AUTOMOBILE PRODUCTS INDIA LTD.versusDAS JOHN PETER & ORS.

                        (2010) 8 S.C.R. 764


A             AUTOMOBILE PRODUCTS INDIA LTD.
                                 V.
                    DAS JOHN PETER & ORS.
                (Criminal Appeal No. 1304 of 2010)

                           JULY 20, 2010
B
      [DALVEER BHANDARI AND DEEPAK VERMA, JJ.]

          Constitution of India, 1950 -Article 142- Inherent power
    of Supreme Court - Servant quarter attached to the
C   company's flat given to respondent-employee by virtue of his
    service, with a condition to hand over the possession on
    retirement - Retirement in 1992 - Possession not handed
    over by respondent - An undertaking given in 2000 to
    handover peaceful possession within one month - However,
D   possession still not given - Complaint filed by appellant-
    company under s.630 of Companies Act - Dismissed on
    technical ground by trial court - High Court upheld the order
    of trial court - On appeal, held: Courts below erred in
    dismissing the complaint on technical ground - There was
E   manifest illegality in the impugned orders which resulted in
    palpable injustice to the company curable under Article 142
    of the Constitution - It was incumbent on the respondent to
    honour the undertaking given in 2000 - Equity also not in
    favour of respondent as he showed adamant and dilatory
F   attitude - More than 18 years passed since his retirement and
    he still remained in possession of the quarter - Respondent
    directed to vacate the quarter- Equity- Companies Act, 1956
    - s.630 - Licence.

        The appellant-company filed a complaint, inter a/ia,
G under Section 630 of the Companies Act, 1956 against
    accused-respondent no.1. The allegation in the complaint
    was that respondent no.1 was working as a caretaker in
    the appellant-company to look after the company's flat.
    Respondent no.1 was alloted a servant quarter near
H                               764
AUTOMOBILE PRODUCTS INDIA LTD. v. DAS JOHN 765
              PETER & ORS.
garage belonging to the appellant-company by virtue of       A
his service in the company. He retired from service of the
appellant-company on 6.3.1992. However, he did not
vacate the quarter and instead gave its possession to his
daughter, accused-respondent no.2. A written
undertaking was said to have been tendered by                B
respondent no.1 on 5.1.2000 to the effect that he would
vacate the quarter within one month thereof. However, he
did not vacate the quarter. 'The complaint was thus filed
by the company through the factory manager on the
basis of the power of attorney executed by the company       c
on 31.12.2001. The trial court dismissed the complaint on
the ground that the power of attorney was a fictitious
document. The High Court rejected the appellant's
application for leave to appeal. Aggrieved, the company
filed the appeal.                                            D
    Allowing the appeal, the Court

     HELD: 1. The Power of Attorney was executed on
31.12.2001, and was scribed on a stamp paper purchased
on 18.4.2002. But it was notarised on 5.6.2002 and not on    E
5.6.2001 as was noted by the trial court. The Rubber
stamp seal put by the notary clearly depicted it as
5.6.2002. The examination of the originals of the
resolution dated 31.12.2001 as also Power of Attorney
executed in favour o,f the factory manager lead to th~       F
conclusion that the Power of Attorney was genuine and
it duly authorised the factory manager to file and
prosecute the complaint against the accused. [Paras 18,
19) [771-F-H]

    2.1. Admittedly, neither the trial court nor the High    G
Court had gone into the merits of the matter. A reading
of Section 630 of the Companies Act, 1956 makes it clear
that a criminal complaint seeking possession of the
servant quarter at the instance of company against the
                                                             H
    766    SUPREME COURT REPORTS                [2010] 8 S.C.R.


A accused was maintainable and cognizan~e thereof was
  rightly taken by the Magistrate but he committed a grave
  error in rejecting it on technical grounds, instead of
  deciding it on merits. [Paras 20, 23] [772-C; 773-E]

       2.2. It was not disputed that the accused no.1 was
8
  appointed as a caretaker to look after the flat of the
  appellant/company. It was further not disputed that
  accused no. 1 had retired from the company w.e.f.
  6.3.1992. At the time of entering into service, he had
  entered into agreement with the company on 22.9.1980,
C which specifically granted permission to the company to
  revoke the licence of the servant quarter at any time and
  to take the possession. On 5.1.2000, accused no.1 wrote
  a letter to the Chairman of the Company specifically and
  categorically agreeing to vacate the servant quarter by
D 31.1.2000. Thus, it was incumbent on his part to honour
  the same. However, he did not honour his own
  commitment rather defied it on various grounds. [Paras
  21, 27] [772-D-F; 775-C]

E      3. The provisions of Article 142 of the Constitution
  cast a duty on the Court to do complete justice between
  the parties. It is clear from the impugned orders that there
  was manifest illegality in the same and resulted in
  palpable injustice to the appellant/company curable under
F Article 142 of the Constitution as the said powers are
  inherent on the Supreme Court as a guardian of the
  Constitution. No useful purpose would be served if the
  matter is remitted to the Magistrate for trial on merits. This
  would be so because equity also did not swing in favour
  of the accused, who displayed adamant and dilatory
G attitude. From the date of retirement of accused no. 1,
  more than 18 years have passed by and he has been
  using the servant quarter without having any right to do
  so. No further mercv or sympathy should be shown to

H
AUTOMOBILE PRODUCTS INDIA LTD. v. DAS JOHN 767
              PETER & ORS.
such an accused. Thus, the order passed by the                      .;
Magistrate as also by the High Court cannot be sustained
in law. The accused is granted time to vacate the servant
quarter on or before 1.10.2010 and to hand over its
peaceful and vacant possession to the appellant-
company. [Paras 30-35] (775-G-H; 776-A-F]                           B

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1304 of 2010.

     From the Judgment & Order dated 14.07.2008 of the High
Court of Judicature at Bombay in Criminal Application No. 450       C
of 2007.

    Altaf Ahmed, Ankit Swarup, KK. Mani, P.J. Desai for the
Appellant.

     R.S. Hegde, Amit Wadhwa, P.P. Singh, Asha Gopalan              D
Nair for the Respondents.

    The Judgment of the Court was delivered by

     DEEPAK VERMA, J. 1. Leave granted.                             E
     2. Under the web of hypertechnicalities justice has taken
a back seat as is projected in the order dated 22.11.2006,
passed by Additional Chief Metropolitan Magistrate, Girgaum,
Mumbai in Crl. Case No. 38/S/2005 filed by appellant herein
against accused respondent No.1 and 2, whereby and                  F
whereunder the appellant's criminal complaint filed under
Section 406 read with Section 34 of the Indian Penal Code
[hereinafter referred to as "IPC"] and under Section 630 of the
Com~nies Act, 1956 (hereinafter refe. rred to as "the Act") was
disr{issed. Against the said order of dismissal, the appellant      G
herein filed an application before the learned Single Judge of
the High Court in Criminal Application No. 450 of 2007 seeking
leave to file the appeal which was also dismissed on 14.7.2008,
giving rise to filing of this appeal by the original complainant.
                                                                    H
    768     SUPREME COURT REPORTS                  (2010] 8 S.C.R.


A Unfortunately, the accused have also with vehemence
  supported hypertechnicalities adopted by the aforesaid two
  courts, to contend that no interference is called for in the light
  of the facts as found in the aforesaid two orders.

        3. Facts shorn of unnecessary details are mentioned
8
    herein below:

        4. Appellant is a Company (hereinafter shall be referred
  to as "the Company") duly registered under the Act and is
  carrying on business of manufacturing two and three wheelers'
C automobile products. Mr. V.S. Parthasarthy is the Factory
  Manager of the Appellant-Company and has been posted in
  Mumbai. A resolution has been passed by the Company on
  31.12.2001 to authorise Mr. V.S. Parthasarathy, Factory
  Manager to represent the company and to sign, verify, execute
D and deliver all vakalatnamas, pleadings, complaints, affidavits,
  declarations, petitions, written statements, rejoinders, papers,
  deeds, receipts, assurances etc. in a court of law. On the same
  day, he has been duly authorised by virtue of the Power of
  Attorney executed in his favour by the Appellant Company to
E file and prosecute the aforesaid complaint.

       5. On the complaint h<1ving been filed before the Additional
  Chief Metropolitan Magistrate, the same was registered. The
  allegation in the complaint is that company is having a flat
  situated at 17, Carmichael Road (behind Jaslok Hospital),
F Mumbai. One room near the garage (hereinafter shall be
  referred as the 'servant quarter') is also under the ownership
  of the company for being used by its servants. Even though,
  the complaint was filed under Section 406 I 34 of the IPC as
  also under Section 630 of the Act, but cognizance was taken
G by the trial court only under Section 630 of the Act.

        6. Respondent No. 1 (accused No.1 herein) was working
  as a caretaker with the Company to look after the flat. It is not
  in dispute that he has retired from the service of the Company
H with effect from 6.3.1992. The servant quarter was allotted to
 AUTOMOBILE PRODUCTS INDIA LTO. v. DAS JOHN 769
      PETER & ORS. [DEEPAK VERMA, J.]
  accused No. 1 by virtue of his service in the company.              A
  Obviously, after his attaining age of superannuation, he was
  supposed to have delivered its peaceful and vacant possession
. to the appellant/company. Instead of doing so, he gave its
  possession to his daughter, accused No.2, and shifted to
  Ambernath. As on date, it is accused No. 2, daughter of             B
  accused No.1, who is in actual physical possession of the said
  servant quarter.

      7. It is pertinent to note that a written undertaking is said
 to have been tendered by respondent no.1 on 5.1.2000 to the          C
 effect that he will vacate the servant quarter within one month
 thereof.

      8. Since despite serving several legal notices to the
 accused, they refused to hand over its peaceful vacant
 possession to the appellant, it was constrained to file the          D
 aforesaid complaint.

      9. Shri V.S. Parthasarthy, appeared as PW-1, and
 deposed before the Court circumstances under which accused
 No.1 was handed over possession of the servant quarter, where
                                                                      E
 he had worked as caretaker. After his retirement, despite
 promise made to the Company he has failed to vacate the
 servant quarter. His evidence has been dealt with extensively
 by the trial court but it is not required to be considered at this
 stage as Appellant's Criminal Complaint has been dismissed
 on technical ground.
                                                                      F

      10. Defence of the accused in short was that the complaint
 as filed by company through Mr. V.S. Parthasarthy is not
 maintainable inasmuch as the Power of Attorney dated
 31.12.2001, said to have been executed in favour of Mr. V.S.         G
 Parthasarthy is a fictitious document. The services of accused
 No.1 were never terminated and even after retirement he came
 to be re-appointed. Thus, he has a right to continue in its
 possession. As regards his undertaking given to the Chairman
 of the Company on 5.1.2000, wherein he specifically agreed           H
    770      SUPREME COURT REPORTS                 [2010] 8 S.C.R.


A to vacate the premises on or before 31.1.2000, he contended
  the same was not tendered voluntarily, meaning thereby the
  same was given under coercion, threat, undue influence, thus
  it was not binding.

       11. Learned trial court critically examined the Power of
8
  Attorney and came to the conclusion that the same was
  executed on 31.12.2001, was notarised on 5.6.2001, and the
  stamp papers were purchased on 18.4.2002, which gives rise
  to suspicion with regard to genuineness and correctness of
  Power of Attorney. Ultimately, it held that the said Power of
C Attorney is a fictitious document. Thus, on the strength of it.
  complaint could not be filed. As regards resolution of the
  company passed on 31.12.2001 was concerned, it was held
  that complainant failed to file the same, while he was in the
  witness box. Admittedly, the company faced financial crisis and
D has since been closed with effect from 21.1.1993 under the
  orders of BIFR.

       12. Ultimately, after appreciating oral and documentary
  evidence available on record, the following order came to be
E passed by Additional Chief Metropolitan Magistrate, Mumbai.

                "The accused No.1 Mr. Das John Peter and
          accused No.2 Ms. Grace Peter are hereby acquitted for
          the offence punishable u/s.630 of the Companies Act."

F              Their bail bonds, if any, stands cancelled."

       13. Feeling aggrieved thereof, the appellant filed an
  Application before the learned Single Judge of the High Court
  seeking leave to file appeal, against the order of acquittal of
G the accused. Unfortunately, the learned Single Judge did not
  examine the matter in proper perspective and fell into grave
  error, in refusing to grant leave and rejected the appellant's
  application, for prosecution of the accused under Section 630
  of the Act.

H         14. Feeling aggrieved thereof, this appeal has been
 AUTOMOBILE PRODUCTS INDIA LTD. v. DAS JOHN 771
      PETER & ORS. [DEEPAK VERMA, J.)
 preferred by the complainant company.                                  A

     15. We have accordingly heard Mr. Altaf Ahmed learned
Senior Counsel for the appellant, Mr. Sanjay Kharde for
respondent No.1 and 2 and Ms. Asha Gopalan Nair, for
respondent No. 3-State of Maharashtra at length. Perused the            B
record.

      16. At the outset, we inquired from learned counsel for the
 accused, whether he would be ready and willing to vacate the
 premises, provided reasonable and sufficient time is granted
 to them but learned counsel vehemently opposed any such                C
 suggestion and contended that the complaint has rightly been
 dismissed on technical grounds which went to the root of the
 matter, therefore no interference is called for.

        17. With an intention to satisfy ourselves with regard to the   D
  correctness, genuineness and authenticity of the resolution
  dated 31.12.2001 passed by appellant company in favour of
  Mr. V.S. Parthasarthy and the Power of Attorney of the even
  date, we requested the appellant to produce the originals for
· our perusal. They have produced the same before us. We have
                                                                        E
  critically and with microscopic eye examined the same. After
  doing so, we do not find either of the two documents can be
  termed as fictitious or manufactured documents so as to oust
  the appellant from the arena of justice.

      18. No doubt, it is true that Power of Attorney was executed      F
 on 31.12.2001, but has been scribed on a stamp paper
 purchased on 18.4.2002. But it has been notarised on 5.6.2002
 and not on 5.6.2001 as has been noted by the trial court. The
 Rubber stamp seal put by the notary clearly depicts it as
 5.6.2002.                                                              G

      19. Thus, after going through the same, it leaves no
 shadow of doubt in our mind that the same are genuine and
 duly authorised Mr. V.S. Parthasarthy to file and prosecute the
 complaint against the accused. We had also passed on the               H
    772       SUPREME COURT REPORTS                  [2010] 8 S.C.R.


A originals to the learned counsel for the respondent-accused to
  satisfy himself but still, after going through the same he
  persisted in his arguments tooth and nail that the date of Power
  Attorney in fact is 5.6.2001 and not 5.6.2002. However, we are
  unable to agree to the argument as advanced by the learned
B counsel for the accused as he is trying to stretch it beyond our
  comprehension.

       20. Admittedly, neither the Trial Court nor the High Court
  have gone into the merits of the matter. Thus with an intention
C to do complete justice to the parties, we have heard the counsel
  for the parties at length and gone through the merits of this
  appeal.

           21. It is not in dispute that accused No. 1 was appointed
    as a caretaker to look after the flat of the appellant/company
D   at 'Kamal Mahal' Co-operative Housing Society Ltd.,
    Carmichael Road, Bombay 400 026 owned and possessed by
    the Company. It is further not in dispute that accused No. 1 had
    retired from the company w.e.f. 6.3.1992. At the time of entering
    into service, respondent No. 1 had entered into agreement with
E   the company on 22. 9.1980, which specifically granted
    permission to the company to revoke the licence, of the servant
    quarter at any time and to take possession. It is further not in
    dispute that on 5.1.2000 accused No.1 wrote a letter to the
    Chairman of the Company specifically and categorically
F   agreeing to vacate the servant quarter by 31.1.2000. However,
    he did not deem it fit and proper to honour his own commitment
    rather has defied it on various grounds. To appreciate the
    arguments as advanced by learned senior counsel Shri Altaf
    Ahmed for the appellant, it is necessary to examine the relevant
G   provisions of the Act under which, the company's complaint was
    filed.

          22. Section 630 of the Act reads as under:

          "630. Penalty for wrongful withholding of property property.-
H         (1) If any officer or employee of a company.-
AUTOMOBILE PRODUCTS INDIA LTD. v. DAS JOHN 773
     PETER & ORS. [DEEPAK VERMA, J.]

    (a) wrongfully obtains possession of any property of a           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                    B
    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.
                                                                     c
    (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      D
    to two years."

      23. A reading of the aforesaid provision makes it clear that
a criminal complaint seeking possession of the servant quarter
at the instance of company against the accused was
maintainable and in our opinion cognizance thereof was rightly       E
taken by the Magistrate but committed a grave error in rejecting
it on technical grounds, instead of deciding it on merits.

     24. Learned counsel for appellant has also placed reliance
on Section 621 of the Act, dealing with offences against the         F
Act to be cognizable only on complaint by Registrar, share
holder or government. To appreciate the arguments in this
regard, the said Section 621 of the Act is reproduced
herein below:

     "621. Offences against Act to be cognizable only on             G
     complaint by Registrar, shareholder or Government.

     (1) No court shall take cognizance of any offence against
     this Act, which is alleged to have been committed by any
     company or any officer thereof, except on the complaint         H
    774       SUPREME COURT REPORTS                   [2010] 8 S.C.R.


A         in writing of the Registrar, or of a shareholder of a
          company, or of a person authorised by the Central
          Government in that behalf:

          Provided that nothing in this sub-section shall apply to a
          prosecution by a company of any of its officers:
B
          Provided further that the court may take cognizance of
          offence relating to issue and transfer of securities and non-
          payment of dividend on a complaint in writing by a person
          authorised by the Securities C:xchange Board of India.
c
          (1A) Notwithstanding anything contained in the Code of
          Criminal Procedure 1898 (5 of 1898), where the
          complainant under sub-section (1) is the Registrar or a
          person authorised by the Central Government, the personal
D         attendance of the complainant before the Court trying the
          offence shall not be necessary unless the Court for the
          reasons to be recorded in writing requires his personal
          attendance at the trial.

          (2)   Sub-section (1) shall not apply to any action taken
E         by the liquidator of a company in respect of any offence
          alleged to have been committed in respect of any of the
          matters included in Part VII (sections 425 to 560) or in any
          other provisions of this Act relating to the winding up of the
          companies.
F
          (3) A liquidator of a company shall not be deemed to be
          an officer of the company, within the meaning of sub-
          section (1 )."

       25. However, it is not necessary to examine the
G applicability of the aforesaid Section 621 of the Act to the
  present case as it appears to be doubtful to categorise
  accused No. 1, who was admittedly working as caretaker, as
  an officer of the company. Thus, we deem it fit and proper to
  leave the said question open at this stage.
H
AUTOMOBILE PRODUCTS INDIA LTD. v. DAS JOHN 775
     PETER & ORS. [DEEPAK VERMA, J.]
     26. We have carefully examined the originals of the              A
resolution dated 31.12.2001 as also Power of Attorney of the
even date executed in favour of Mr. V.S. Parthasarthy and the
irresistible conclusion is that the same are genuine and do not
come under the cloud of suspicion at all.                    ·
                                                                      B
     27. That being so, in the light of the admitted position that"
accused No. 1 retired in the year 1992 and has also given an
undertaking to the Company as far as back as 5.1.2000
categorically admitting and agreeing to vacate the premises on
or before 31.1.2000, it was incumbent on his part to honour the
same.
                                                                      c
     28. The letter of the accused No. 1 dated· 05.01.2000 is
reproduced herein below:-

            "ln regard to the above subject I the undersigned         D
     would be grateful to you if you would give me one month
     time till January 31st 2000 to vacate the premises that was
     given to me while I was in service with your esteemed
     organisation."

                                                 Das John Peter       E

     29. Even after taking into consideration all the defences
taken by accused, their eviction from the servant quarter is
inevitable. Since he has committed default of his own promise,
we have no other choice or option but to direct the accused           F
persons to vacate the premises by or before 1st October, 2010
and to hand over its peaceful vacant possession to the
Company.

     30. We have done so exercising the powers conferred on
us by virtue of provisions of Article 142 of the Constitution which   G
cast a duty on us to do complete justice between the parties.

     31. It is clear from the impugned orders that there is
manifest illegality in the same and have resulted in palpable
injustice to the Appellant/Company curable at this stage under        H
    776       SUPREME COURT REPORTS                 [2010] 8 S.C.R.


A   Article 142 of the Constitution as the aforesaid powers are
    inherent on this Court as guardian of the Constitution.

         32. According to us, no useful purpose would be served
    even if the matter is remitted to Magistrate for trial on merits.
    VVe hold so because equity also does not swing in favour of
8
    the accused, who have displayed adamant and dilatory attitude.

      33. From the date of retirement of accused No. 1 till date,
  more than 18 years have pasc;ed by and he has used the
  servant quarter without having any right to do so. No further
C mercy or sympathy can be shown to such an accused.

         34. Thus, looking to the matter from all angles we are of
    the considered opinion that the order passed by Metropolitan
    Magistrate as also by the High Court cannot be sustained in
0   law. Same are hereby set aside and quashed. This we have
    to do to give quietus to the litigation which had commenced long
    years back.

       35. Appellant's complaint filed under section 630 of the Act
  is hereby allowed and accused is granted time to vacate the
E servant quarter as mentioned hereinabove on or before
  1.10.2010 and to hand over its peaceful and vacant possession
  to the appellant company. In default thereof accused shall have
  to suffer imprisonment for a term of one year and fine of Rs.
  10,000/-. In default of payment of fine, the accused shall suffer
F further imprisonment of one month.

         36. We hope and trust at least good sense shall prevail
  on the accused and instead of running the risk of being sent to
  jail, they would abide by the first part of the order and do the
G needful. If the accused persons fail to do so then the appellant
  shall be entitled to take police help to get our order executed.

           37. Appeal stands allowed accordingly.

    D.G.                                            Appeal allowed.
H