Case: Gokak Patel Volkart Limited Vs. Dundayya Gurushiddaiah Hiremath &amp; Others

3. Respondent 1 in each of these criminal appeals was appointed on August 1, 1942, June 11, 1945, November 24, 1939, May 1, 1939 and January 23, 1937, respectively, in the service of the appellant company and they retired on March 14, 1984, October 1, 1983, February 12, 1984, October 4, 1983 and January 27, 1981, respectively, from the appellant companys service, whereafter each of them was required of vacate his companys quarter. Each having declined to vacate the company quarter even more than six months after retirement, despite legal notice, the appellant company filed a private criminal complaint under Section 630(1)(b) of the Companies Act, 1956 and Section 406 IPC against each of them, before the Judicial Magistrate First Class, Gokak and in each case, after inquiry framed charges for offences under Section 406 IPC and Section 630(1)(b) of the Companies Act, 1956. The learned Judicial Magistrate, after prosecution had examined its witnesses, recorded the statements of all the accused under Section 313 of the CrPC and despite finding that the accused in each case was allotted a quarter by the company for his use and occupation and each had no authority to retain possession of the same after he retired, and that the case of action in each case arose when the accused failed to deliver possession of the quarter to the company, held that the documents produced by the company did not disclose anything regarding the retirement of the accused from the service, but at the same time he recorded that during the course of evidence PW 1 had deposed that each of the accused retired from service and immediately after the retirement failed to redeliver possession of the companys quarter which attracted Section 630(1)(b) of the Companies Act and which was punishable only with fine and the complaint, therefore, ought to have been filed within six months from the date of retirement of the accused, and as the complaint was filed only during the year 1985 it was clearly barred by limitation, wherefore, the complaint could not be taken into consideration, and consequently, the accused was to be acquitted. The companys revision petition therefrom was dismissed by the High Court holding that the view taken by trial Magistrate was plausible and reasonable as the complaint was filed in each case beyond six months from the date of the alleged offence and that the question of limitation was concluded by a decision of the same High Court in W.G.I. Cranes Ltd. v. G. G. Advani ((1984) 1 Kant LC 462) wherein it was held that the offence under Section 630(1) of the Companies Act was not a continuing offence and the decision of this Court in Bhagirath Kanoria v. State of Madhya Pradesh ( 1984 (4) SCC 222 : 1984 SCC(Cri) 590 : 1984 AIR(SC) 1688) would not be of any assistance to the petitioner

Reasoning:
8. The corresponding concept of continuity of a civil wrong is to be found in the Law of Torts. Trespass to land in the English law of torts (trespass quare clausum freight) consists in the act of (1) entering upon land in the possession of the plaintiff, or (2) remaining upon such land, or (3) placing or projecting any object upon itin each case without lawfulis significant that when entry into or upon property in possession of another is lawful then unlawfully remaining upon such property with the object of intimidating, insulting or annoying the person in possession of the property would be criminal trespass. The offence would be continuing so long as the trespass is not lifted or vacated and intimidation, insult or annoyance of the person legally in possession of the property is not stopped.Thus, both wrongfully obtaining and wrongfully withholding have been made offence punishable underion (2) knowingly misapplication has also been envisaged. The offence continues until the officer or employee delivers up or refunds any such property if ordered by the court to do so within a time fixed by the court, and in default to suffer the prescribed imprisonment. The idea of a continuing offence is implied in. The concept of continuing offence does not wipe out the original guilt, but it keeps the contravention alive day by day. It may also be observed that the courts when confronted with provisions which lay down a rule of limitation governing prosecutions, in cases of this nature, should give due weight and consideration to the provisions of Section 473 of the Code which is in the nature of an overriding provision and according to which, notwithstanding anything contained in the provisions of Chapter XXXVI of the Code of Criminal Procedure any court may take cognizance of an offence after the expiration of a period of limitation if, inter alia, it is satisfied that it is necessary to do so in the interest ofApplying the law enunciated above to the provisions of Section 630 of the Companies Act, we are of the view that the offence under this section is not such as can be said to have consummated once for all. Wrongful withholding, or wrongfully obtaining possession and wrongful application of the companys property, that is, for purposes other than those expressed or directed in the articles of the company and authorised by the Companies Act, cannot be said to be terminated by a single act or fact but would subsist for the period until the property in the offenders possession is delivered up or refunded. It is an offence committed over a span of time and the last act of the offence will control the commencement of the period of limitation and need be alleged. The offence consists of a course of conduct arising from a singleness of thought, purpose of refusal to deliver up or refund which may be deemed a single impulse. Considered from another angle, it consists of a continuous series of acts which endures after the period of consummation on refusal to deliver up or refund the property. It is not an instantaneous offence and limitation begins with the cessation of the criminal act, i.e. with the delivering up or refund of the propriety. It will be a recurring or continuing offence until the wrongful possession, wrongful withholding or wrongful application is vacated or put an end to. The offence continues until the property wrongfully obtained or wrongfully withheld or knowingly misapplied is delivered up or refunded to the company. For failure to do so(2) prescribes the punishment. This, in our view, is sufficient ground for holding that the offence under Section 630 of the Companies Act is not one time but a continuing offence and the period of limitation must be computed accordingly, and when so done, the instant complaints could not be said to have been barred by limitation. The submission that when the first respondent upon his retirement failed to vacate and deliver possession of the companys quarter to the company the offence must be taken to have been complete, has, therefore, to be rejected