Ltd. vs Balbir Singh 8-13 is main issue. It may also be said that it is sole issue to be decided as other ingredients of section 630 of Companies Act to be proved, appears to have existed on the basis of various correspondence between the parties. It is repeated that the accused has vehemently denied the competency and disputed the board resolution.
ChapterV of the Evidence Act contains the provisions regarding documentary evidence. The contents of the document may be proved either by primary or secondary evidence in view of Section 61. Admittedly in this case the complainant has not produced the primary evidence to prove, either mark A, mark E as well as other relevant documents. As contained in Section 64, the documents have to be proved by primary evidence except in the cases as mentioned in Section 65. It may be mentioned that Section 65 of Evidence Act is not applicable at all in the facts of this case. As mark A is the basis of filing of this complaint, it is needless to mention that the complainant was bound to prove the said document but the complainant has categorically failed to prove the same.
As held by the Hon'ble Supreme Court in 'SL Goswami vs. State of Madhya Pradesh, decided on 04.01.72, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpable false that burden does not be come any the less. It is only when this burden is discharged that if will be for the accused to explain or Hindustan Vegetable Oil Corporation Ltd. vs Balbir Singh 9-13 controvert the essential elements in the prosecution case which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution. Where the onus shifts to the accused, and the evidence on his behalf probabilities the plea he will be entitled to the benefit of reasonable doubt.
12.The manner of proof was emphasized by the Hon'ble Supreme Court of India in re '(2010) 10 SCC 512 (though in civil case)' mentioning that the attorney holder cannot depose or give evidence in place of his principal or the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge. It is was further mentioned that where the entire transaction is conducted through a particular attorney holder, the principal has to examine the attorney holder to prove the transaction, and not a different or subsequent attorney holder. In this case it is reiterated that PW1 has even failed to show the authority to depose on behalf of the complainant. In fact, in this case there is no attorney placed on behalf of the complainant authorizing for filing of the complaint or for deposing before the court. In view of the aforesaid facts and circumstances, I am of the considered view that the complainant has failed prove the competency to file this complaint on behalf of the complainant or deposing before this court by PW1.
Hindustan Vegetable Oil Corporation Ltd. vs Balbir Singh 10-13
13.The complainant filed this complaint alleging that instant quarter was allotted to the accused during his employment. From the various correspondence from the record, particularly the letters addressed by the accused to complainant, it appears that the quarter in question was allotted to the accused by the complainant. The accused has denied the identity of the quarter/property during trial and during his statement recorded u/s 313 Cr.P.C. contended that the complainant has no right as the property in dispute belongs to him and Shyama Devi. This contention of the accused appears to be without any ground and the accused failed to prove any evidence regarding title. Admittedly the accused was employee of the complainant. The DW1 examined by the accused in support of the ownership of the disputed property did not brought anything on record or lead any evidence to disprove that the complainant company is not the owner of the quarter in question. Moreover, the complainant has placed on record the certified copies of the title documents. Even otherwise The question of ownership is not at all required to be gone into the proceedings of section 630 of Companies Act. As per Section 116 of Evidence Act neither the tenant nor the licensee can be allowed to challenge the title of their landlord/licensor. The provisions of Section 116 of Evidence Act reads as under: Section 116 "Estoppel of tenant; and of licensee of person in possession - No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the land lord of such tenant had, at the beginning of the tenancy, a title to such immovable property; no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a Hindustan Vegetable Oil Corporation Ltd. vs Balbir Singh 11-13 title to such possession at the time such licence was given"
As held in "Bilas Kunwar vs Desraj Ranjit Singh, AIR 1995 Privy Council at p.98".
"A tenant who has been let into possession cannot deny his landlords title, however, defective it may be, so long as he has not openly restored possession by surrender to his landlord".
The estoppel u/s 116 is applicable upon the tenant as well as licensee. In this regard this court is supported by the law laid down in "Krishna Prasad Lal vs Barabani Coal Concern Ltd, AIR 1937 P.C. 251". In regard to the provisions of 116 of Evidence Act, Hon'ble Supreme Court has made the following observation in the case of "Bansraj Laltaprasd Mistra vs Stanley Parker Jones, AIR 2006 SC 3569 = 2006 AIR SCW 1073".
"14..... a person who comes upon any immovable property by the license of the person in possession thereof, shall not be permitted to dny such person and title of such possession at the time when such license was given".
In view of the aforesaid discussions it is held that the accused cannot be permitted to dispute the title/ownership of the complainant qua the quarter in question.
14.The employment of the accused is not disputed, therefore, no evidence is required to prove this fact and the relationship of employer and employee stands proved.
15.In view of correspondence of the record as well as contents of the complaint, the cessation of the services of the accused is established. Even otherwise, the cessation of service is not denied.
Hindustan Vegetable Oil Corporation Ltd. vs Balbir Singh 12-13
16.In view of the findings regarding the competency of the witness to depose before this court as well as regarding filing of the present complaint, I am of the considered view that the complainant has failed to prove the allegations against the accused made in the complaint in accordance with the provisions of law. Complaint is, therefore, dismissed. Accused is acquitted of charge leveled against him. Bail bond stands cancelled, surety is discharged, security, if any, be returned back after endorsement cancelled thereupon and file be consigned to the record.
(GORAKH NATH PANDEY) ACMM(SPECIAL ACTS) CENTRAL TIS HAZARI COURTS DELHI Announced in open court on 02.02.12 Hindustan Vegetable Oil Corporation Ltd. vs Balbir Singh 13-13