IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 16TH FEBRUARY 2009 / 27TH MAGHA 1930 Crl.Rev.Pet.No. 2759 of 2008() ------------------------------ CRA.17/1995 of SESSIONS COURT, KALPETTA ST.984/1992 of CHIEF JUDICIAL MAGISTRATE, KALPETTA .................... REVN. PETITIONER/ APPELLANT/ACCUSED:- ------------------------------------------------ M.J. CHACKO, CHALAMALA ESTATE, VYTHIRI.P.O, WAYANAD DISTRICT. BY ADV. MR. PHILIP MATHEW MR. G.G.MANOJ RESPONDENTS/RESPONDENTS/R1 COMPLAINANT:- --------------------------------------------------------- 1. M/S. VYTHIRI PLANTATIONS, REPRESENTED BY ITS MANAGER, THALAMA ESTATE, POST VYTHIRI. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. MR. C.P.SUDHAKARA PRASAD, SENIOR ADVOCATE FOR R1 MR. ELVIN PETER P.J. FOR R1 MR. P.N.SANTHOSH FOR R1 MR. S.RAMESH FOR R1 MR. S.D.ASOKAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ========================= Crl. R.P. No. 2759 of 2008 ========================= Dated this the 16th day of February, 2009. JUDGMENT Heard both sides. 2. In this revision filed under Section 397 r/w Section 401 Cr.P.C., the revision petitioner who was the accused in S.T. Case No. 984 of 1992 on the file of the Chief Judicial Magistrate, Kalpetta, challenges the orders passed by the courts below finding him guilty of an offence punishable under Section 630 of the Companies Act, 1956. 3. The following facts are not in dispute:- The revision petitioner was an Assistant Tea maker in a company by name Vythiri Tea Plantations Ltd. It is admittedly a company registered under the Companies Act, 1956. He was allotted a quarters at Vythiri in connection with his employment under the Company. On 23.09.1989, he was dismissed from service. On 29.09.1989, the complainant who was the Manager of the Company, sent a notice to the revision petitioner/accused to vacate the quarters. He replied to the Manager that he has challenged the order of dismissal and had raised an industrial dispute and until the culmination of the Crl.R.P. No. 2759/2008 : 2 : same, he was not liable to be evicted from the quarters. Since according to him, the Manager had resorted to coercive steps to evict him from the quarters, the accused filed O.S. No. 516 of 1989 before the Munsiff's Court, Calcutta. On 31.03.1991, he obtained a decree from the Civil Court after a contest. As per the decree, the company and its Manager were restrained from trespassing into the quarters in question and causing any obstruction to the revision petitioner in the convenient enjoyment of the same with basic amenities such as water, electric supply etc. unless and until he was evicted by due process of law. The decree, however, clarified that the injunction granted as above would not affect the right of the defendants from taking appropriate action for recovery of possession of the quarters from the revision petitioner. Thereafter on 09.03.1992, the company represented by its Manager filed the present complaint before the Chief Judicial Magistrate, Kalpetta alleging an offence punishable under Section 630 of the Companies Act, 1956. As per judgment dated 21.01.1995, the trial court found him guilty of the offence punishable under Section 630(2) of the Companies Act Crl.R.P. No. 2759/2008 : 3 : and sentenced him to pay a fine of Rs.500/- and on default to pay the fine, to suffer simple imprisonment for one month. He was also directed to deliver vacant possession of the building and the adjoining land described in the schedule to the complaint within a period of two months failing which he was directed to undergo simple imprisonment for a term of one month. Even though he preferred an appeal against the said judgment as Crl. Appeal No. 17 of 1995 before the Sessions Court, Wayanad, as per judgment dated 22.05.2001 the lower appellate court dismissed the appeal confirming the conviction entered and the sentence passed as also the direction issued by the trial court. Hence this revision. 4. The learned counsel appearing for the revision petitioner made the following submissions before me in support of the revision:- The complaint was filed on behalf of the company by the Manager on the strength of Ext.P1 power of attorney allegedly issued by one of the Directors of the company. Individual Directors have no power to file a complaint unless authorised by the Articles of Association or by the Board of Directors Crl.R.P. No. 2759/2008 : 4 : under Section 291 of the Companies Act. If so, individual Directors cannot issue a power of attorney also in favour of the Manager so as to lodge a complaint before the criminal court. A company is a juristic person and it acts through its Directors who are collectively referred to as the Board of Directors. An individual Director has no power to act on behalf of the company of which he is a Director unless by some resolution of the Board of Directors of the company specific power is given to him/her. Whatever decisions are taken regarding the running of the affairs of the company, such decisions are taken by the Board of Directors. To the extent the Board of the Directors are delineated in the Memorandum and Articles of Association of the company, the Directors are bound to act accordingly. As agents of the company they must act within the scope of their authority and must disclose that they are acting on behalf of the company [vide Dale & Carrington Invt. (P) Ltd. v. P.K. Prathapan (2005(1) SCC 212)]. The suit on behalf of a company can be filed by a Director only if he is specifically empowered in that behalf by the Board of Directors [vide M/s. Nibro Ltd. v. National Insurance Co. Crl.R.P. No. 2759/2008 : 5 : Ltd. (AIR 1991 Delhi 25)]. In the absence of any specific authority for the institution of a suit given to the Managing Director, either by the Articles of Association or by a resolution passed by the Board of Directors under Section 291 of the Companies Act, the Managing Director has no power to institute a suit [vide Al-Amin Seatrans Ltd. v. O & P Interested in Vessel M.V. 'Loyal Bird' (AIR 1995 Calcutta 169)]. In Lalita Jalan v. Bombay Gas Co. Ltd. (2003 (6) SCC 107) it has been observed by the Apex Court that merely because a provision for imposing penalty is provided under Section 630 of the Companies Act, it will not convert the civil proceeding into a criminal one and that even assuming that the above provision is criminal in nature, the penalty will be attracted only in the event of the person not complying with the demand for recovery of possession pursuant to the order passed in that behalf. Thus, the Manager who was not vested with sufficient authority to prefer a complaint, had no locus standi to do so and the courts below were not justified in entertaining the complaint and convicting the revision petitioner/accused of the said offence. Crl.R.P. No. 2759/2008 : 6 : 5. I am afraid that I cannot agree with the above submissions. It may be true that the Manager who lodged the complaint on behalf of the company, had only Ext.P1 power of attorney dated 07.03.1992 issued by a Director of a company to initiate proceedings against the revision petitioner. It must be remembered that consequent on the dismissal of the revision petitioner from the service of the company on 23.09.1989, he had raised an industrial dispute in which the Labour court had initially found that the domestic enquiry conducted was bad. That case was fought up to the High Court. Thereafter, the Labour Court in the second round of litigation, had held that the termination of the service of the petitioner was justified but instead of holding it as dismissal from service, it was converted into one of discharge from service. That case was also fought up to the High Court. Exts. D3 and D4 are the orders of the Single Judge and of the Division Bench in which the company was represented by the very same Manager whose locus standi was not assailed by the revision petitioner. When the authority of the complainant to represent the company was not questioned by the revision Crl.R.P. No. 2759/2008 : 7 : petitioner in the proceedings before the Single Judge as well as before the Division Bench of this Court, it is late in the day for the revision petitioner to assail the locus standi of the complainant. Admittedly, the revision petitioner has left the service of the company long back and he has no right to continue in the quarters as long as he is not an employee of the company. His overstayal has been too long a period. Such being the position, I see little scope for interference with the orders passed by the courts below. The conviction was rightly recorded by the courts below. The sentence imposed on the revision petitioner also cannot be said to be disproportionately excessive or harsh This Crl.R.P is accordingly dismissed. Dated this the 16th day of February, 2009. V. RAMKUMAR, JUDGE. rv Crl.R.P. No. 2759/2008 : 8 : V. RAMKUMAR, J ------------------------------------ Crl.R.P. No. 2759 of 2008 ---------------------------------------- 16th day of February, 2009. Crl.R.P. No. 2759/2008 : 9 : O R D E R Crl.R.P. No. 2759/2008 : 10 :