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

3. Facts shorn of unnecessary details are mentioned 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 automobile products. Mr. V.S. Parthasarthy is the Factory Manager of theand has been posted in Mumbai. A resulution 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 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 file and prosecute the aforesaid complaint.5. On the complaint having 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), 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 / 34 of the IPC as also under Section 630 of the Act, but cognizance was taken 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 with effect from 6.3.1992. The servant quarter was allotted to accused No. 1 by virtue of his service in the company. 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 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 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 aforesaid complaint.9. Shri V.S. Parthasarthy, appeared asand deposed before the Court circumstances under which accused No.1 was handed over possession of the servant quarter, where 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 Appellants Criminal Complaint has been dismissed on technical ground.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. Parthasarthy is a fictitious document. The services of accused No.1 were never terminated and even after retirement he came to beThus, 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 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 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 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 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 passed by Additional Chief Metropolitan Magistrate,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." Their bail bonds, if any, stands cancelled.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 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 appellants application, for prosecution of the accused under Section 630 of the Act.14. Feeling aggrieved thereof, this appeal has been preferred by the complainant company.

Reasoning:
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.