IN THE COURT OF SH. [ENTITY] ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (SPL. ACTS): CENTRAL: TIS HAZARI COURTS, DELHI M/s [ENTITY] Ltd. vs [ENTITY] CC No. 624/3 U/[SECTION] of [ACT] JUDGEMENT
(a) Serial no. of the case : 02401R1028132003 (b) Date of commission of offence: On and after 30.11.1996 continuously (c) Name of complainant : M/s [ENTITY] Limited Having its registered office At: Balgheria Calcutta and Regional Office at: 508, Surya Kiran Building, Kastoorba Gandhi Marg, New Delhi01 (d) Name, parentage, residence: [ENTITY] S/o Sh. [ENTITY] R/o Q.No.74 New Birla Lines, PO Birla Lines, Kamla Nagar, Delhi. (e) Offence complained of/ proved : U/[SECTION] of [ACT] (f) Plea of accused : Pleaded not guilty. (g) Final order : Convicted. (h) Date of such order : 03.10.11 Date of Institution : 18.08.03 Date of Reservation of Judgment: 21.09.11 Date of Pronouncement of Judgment: 03.10.11
Brief statement of the reasons for the decision:
1. The complainant company, M/s [ENTITY] Ltd has filed the present complaint u/[SECTION] of the [ACT], against the accused, alleging that on 03.03.66 accused [ENTITY] had joined the services of erstwhile company M/s Birla Cotton Spinning and Weaving Mills Ltd. and on 07.02.77, by virtue of his employment, he was allotted the quarter no.74, New Birla Lines, PO Birla Lines, Kamla Nagar, Delhi07, as a licensee. It is further alleged, that by virtue of a scheme of arrangement dated 03.01.1983, arrived at between the present complainant and M/s Birla Cotton Spinning & Weaving Mills Ltd. and pursuant to the order passed by Hon'ble Delhi High Court, the present complainant became the owner of the concerned Birla Mill Unit where the accused was working along with all its employees and the properties, including the property in question. Pursuant to the said arrangement, all the agreements, more particularly, licence agreement entered between M/s Birla Cottons Spinning and Weaving Mills Ltd. with third parties are deemed to be entered between the complainant company and those third parties. Complainant company also acquired all the rights, titles, interests in the properties of the mill and the housing colonies of the mill unit of the said M/s Birla Cottons Spinning and Weaving Mills Ltd. and all the employees of the said mill unit of M/s Birla Cottons Spinning and Weaving Mills Ltd., became the employees of the present complainant company pursuant to the said scheme of arrangement. In terms of order of Hon'ble Supreme in [CASE NUMBER], the working of the mill in Delhi was closed w.e.f. 30.11.96. As such, accused ceased to be in services of complainant company from 30.11.96. Thereafter, accused joined the services of M/s Chambal Fertilizer, at Baddi (H.P.) on 10.04.1999, however, accused also ceased to be the employee of that mill at Baddi w.e.f 12.08.2000. It is alleged that despite cessation of his services accused did not vacate the quarter allotted to him and is wrongfully withholding the quarter. Thus, it is prayed that accused may be directed to hand over the possession of the quarter in question and he be punished for the offence punishable u/[SECTION] of the [ACT].
2. After summoning of the accused for the said offence, a notice for the offence U/[SECTION] of the [ACT] was given to the accused in terms of [SECTION] [ACT], to which he pleaded not guilty and claimed trial.
3. In order to substantiate its allegation, the complainant examined its attorney Sh. [ENTITY] as PW1. PW1 deposed that he is attorney of the complainant company and duly authorised to sign, verify the complaint and to depose in the present case vide resolution Ex. PW 1/1 and power of attorney Ex. PW1/2. He also proved the certificate of incorporation Ex. PW1/3 and order of Hon'ble High Court/scheme of arrangement Ex. PW1/4 through which the complainant company became the owner of the aforesaid quarter as well as employee of the accused and deposed that the accused was allotted the said quarter in question vide allotment letter Ex. PW1/5. He further deposed that the accused ceased to be the employee of complainant company w.e.f. 30.11.1996, as such, he was liable to vacate the quarter but he failed to do so.
4. Statement of accused was recorded u/[SECTION] [ACT] in which accused denied that on 30.03.96 he joined the aforesaid company and stated that he was working in the company M/s Birla Cottons Spinning and Weaving Mill Ltd. since 14.05.64. He further denied that the quarter in question was allotted to him and submitted that his brother in law namely [ENTITY] was allotted the quarter in question and he was residing with him. Accused did not deny that his service came to an end w.e.f 30.11.96, however, he stated that his service was wrongly terminated.
5. I have heard the Ld. Counsel for the complainant company as well as accused and gone through the record of the case. I have also gone through the written arguments as well as citations filed on behalf of parties.
6. While dealing with the case U/[SECTION] of [ACT], this court is to go by the following guidelines which are laid down by the Hon'ble Bombay High Court in the following case: "[PRECEDENT] " [PRECEDENT]"
The provisions of [SECTION] 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] 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 [SECTION] 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".
7. For proving the offence u/[SECTION] of [ACT], complainant company was required to establish on record the following ingredients:
(a) That the complainant company is registered under the [ACT];
(b) That the complainant company is the owner of quarter in question and there exists/existed the relationship of employer and employee between the complainant company and accused;
(c) That the accused was allotted quarter in question on licence basis;
(d) That the accused was ceased to be employee of the complainant company
(e) That the accused has wrongfully withheld the quarter in question. Point (a) "That the complainant company is registered under the [ACT]"
8. It is clear from the ex. PW1/3 that the Complainant Company is registered under the [ACT]. Even otherwise factum of complainant company's incorporation is not in dispute. Point(b) That the complainant company is the owner of quarter in question and there exists/existed the relationship of employer and employee between the complainant company and accused;
9. In his statement recorded u/[SECTION] [ACT] accused admitted that he was the employee of M/s Birla Cotton Spinning and Weaving Mills. Accused also did not deny that his service came to an end w.e.f. 30.11.96, however, he stated that his service was wrongly terminated. PW1 proved on record the scheme of arrangement Ex. PW1/4 and stated that by virtue of this scheme of arrangement the complainant company became owner of the quarter in question as well as employer of accused. However, Ld. Defence counsel argued that complainant is not the owner of the quarter in question, therefore, complainant has no locus standi to file the present complaint. He further argued that in pursuance to the aforesaid order the complainant was required to do certain acts and a certified copy of the order of Hon'ble Delhi High Court was to be submitted with ROC, Calcutta. However, they have not fulfilled these requirements, therefore, this order has no application and complainant company cannot claim ownership by virtue of this order. This court does not find any substance in the submissions of Ld. Defence counsel. It is clear from the perusal of order the Hon'ble High Court that no further act was required even otherwise. This scheme of arrangement Ex. PW1/4 has not been challenged hence it became final. Relevant para of the order of Hon'ble High Court reads as under which clarifies that the complainant company had become the owner of M/s Birla Cottons Spinning and Weaving Mills Textiles as well as quarter in question.
(1)That all the property, rights, and powers of the said transferor company specified in the first, second and third parts of the Schedule II hereto and all the other property, rights and powers of the said transferor company be transferred without further act or deed to the said transferee company and accordingly the same shall, pursuant to [SECTION] of the [ACT], be transferred to and vest in the said transferee company for all the estate and interest of the said transferor company for all the estate and interest of the said transferor company therein but subject nevertheless to all charges now affecting the same, and (2) That all the liabilities and duties of the said transferor company by transferred without further act or deed to the said transferee company and accordingly the same shall, pursuant to [SECTION] of the [ACT], be transferred to and become the liabilities and duties of the said transferee company: and (3) That all proceedings now pending by or against the said transferor company be continued by or against the said transferee company; and (4) all contracts, deeds, bonds, agreements and instruments of whatever kind or nature relating to the said units of M/s Birla Cottons shall continue to be in full force and effect against or in favour of [ENTITY] as the case may be and enforced as fully and effectively as if [ENTITY] instead of Birla Cotton had been a party thereto.
10.Thus, it is clear from the perusal of the order passed by Hon'ble Delhi High Court that complainant company has become the owner of all the properties of the unit of M/s Birla Cottons Spinning and Weaving Mills Ltd. without any further Act or Deed and said quarter stood transferred and vested with the complainant company for all the estate and interests. Hence, it is clear that after the order of Hon'ble High Court the present complainant became owner of the and quarter in question. Thus, it is clear that after the mill was taken over by the present complainant, accused remained in the employment of M/s [ENTITY] Ltd. but nonelse. Thus, relationship of employee and employer as well as ownership stands proved and complainant has got every right to prosecute with this complaint. Point(c) "That the accused was allotted quarter in question on licence basis"
11.Complainant company was required to establish on record that accused was the licensee of the complainant company. Complainant's witnesses have deposed that accused was allotted quarter in question on licence basis through letter Ex. PW1/5. Perusal of allotment letter Ex. PW1/5 shows that it was allotted jointly in the name of one [ENTITY] and the accused, however, the licence fee was to be deducted from the salary of accused [ENTITY]. Ld. Counsel for for complainant submitted that [ENTITY] has left the quarter and now aforesaid quarter is in exclusive possession of accused [ENTITY]. Once the quarter in question was allotted to accused on licence basis by the erstwhile owner, the status of the accused shall always remain as of a licensee. Moreover, it is crystal clear from the terms and conditions of allotment letter Ex. PW1/5 that quarter in question was allotted to the accused on licence basis. The terms and conditions contained in ex. PW1/5 are very clear and specific that accused was nothing but licensee. Accused has taken a stand that allotment letter does not bear his signature. Thus, onus is on the accused to disprove his signature. However, accused has not brought any document pertaining to that period to disprove his signature appearing on Ex. PW1/5. In view of the aforesaid discussions it is held that quarter in question was allotted jointly i the name of accused and [ENTITY] through allotment letter Ex. PW1/5 which bears the signature of accused also. In view of the aforesaid discussion it is held that accused is a licensee and complainant is the licensor.
Point(d) & (e) "That the accused was ceased to be employee of the complainant company"
"That the accused has wrongfully withheld the quarter in question"
12.In their evidence PW1 stated that accused ceased to be in the employment of company w.e.f 30.11.96. Accused has not specifically denied this fact and stated that his service was wrongly terminated. Now let us see whether complainant company has established that accused is wrongfully withholding the quarter. PW1 clearly stated that the accused was to remain in possession of the quarter till he was in the services of the company and after cessation of his service accused was to vacate and hand over the quarter to the complainant company. It is stated that accused is no more in the service of the company w.e.f 30.11.96 and after that he has been unauthorizedly and illegally withholding the quarter. Thus, after cessation of his service accused was under obligation to vacate and hand over the possession of quarter in question which he failed to do so. Accused has not denied that he is still occupying the quarter. Accused has also not denied that lastly on 10.07.03 he was orally requested by the official of complainant company to vacate the aforesaid quarter. Thus, it is held that accused has been wrongfully withholding the quarter since 30.11.96 after cessation of his service.
13.Ld. defence counsel further argued that the power of attorney in favour of complainant is not valid and have not proved in accordance with law and it does not comply with the provisions of [ACT]. The persons who delegated his power to the alleged attorney did not file his power to delegate. It is also argued that the resolution regarding power of attorney in favour of complainant has not been proved. The complainant is stranger to the company, therefore, no resolution could have been passed in favour of the complainant. However, this court does not find any force in his submissions. Accused has objected this power of attorney for the first time at the fagend of the trial and has not raised objection at the time of exhibiting this power of attorney i.e Ex. PW1/3. Perusal of power of attorney placed on record shows that it has been perfectly and legally notarized and it fulfills all the ingredients of [SECTION] of [ACT]. It is already discussed above as to how power of attorney relied upon by PW3 was a valid power power of attorney and he has right to depose before this court. It is also observed that power of attorney has been duly proved by PW3. [SECTION] of the [ACT] clearly provides that once there is a duly notarized power of attorney then it shall be presumed to be true unless the contrary is proved. Accused has not produced any ingredients to disprove the power of attorney.
14.This court is supported with the law laid down by the Hon'ble Supreme Court in "[PRECEDENT], [PRECEDENT]" and "[PRECEDENT], [PRECEDENT]" in which it has been held that execution of power of attorney by a Bank's Executive Officer and Cashier delegating certain powers to one employee and documents bearing Bank's seal and attested by Notary Public raises presumption that power of attorney is executed by the bank. Word "person" in [SECTION] includes legal person.
15.Ld. counsel for complainant submitted that other persons were also convicted by the Ld. Predecessor Courts of Ld. ACMM on the basis on similar complaints filed by the present complainant. He further submitted that these orders have been upheld by the Hon'ble High Court and Hon'ble Apex Court in the following cases: "[CASE NUMBER], as Lakhan Singh vs [ENTITY] No. 2057/06, as Kanta Devi vs [ENTITY].
"SLP (Crl.) 5216/06"
2006[3] JCC 1964, Mohan Singh vs M/s [ENTITY] & Anr. Crl.Rev. [CASE NUMBER], [PRECEDENT] Kusum Lata vs [ENTITY] Ltd.
Bhura Mal Thr. Its LR's [PRECEDENT]
16.Thus, in view of these discussions it is held that complainant has established that the accused was allotted the aforesaid quarter on licence basis by virtue of his employment. It is further held that the services of the accused came to an end w.e.f 30.11.96 and after cessation of his service accused failed to vacate and hand over the possession of the quarter in dispute to the complainant. In such, circumstances it is held that the accused is wrongfully withholding the quarter of the complainant company after cessation of his services. Accordingly, he is held guilty and convicted for the offence u/[SECTION] of The [ACT].
([ENTITY]) [ACT] Announced in open court on 03.10.11.