Orissa High Court

Anit Kumar Chakravarty vs Arun Krishna Rao Hazara on 28 June, 2024

         IN THE HIGH COURT OF ORISSA AT CUTTACK
                        CRREV No. 393 of 1998


Anit Kumar Chakravarty, an employee of Mahanadi Coal-fields,
S/o. Jatindranath Chakravarty, resident of Mahavirnagar, P.S. Orient
District-Jharsuguda

                                                          ...Petitioner
                              -Versus-
Arun Krishna Rao Hazara, S/o. Sri Krishna Rao Hazara, the then
Deputy Chief Engineer (Civil), G.M. Office, IB Valley Area, at
P.O./P.S.-Brajarajnagar, Dist.Jharsuguda.

                                                    ...Opposite Party

Advocates appeared in this case:
For the Petitioner:          Mr. Himansu Sekhar Mishra, Advocate

For Opposite Party:          None


CORAM:
HON'BLE THE CHIEF JUSTICE


JUDGMENT

28.06.2024

Chakradhari Sharan Singh, CJ.

1. The present criminal revision application has been filed under Section 397 of the Cr.P.C. The sole petitioner has put to challenge a judgment dated 12.08.1998 passed by the learned Additional Sessions

Judge, Sambalpur in Criminal Appeal No.87/28 of 1996-97 whereby he has confirmed a judgment dated 09.10.1996 passed by the learned S.D.J.M., Jharsuguda in ICC Case No.54 of 1994 whereby the petitioner stood convicted of the offence punishable under Section 630 of the Companies Act, 1956 and sentenced to a fine of Rs.500/- and in default, simple imprisonment for a month. The petitioner was also directed by the trial Court to deliver the possession of the quarters of the Mahanadi Coal-fields Limited ('MCL' in short), which he was occupying wrongfully, to MCL within one month and in default to undergo simple imprisonment for two months, in exercise of power under Section 630 (2) of the said Act.

2. Before I take note of the brief facts and the submissions advanced on behalf of the petitioner, I consider it apposite to place on record the entire order-sheet right from the date of admission of the present criminal revision application, which is as under:-

Order    Date of                            Order
 No.      order
 2.      10.9.98   Heard.

                   Admit the revision.

Call for the LCR and also issue notice to opp. Party.

Requisites, as undertaken, be filed by Tuesday (15.9.98). Notice be made returnable within four weeks thereafter.

3 10.9.98 Misc. Case No.512/98 Heard.

Issue notice as above, One set of process fee be accepted.

In the interim, stay realisation of fine as per the impugned judgment i.e. in 1 C.C. Case No.54/94 of the court of the SDJM, Jharsuguda and the judgment of the Addl. Sessions Judge, Sambalpur in Crl. Appeal No.87/28 of 1996-97.

It is stated in the impugned judgment that the petitioner has to deliver possession of the quarters to General Manager, Mahanadi Coal Field I.B. Valley within one month from the date of judgment. The appellate court judgment was delivered on 12.8.98. Learned counsel for petitioner states that petitioner is not in possession of that quarters and therefore he shall not be in a position to deliver the quarter. Because of such contention, it is directed that petitioner may not be asked to deliver possession of the quarter in terms of the impugned order. This order shall remain in force until further orders.

An authenticated copy of this order be given to the petitioner on payment of Rs.50/- as court-fee. 4 24.9.98 Accept the requisites filed and proceed accordingly. 5 10.4.2000 Learned counsel for the petitioner prayed for an adjournment for a week.

Learned counsel for the opposite party has no objection.

Hence list this case one week after.

6 13.5.2002 Misc. Case No.584/02 Heard.

Learned counsel for the revision-petitioner wants to obtain instruction and for that purpose prays for an adjournment till 17.5.2002.

Hence list this case on 17.5.2002.

7 17.5.2002 Misc. Case No.584 of 2002 This application has been filed for modification of the Order no.3 dated 10.9.1998, in which, taking note of the contention of the revision-petitioner that he is no more in possession of the house in question, it was directed that petitioner shall not be asked to deliver possession of the quarter in terms

of the impugned order of the Courts below. Mr. H. S. Misra, learned counsel for the revision-petitioner while not disputing that the petitioner is not in possession of the said quarter/house, states that the opposite party is not entitled to retain the possession of that quarter. Since the revision- petitioner has not claimed possession or his locus standi in that respect, therefore, this application could have been disposed of today. Since learned counsel for the revision-petitioner wants to file a counter affidavit and prays for taking up the matter after Summer Vacation (today being the last working day before Summer Vacation), the prayer is allowed. List this Misc. Case and the Civil Revision on 18.6.2002. In the meantime there is no bar for the opposite party to take legal recourse to get possession of the said house if the opposite party is legally entitled to the same. In that respect any help sought for by the opposite party from the District Administration may be appropriately considered. Any person claiming right over the said house may be heard by the district administration if such person shall raise objection to deliver possession in favour of the opposite party. 8 18.6.2002 Counter affidavit has already been filed by the revision petitioner.

On the request of the learned counsel for the petitioner, this case be listed on 20.6.02 for orders.

9 20.6.2002 Misc. Case No.584 of 2002 Heard.

List this application for peremptory hearing on coming Monday (24.06.2002) for modification of order as requested by learned counsel for the opposite party.

10. 28.06.2002 List this case on coming Monday (01.07.2002) as requested on behalf of Mr. H. S. Mishra, learned counsel appearing for the petitioner.

11. 1.7.2002 The LCR has been received and both the parties are ready and agree for disposal of the Crl. Revision. In

view of that, no useful purpose will be served by spending time for disposing of interim application. On consent of both the parties, the case be listed on 10th July, 2002 for peremptory hearing. The Deputy Registrar shall obtain instruction from Hon'ble the Chief Justice and to assign the revision to the appropriate bench. Rejoinder affidavit filed by the petitioner be kept on record.

So far as order no.7 dt. 17.5.2002 is concerned, learned counsel for the petitioner Mr. H.S. Mishra states that, that order may be misinterpreted by the opposite party before the local authorities by mentioning that direction has been given to this Court for eviction. That order is clear that if the opposite party shall approach the local authorities for possession, they shall consider the prayer in accordance with law and also shall afford opportunity of hearing to the parties and shall pass order in accordance with law. So this Court does not find any reason to modify the order dt.17.5.2002. 12 8.7.2011 Put up this matter after one week as prayed for by the learned counsel for the petitioner.

13 26.7.2011 Place this matter after ten days as prayed for by the learned counsel for the petitioner.

14 9.8.2011 Put up this matter in the 2nd week of December, 2011 as prayed for by learned counsel for the petitioner. 15 17.7.2014 List this case along with W.P.(C) No.10000 of 2014 on 22.7.14 for hearing as prayed for.

16 16.02.2017 It is stated at the Bar that the learned counsel for the petitioner Mr. H.S. Mishra is on accommodation today and the matter may be taken up on the next date.

As prayed for, list this matter on 2nd March 2017 in the weekly list.

17 03.01.2019 As prayed for by the learned counsel for the petitioner, list this case after one week.

18 16.01.2019 As prayed for by the learned counsel for the petitioner, list this case after one week.

19 29.03.2019 List this matter on 22.04.2019

20. 24.04.2019 On the prayer of the learned counsel for the petitioner, the

matter be listed on 03.05.2019.

W.P.(C) No. 10000 of 2014 be detached.

21 14.05.2019 None appears for the parties at the time of call.

List this matter after the ensuing summer vacation. 22 02.07.2019 Mr. H. S. Mishra, learned counsel appearing for the petitioner is present. None appears for the opposite party. List after one week.

Interim order passed earlier shall continue till the next date of listing.

23 19.7.2019 As prayed for by learned counsel for the petitioner, list this matter after one week.

24 25.03.2022 This matter is taken up through hybrid mode.

Let the scanned copy of the LCR be tagged to the case record.

List this matter in the week commencing 4th April, 2022.

25 22.04.2022 This matter is taken up through hybrid mode.

None appears for petitioner.

List this matter in the week commencing 25th April, 2022.

26 06.05.2022 This matter is taken up through hybrid mode.

List this matter in the week commencing 9th May, 2022. 27 13.5.2022 1. This matter is taken up through virtual mode.

2. None appears for the petitioner, list this matter after ensuing Summer Vacation.

28 26.10.2022 1. Learned counsel for the Petitioner submits that the sole Opposite Party is since dead.

2. Learned counsel appearing on behalf of the Opposite Party is absent on call.

3. Learned counsel for the Petitioner submits that he shall take instruction in order to ascertain if the Opposite Party intends to pursue the matter or not.

4. Accordingly, list this matter on 11th November, 2022.

29 28.11.2022 1. As reveals from the earlier order passed by this Court, the Opposite Party is not taking interest in pursuing the matter in the present Revision. As a last chance. List this matter on 15th December, 2022.

2. The interim order passed earlier shall continue till then. 30 15.12.2022 1. Heard learned counsel for the petitioner as well as the learned counsel for the State.

2. Hearing is concluded and judgment is reserved. 31 09.01.2023 List this matter on 10th January, 2023 under the headings "To be Mentioned".

31 10.01.2023 1. Heard Mr. H.S. Mishra, learned counsel for the Petitioner.

2. List this matter on day-after-tomorrow (12.01.2023). 32 12.01.2023 1. List this matter on 8th February, 2023. 33 23.02.2024 This matter is taken up through Hybrid mode.

2. On perusal of the previous orders, it transpires that the complainant-opposite party is no more.

3. Learned counsel for the petitioner is seeking adjournment.

4. Place this matter on 01.03.2024.

34 01.03.2024 This matter is taken up through Hybrid mode.

2. List this matter on 15.03.2024.

35 15.03.2024 This matter is taken up through Hybrid mode.

2. There is no representation on behalf of the opposite party.

3. Heard Mr. Himansu Sekhar Mishra, learned counsel appearing on behalf of the petitioner.

4. Hearing is concluded. Judgment is reserved.

3. The brief facts of the case are that the then Deputy Chief Engineer (Civil) Ib Valley Area (the opposite party herein) lodged a report with the Orient Police Station alleging that the MCL Management had got constructed 8 'C' type quarters by the side of Central Hospital, meant for the accommodation of senior doctors. The quarters were allotted to eligible doctors, some of whom had already

partially shifted to the said quarters and the others were in the process of final shifting. On 08.09.1994, in the morning, it was reported that in the previous night, some unknown persons had broken the locks of quarters No.3 and 4 and entered into those quarters, which were allotted to Dr. Saibal Mukhopadhyay (C.W.3) and Dr. J. Saha (C.W.4). Two banners, one board and one statue had been put by someone in one of the blocks. Based on the said written report, an FIR came to be registered giving rise to Orient P.S. Case No.31 of 1994. The police however submitted Final Form stating that the plots over which the quarters were constructed were forest land and the MCL had attached the said land without obtaining proper permission and had constructed two blocks of 'C' type quarters despite repeated objections by one Gajanan Saha and others. It was also reported that the land was in possession of one Gajanan Saha and others. Upon submission of Final Form, a notice was issued to the complainant by the Court where after he filed a complaint case registered as ICC Case No.54 of 1994 against the petitioner alleging commission of offences punishable under Sections 448 and 457 of the IPC and Section 630 of the Companies Act in relation to the said quarters No.C/3 and C/4. It was asserted that the petitioner was an employee of the MCL and the joint Secretary of Brajarajnagar Coalmines Workers Union affiliated to A.I.T.U.C.

4. Learned Sub-Divisional Judicial Magistrate ('SDJM' in short) took cognizance of the offence punishable under Section 630 of the Companies Act and issued summons to him. The petitioner appeared in the Court and faced trial. The prosecution examined four witnesses and brought on record by way of evidence certain

documents. Learned SDJM, after having evaluated the evidence adduced at the trial and submissions advanced on behalf of the parties, convicted the petitioner of the offence punishable under Section 630 of the Indian Companies Act by a judgment dated 09.10.1996. The petitioner preferred an appeal before the learned Additional Sessions Judge, Sambalpur putting to challenge the said order of conviction dated 09.10.1996, which gave rise to Criminal Appeal No.87/28 of 1996-97. The learned appellate Court confirmed the finding of conviction recorded by the learned SDJM.

5. Assailing the impugned judgments of the trial Court and the appellate Court, Mr. Himansu Sekhar Mishra, learned counsel for the petitioner has submitted that the Courts below miserably failed to appreciate that the complainant in the present case was not a Company and, therefore, based on complaint filed by an officer of the Company, the complaint for commission of offence punishable under Section 630 of the Companies Act was not maintainable. He has argued that the Complainant died during the pendency of the revision application and, therefore, no lis survives. He has also argued that the prosecution miserably failed to prove the essential ingredients to constitute an offence punishable under Section 630 of the Companies Act. For the said reason also, the findings of conviction recorded by the Courts below are unsustainable. He has argued that the petitioner was not named in the FIR and for the first time, he was named as an accused in the complaint petition filed by the opposite party. He has submitted that it cannot be deduced based on the evidence of C.W.1 that the land in question over which the quarters were constructed belonged to the

Company. Further, he did not depose that the complaint was filed by the Company or creditor or contributory thereto, which is a condition precedent for prosecution under Section 630 of the Companies Act. He has vehemently argued that in the absence of deposition by C.W.1 to the effect that he was duly authorised as per the Articles of Association of the Company to file the complaint case, he did not have a right to sue. He has also submitted that the documents filed by the opposite party to prove the allegation were insufficient for recording conviction.

6. I have perused the lower Court records and have given thoughtful consideration to the submission advanced on behalf of the petitioner.

7. The prosecution's witnesses are consistent on the point that the petitioner was an employee of MCL, which is a subsidiary Company of Coal India Limited under the Indian Companies Act, 1956. The quarters being quarters No.C/3 and C/4 were constructed by the MCL for allotment to Dr. Saibal Mukhopadhyay (C.W.3) and Dr. J. Saha (C.W.4). Both these witnesses in their depositions consistently supported the prosecution's case as regards construction of the said quarters by the MCL for allotment to the doctors. C.W.2, Deputy Chief Medical Officer of the Central Hospital of the MCL, also supported the prosecution's case of construction of the quarters by the MCL for allotment to the doctors, which were in fact allotted to the doctors.

8. On careful scrutiny of the depositions of C.Ws.1, 2, 3 and 4, it can be easily discerned that they proved that the petitioner, who was

the joint Secretary of Brajarajnagar Coalmines Workers Union affiliated to A.I.T.U.C., was unauthorizedly occupying the said quarters. I, thus, do not find any perversity in the concurrent findings of facts recorded by the learned SDJM and the learned Additional Sessions Judge that the quarters were constructed by the MCL and that the petitioner was in occupation of the said quarters. The opposite party clearly deposed in his evidence that MCL was the complainant in this case and that he was representing the complainant. It is not in dispute that a power of attorney executed in the favour of the opposite party to file the complaint case on behalf of the MCL was brought on record in the Court of learned SDJM. It is however the submission made on behalf of the petitioner that the said power of attorney was not filed at the time of filing of the complaint petition and, therefore, the complaint case itself was not maintainable and the cognizance of the offence punishable under Section 630 of the Companies Act was wrongly taken.

9. I do not find much force in the said submission, inasmuch as, it has not been controverted that the officer, who filed the complaint petition, was not authorised to file the complaint case.

10. In any view, it cannot be a ground based on which it can be said that the order taking cognizance itself was bad and, therefore, the entire prosecution stood vitiated.

11. Section 630 of the Companies Act, 1956 reads as under:

"Penalty for wrongful withholding of property.

630. (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 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."

12. Apparently, Section 630 applies to an officer or employee of the Company, who is liable to punishment under the said Section, if either of the two circumstances is proved, namely:-

i. wrongfully obtains possession of any property of a company; or

ii. 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 the Act.

12.1 Section 630 further postulates that such person can be prosecuted on a complaint of the company or any creditor or

contributory thereof, with a fine which may extend to one thousand rupees.

13. I do not find any flaw in the findings recorded by the trial Court and the appellate Court that the complaint was filed by the opposite party on behalf of the Company.

14. I reject the submission made on behalf of the petitioner that the entire prosecution against the petitioner should be consigned on the ground of death of the complainant. It is the petitioner's duty in a criminal revision against an order of conviction, which has been affirmed by the appellate Court, to establish that the findings of the Courts below are manifestly erroneous. A question of requirement of presence of the complainant in criminal revision in this circumstance may arise, if the Court decides to interfere with the findings of conviction based on complaint petition.