Allahabad High Court
Ram Prakash Pal vs State Of U.P. And Another on 7 May, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:73981 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 5913 of 2025 Applicant :- Ram Prakash Pal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anand Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.
1. Heard Sri Anand Kumar Srivastava, learned counsel for the applicant as well as Sri S.K. Singh, learned AGA for the State/opposite party no.1.
2. This application under Section 482 Cr.PC. has been filed by the applicant to quash the order dated 22.12.2023 of non bailable warrant issued by Special Chief Judicial Magistrate Kanpur Nagar in Complaint Case No. 435 of 2012 Under Section 630 of the Companies Act 1956 PS- Fazalganj, District Kanpur Nagar.
3. Learned counsel for the applicant submits that the applicant had earlier approached this Court while filing Application U/S 482 No. 1353 of 2013 in which on 05.07.2017, the following orders have been passed:
"This application has been filed with the prayer to quash the proceedings of complaint case no. 435 of 2012, under Section 630 of the Companies Act, 1956, Police Station Fazalganj (M/s. Juggilal Kamlapat Cotton Spinning & Weaving Mills Company Limited Vs. Ram Prakash Pal) pending in the court of Special Chief Judicial Magistrate, Kanpur Nagar.
Parties have exchanged their respective affidavits and are ready to argue the matter finally.
Heard Sri Manas Bhargava, learned counsel for the applicant, Sri Amitab Agarwal, learned counsel for the opposite party no. 2 and learned A.G.A. for the State.
Learned counsel for the applicant submits that complaint is filed after lapse of about 22 years and if the entire facts described in the complaint are taken into consideration, cause of action arose in the year 1990, complaint was filed in the year 2012 but no plausible explanation is given. It was further argued that it is not a continuing offence. Concerned Magistrate while passing the impugned order did not consider the true aspect of the matter and without applying judicial mind illegally passed the summoning order. It was also argued that entire proceedings started against the applicant are abuse of process of law.No notice was served to the applicant. Possession over the company building is not illegal. Applicant cannot be evicted hence prosecution cannot be permitted.
It was further argued by the learned counsel for the applicant that since applicant has not been retired, therefore, he is entitled to retain the possession of the quarter/house in question. Thus on this score also complaint cannot continue and is liable to be quashed.
Sri Amitabh Agarwal, learned counsel for the opposite party no. 2 argued that it is a continuing offence. Specific notice to join the services was given to the applicant but he did not join. Notice to vacate the quarter in question was also given. After fulfilling the legal formalities present complaint was filed. Summoning order was correctly passed against the applicant. In support of his submission learned counsel for the opposite party no. 2 placed reliance on the cases of Hon'ble Supreme Court in Gokak Patel Volkart Ltd. Vs. Dundayya Gurushiddaiah Hiremath and others reported in JT 1991 (1) 376 and Smt. Abhilash Vinod Kuamr Jain Vs. COX and Kings (India) Ltd. reported in JT 1995 (3) 528.
In this matter as is evident from the record that the applicant was working in the Company of the opposite party no. 2. Company remained closed during the lock out period but the applicant remained in occupation of the quarter in question allotted to him during the course of his employment. After lock out period a general notice is said to have been published asking the employees to join their duties. Prosecution case is also that despite notice the applicant did not join the duties. Thereafter the respondent opposite party no. 2 issued a legal notice to the employee to vacate the quarter in question. After expiry of the prescribed period when the quarter in question was not vacated the complaint in question was filed under Section 630 of the Companies Act (hereinafter referred to as the Act).
As far as the plea of the applicant that complaint was filed after lapse of 22 years and the offence under Section 630 of the Act is not a continuing offence is concerned the Hon'ble Supreme Court in Gokak Patel Volkart Ltd. (Supra) has clearly held that the offence under Section 630 of the Act is a continuing offence and consists of a course of conducts. If it is considered from another angle also, it consists of a continuous series of acts which endures after the period of consummation on refusal to delivered up or refund the property. It is not an instantaneous offence and limitation begins with the cessation of the criminal act. It will be a recurring or continuing offence until the wrongful possession is vacated or put an end to. The offence continues until the property wrongfully obtained or wrongfully withheld or knowingly withheld or knowingly misapplied is delivered or refunded to the company. Thus submission raised by the learned counsel for the applicant on this point is not acceptable.
As soon as after the end of the lock out period an advertisement was published in respect of reopening of the company and for joining the employees to start the work, the employees working in the company ought to have joined the company. In case the employees did not join the company they placed themselves in the category of persons as unauthorised occupant and they will be liable to be prosecuted for the offence under Section 630 of the Act. A prima facie case is clearly made out in the present matter. The word "retirement" used in Section 630 of the Act clearly attract in respect of the status of the present applicant also. Thus there is no illegality or infirmity in the summoning order and a prima facie case is made out. Prayer made in the application is not liable to be allowed.
In view of the aforesaid, the application is dismissed."
4. Learned counsel for the applicant further submits that the applicant has been obtained bail on 23.07.2017, however, the complaint was fixed for evidence on 22.12.2023. The applicant could not appear before the court, thus non-bailable warrants issued on 22.12.2023, thereafter on 21.10.2024, 07.11.2024 and 09.11.2024, the non-bailable warrants issued, an application was filed on 20.12.2024 for recalling of the order, the same was not pressed by the counsel for the applicant. He submits that the applicant shall appear before the court below and take appropriate proceedings.
5. Learned AGA on the other hand submits that he has no objection to the same.
6. Considering the submissions of the rival parties as well as stand taken by them, the application stands disposed of granting liberty to the applicant to appear before the court below and take appropriate proceedings as contemplated and permissible under law and this court has no reason to disbelieve the same with most expeditions strictly as per the law of the land without any delay.
Order Date :- 7.5.2025 A. Prajapati