Karnataka High Court

Revanasiddappa S/O Kashappa ... vs The Manager P And A And Anr on 10 February, 2022

Bench: V Srishananda

                           1



           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 10TH DAY OF FEBRUARY, 2022

                       BEFORE

        THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.200056/2021


BETWEEN:

REVANASIDDAPPA
S/O: KASHAPPA KATTIMANI,
AGED 67 YEARS, OCC: RETD. EMPLOYEE,
R/O QUARTERS NO.TRR-13/1,
JAYPEE COLONY, SHAHABAD, TQ.CHITTAPUR,
DISTRICT. KALABURAGI-585228.
                                     ... PETITIONER

(BY SRI.SHRAVAN KUMAR MATH, ADVOCATE)
AND:

1. THE MANAGER P AND A
   JAYPEE CEMENT CORPORATION LIMITED
   (FORMERLY KNOWN ZAWAR CEMENT PVT. LTD)
   SHAHABAD TALUKA CHITTAPUR,
   DISTRICT KALABURAGI-585228.

2. THE STATE THROUGH SHAHABAD P.S.
   REPRESENTED BY ADDL. SPP
   HIGH COURT OF KARNATAKA
   KALABURAGI BENCH.
                                      ... RESPONDENTS

(BY SRI R.S.SIDHAPURKAR, ADVCOATE FOR R1;
SRI. GURURAJ V.HASILKAR, HCGP FOR R2.)
                              2



     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 R/W 401 OF CR.P.C. PRAYING TO
CALL FOR ENTIRE RECORDS IN CRIMINAL APPEAL NO.
42/2015 DATED 24.06.2020 FROM THE IV ADDL.
SESSIONS JUDGE AT KALABURAGI SITTING AT SEDAM
AND ALSO RECORDS IN CC.NO. 79/2013 DATED
30.04.2015 ON THE FILE OF THE CIVIL JUDGE AND JMFC
SHAHABAD AND ETC.,

     THIS CRIMINAL REVISION PETITION COMING ON
FOR ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING :

                        ORDER

Though the matter is listed for admission, by consent

of learned counsel for the parties, it is taken up for final

disposal.

2. The present revision petition is filed under

Section 397(1) read with Section 401 of Cr.P.C.

3. Brief facts of the case are as under:

The petitioner was an ex-employee of the first

respondent and as a part of employment perquisites, a

residential quarters was allotted (hereinafter referred to as

'said quarter') in J.P.Colony, Shahabad Taluka, Kalaburagi

District, and was given for his occupation. The petitioner

retired from the service, but, continued with the

occupation of the said quarter. The first respondent -

Company initiated action under Section 630(2) of the

Companies Act, 1956 (for short 'the Act') against the

revision petitioner herein. The petitioner challenged the

same before the learned Magistrate contending that the

first respondent - Company did not have right to initiate

action under Section 630(2) of the Act and sought for

dismissal of the petition.

4. The Trial Magistrate after considering the oral

and documentary evidence on record, recorded a

categorical finding that the revision petitioner was an

employee and post retirement, he cannot withhold the said

quarter and then allowed the petition filed under Section

630(2) of the Act by judgment dated 30.04.2015.

5. Being aggrieved by the said judgment, the

revision petitioner approached the District Court in

Criminal Appeal No.42/2015. The learned Judge in the

first appellate Court after securing the records and

considering the material evidence on record re-appreciated

the same and by judgment dated 27.12.2019 dismissed

the appeal and confirmed the order passed by the learned

trial Magistrate.

6. Being aggrieved by the same, the

accused/revision petitioner is before this Court in this

revision.

7. In the revision petition, following grounds have

been raised:

a) The status and locus standi of the complainant Jaypee Cement Corporation as against the revision petitioner in respect of occupation of the quarters was seriously disputed and denied. In this regard there are errors and defects in the power of attorney which is alleged to have been executed in favour of the complainant. This legal aspect has not been considered.

b) It is respectfully submitted that admittedly there is a written document between the revision petitioner and earlier company which is called as LEAVE AND LICENCE AGREEMENT. There is no relationship between the present revision petitioners with the complainant. In the absence of the relationship between the revision

petitioner and with the complainant the question of submitting the complaint as against the petitioner does not arise. The legal aspect has also not been considered by the court below. The said leave and licence agreement comes under the provisions of the transfer of property Act. As per the provisions of the transfer of property Act, after expiry of the period and also after completion of the services it cannot be termed as the possession of the petitioner is unlawful. The petitioner is in settled possession as per the judgment of the Hon'ble High Court. Moreover the provisions of the Karnataka Rent Act are applicable. Therefore he complainant has wrongly chosen the forum invoking U/Sec.630 of the companies Act, which is not at all applicable to the facts of the case. This aspect has not been considered by the courts below.

c) It is respectfully submitted that the revision petitioner has not at all committed any offence as invoked by the complainant U/Sec.630 of the companies Act. Therefore entire proceedings initiated by the complainant are not sustainable in the eye of law.

d) It is respectfully submitted that exhibit Legal notice U/sec.106 of the transfer of property Act. Admittedly the complainant before instituting the proceedings U/sec. 630 of the companies Act, invoked provisions U/sec. 106 of the transfer of the property Act. Admittedly the legal notice was not issued U/Sec. 630 of the companies Act, to the revisions petitioner. Therefore there is legal lacuna

error in the entire proceedings initiated by the complainant as against the petitioner. The judgments of the courts below are based on the assumptions and presumption which is not at all sustainable in the eye of law.

e) Some more grounds will be urged at the time of arguments.

8. Reiterating the above grounds, the learned

counsel for the petitioner Sri Shravankumar Math

appearing on behalf of Sri Ramachandra K., vehemently

contended that both the Courts have not appreciated the

materials on record in its proper perspective and therefore,

sought for allowing of the petition.

9. He further emphasized that the relationship

between the accused and the first respondent - Company

in occupying the premises was in the nature of leave and

licence agreement, which is a civil contract and no case

could have been initiated under the provisions of the Act

more so under Section 630(2) of the Act and sought for

allowing of the revision petition.

10. Per contra, the learned High Court Government

Pleader for respondent No.2 and Sri R.S.Sidhapurkar,

learned counsel for respondent No.1 supported the

impugned judgments.

11. In view of the rival contentions and having

regard to the scope of the revision petition, the following

point would arise for consideration:

"Whether the finding recorded by the Trial Magistrate confirmed by the first appellate Court that the accused/revision petitioner is guilty of the offence punishable under Section 630(2) of the Act is suffering from legal infirmity, error of jurisdiction, patent factual defect or perversity and thus called for interference by this Court?

12. In the case on hand, the revision petitioner

being an employee of the first respondent - Company and

the said quarters as a part of employment perquisite is not

in dispute. Admittedly, the revision petitioner retired from

service on 13.08.2005. Despite, repeated demands, the

accused/revision petitioner did not vacate the premises.

Ultimately, the first respondent - Company was

constrained to take recourse to law as is found in Section

630(2) of the Act.

13. In order to appreciate the material on record,

it is just and necessary for this Court to cull out Section

630 of the Act, which reads as under:

"630. Penalty for wrongful withholding of property.

(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 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 one 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."

14. Bear reading of the above provision, makes it

very clear that soon after the employee wrongfully

withholds the property of the company an action under

Section 630 of the Companies Act would lie before the

jurisdictional Magistrate. Since employee retired from

service he cannot withhold the said quarter any longer.

Hence, in the case on hand, the first respondent -

Company has resorted to such an action by filing a private

complaint. The learned Magistrate after full fledged trial

and after appreciating the case of the parties in detail,

recorded a categorical finding that as per Ex.P3, a demand

has been made to the accused to vacate and hand over the

said quarters to the first respondent - Company and the

same has not been complied by the revision petitioner and

passed an order as under:

            "Accused       is    directed       to    vacate     the
     quarter     bearing        No.TRR      13/1      situated    at

Jaypee Cement Colony, Shahabad and deliver the vacant possession to the complainant within 30 days from the date of this order.

In default of handing over the vacant possession of the premises to the complainant, the accused shall undergo simple imprisonment for a period of 30 days.

After expiry of stipulated period of 30 days, complainant is at liberty to take vacant possession of the above mentioned premises."

15. Being aggrieved by the same, the accused had

preferred an appeal before the District Court in Criminal

Appeal No.42/2015.

16. The learned judge in the first appellate Court

re-appreciated the material evidence on record and

dismissed the appeal filed by the revision

petitioner/accused. While so dismissing the appeal, the

learned judge in the first appellate Court has placed

reliance on the judgment of the Allahabad High Court in

the case of Smt.Beer Bala Gupta vs. XV Addl. Sessions

Judge, Meerut and Others reported in 2002 Crl. Law

Journal 3601 and also on the judgment of the Allahabad

High Court in the case of Smt. Asha Saxena (dead) by

LR's Vs. U.P. Electricity Board and Others reported in

2011 ILR 924 and dismissed the appeal.

17. In a similar matter, a coordinate Bench of this

Court in Criminal Revision Petition No.200047/2021 in the

case of Smt.Kashibai vs. the Manager P and A, Jaypee

Cement Corporation Limited has held as under:

"7. Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record, it is not in dispute that the husband of the petitioner herein was the employee of respondent No.1 and it is also not in dispute that he was appointed in the year 1990 and quarters which is a subject matter of the petition was allotted in favour of the husband of

the petitioner herein. The fact that he was retired in the year 2003 is also not in dispute. The only contention of the learned counsel for the petitioner is that dues are payable by the respondent- company in favour of the petitioner herein towards the wages of her husband. The learned counsel brought to the notice of this Court to the recovery certificate issued. The learned counsel for the respondent submits that whatever the claim they made before the Labour Officer was met and no other claim is pending. Having taken note of the factual aspects, the question before this Court is that when the wages or any benefit for which the petitioner is entitled, if it is determined, the same can be enforced before the appropriate forum. The fact that husband has retired from service and that now he is no more is also not in dispute. When such being the facts and circumstances of the case, the petitioner cannot squat on the property. In the case on hand, husband of the petitioner retired in the year 2003 and almost two decades have been elapsed. The private complaint was filed before the learned Magistrate in the year 2015 and an order was passed on 06.09.2016 giving thirty days time to vacate. The same was questioned in the criminal appeal. In the Criminal Appeal No.67/2016, the appellate Court reconsidered the matter on appreciation of evidence and confirmed the order of the Trial Court. Hence, the present revision

petition is filed. The scope of revision is limited and the main contention is that respondent- company has not paid dues payable to the husband of the petitioner. I have already pointed out, the same can be enforced if any order has been passed in favour of the petitioner in the appropriate forum and the petitioner cannot squat on the quarters allotted in favour of her husband even though he was retired in 2003 itself. The petitioner is squatting on the quarters from the last eighteen years without vacating the premises. I do not find any merit in the petition to invoke the revisional jurisdiction. The judgment quoted by the learned counsel for the petitioner is not applicable to the facts on hand. The Hon'ble Apex Court in the said judgment has discussed with regard to the breach of trust and the same is filed for breach of trust and comes to the conclusion that the matter is of civil in nature. But, in the case on hand, it is not the criminal breach of trust and civil dispute. The very proviso made under Section 630(2) of the Companies Act is when the employee failed to vacate the premises and continued in the possession unauthorizedly, the employer can invoke the provision under Section 630(2) of the Companies Act. Hence, I do not find any merit in the revision petition to set aside the order of the Trial Court as well as the order of the District and

Sessions Judge, passed in Criminal Appeal No.67/2016.

8. The Hon'ble Apex Court in Lalita Jalan's case referred to supra has made it clear that withholding the delivery of the property to the company and therefore, they are liable to be prosecuted under Section 630 of the Act and even further held that this will include anyone else who has been inducted in possession of the property by such persons who continue to withhold the possession of premises as such person is equally responsible for withholding and non-delivery of the property of the company. When such principles are laid down by the Hon'ble Apex Court and when the petitioner's husband being the former employee of the company is bound to quit and vacate the premises in favour of the respondent-company and the petitioner being the wife of former employee of the respondent cannot withhold the vacating of the quarters."

18. The facts of the present case are practically

similar to the facts found in Kashibai's case. It is also

pertinent to note that in Kashibai's case also the first

respondent is none other than the first respondent in the

present case. Therefore, this Court is of the considered

opinion that the revision petitioner is unable to make out a

case of perversity, legal infirmity, error of jurisdiction or

patent factual defect in the impugned judgments.

Accordingly, the above point is answered in the negative

and the following: