Case: Automobile Products India Ltd Vs. Das John Peter and Ors

the instance of company against the accused was maintainable and in our opinion cognizance thereof was rightly 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 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 hereinbelow: "621. Offences against Act to be cognizable only on 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 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: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 Exchange Board of India.(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 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 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.(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 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. 26. We have carefully examined the originals of the 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.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.28. The letter of the accused No. 1 dated 05.01.2000 is reproduced herein below:- "In regard to the above subject I the undersigned 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 Peter29. 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 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 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 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. We hold so because equity also does not swing in favour of 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 passed by and he has used the servant quarter without having any right to do so. No further 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 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. Appellants complaint filed under section 630 of the Act is hereby allowed and accused is granted time to vacate the 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 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 needful. If the accused persons fail to do so then the appellant shall be entitled to take police help to get our order executed.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]26. We have carefully examined the originals of the 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.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.28. The letter of the accused No. 1 dated 05.01.2000 is reproduced hereinregard to the above subject I the undersigned 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 esteemedJohn Peter29. 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 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 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 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. We hold so because equity also does not swing in favour of 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 passed by and he has used the servant quarter without having any right to do so. No further 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 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. Appellants complaint filed under section 630 of the Act is hereby allowed and accused is granted time to vacate the 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.In default of payment of fine, the accused shall suffer 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 needful. If the accused persons fail to do so then the appellant shall be entitled to take police help to get our order executed.