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Judgment
Jaya Roy, J.—Heard the learned Counsel for the Petitioner, the learned Counsel for the State and the learned Counsel for the Opposite Party No. 2.
The Petitioner has filed the instant revision application against the judgment and order dated 26.2.2010 passed in Cr. Appeal No. 340 of 2009 by the Sessions Judge, Dhanbad affirming the judgment and order dated 17.11.2009 passed by the learned Judicial Magistrate, 1st Class, Dhanbad, in C.P. Case No. 1754 of 2005 being T.R. No. 662 of 2009 by which the Petitioner above named has been held guilty for the offence punishable u/s 630 of the Companies Act 1956 and thereby, the trial court imposed sentence of fine of Rs. 1,000/- (Rupees one thousand) only and on default, simple imprisonment of 15 days. The trial court has further directed this Petitioner to vacate the Company''s Quarter within 30 days of the order.
The Petitioner''s case, in brief, is that the complainant/opposite party No. 2 (the Company) has filed a complaint petition stating therein that the Petitioner being an employee of the complainant''s Company, was allotted a Company Quarter B-15 at Dhansar. It is further alleged that the Petitioner left his job w.e.f. 20.2.2001 and the company asked him to collect his dues and vac(sic)te the quarter. But as he did not turn up and vacate the quarter, a legal notice was given to him. It is also alleged that the Petitioner has withheld the quarter wrongfully.
The said complaint was filed by one Ajay Kumar Agarwal, one of the directors of the company. After cognizance was taken u/s 630 of the Company''s Act, case was transferred to the court of Judicial Magistrate, Dhanbad for trial. In order to prove its case the prosecution has adduced oral and documentary evidence. The complainant namely Ajay Kumar Agarwal has examined himself as P.W.1 and produced the document try evidence i.e. Employee''s pension scheme chart in evidence as Ext.1, allotment letter for electric line as Ext.2, application of Jagdish Yadav as Ext.3, Letter dated. 2.5.2003 as Ext.4, Advocate notice as Ext.5. A.D. as Ext.6, Registry receipt as. Ext.7 and reply of the notice as Ext.8. The defence is generally denial and the Petitioner has also examined himself as D.W.1 and another witness Babulal Bhuiya as D.W.2. He has also filed a documentary evidence i.e E.S.I. Card as Exhibit-A and the order of Assistant labour Commissioner as Exhibit-13.
Mr. S.K. Sinha, learned Counsel appearing for the Petitioner has raised only two points before this Court:
(i) Whether in absence of any authorization by the Board of Directors the complaint could have been filed by the company through its Director Sri Ajay Agarwal and if not whether the proceedings are liable to be vitiated on that account ?
(ii) Whether the Petitioner/accused can be evicted from the premises without payment of his dues?
Mr. S.K. Sinha learned Counsel appearing for the Petitioner has contended that the complainant Mr. Ajay Agarwal is one of the Directors of the Company and he filed a complaint petition. But an individual director has not power to act on behalf of the company. Therefore, he has no locus-standi to launch prosecution on behalf of the company against the Petitioner.
In this regard, he has cited a judgment reported in (2007) 4 Crimes page 154 (Bom) where the Hon''ble High Court has held in para-21 Companies Act-Director''s Power to act on behalf of Company-
21- A Director as an Individual Director, has no power to act on behalf of the Company. He is only one of a body of Directors. Called the Board of Directors and alone he has no power except such as may be delegated to him by the Board of Directors or driven to him by the articles of association of a Company....
Regarding his second points, Mr. S.K Sinha learned Counsel has submitted that the company has not paid'' his dues, till date, therefore, he cannot be evicted from his quarter. In this regard, he has also cited the following decisions of this Court:
2009(2) J.L.J.R. 39 (i)Jhr. Boren Soren v. Bihar State Road Transport Corporation and Ors.
Service Law-Retiral benefits- claim for payment of entire retrial benefits as well as for quashing the notice to vacate the quarter- Petitioners praying for direction for not to be evicted from the quarter till retirement benefit is paid-Petitioners seeking liberty to move a representation- Respondents directed to consider claim of Petitioners (paras 2 to 4)
(ii) 2005(3) J.L.J.R. 117 Jhr. Phani Bhusan Adhikary v. Jharkhand State Electricity Board.
Service Law- Retiral benefits-pension and other retrial dues are no longer a bounty distributed by the employer- on the contrary, these are valuable rights acquired and are properties in their hands- any delay in settlement and disbursement thereof should be viewed seriously-withholding of quarter allotted while in service, even after retirement, is not a valid ground to withhold the disbursement of terminal benefits- amount lying in arrears towards provident fund is immune from attachment and deduction or adjustment as against any other dues from the employee. (Para 3)
(iii) 2003(3) J.L.J.R. 732 Jhr. Raj Narayan Roy v. Fertilizer Corporation of India and Ors.
Service Law- Quarter -deduction from retiral benefits by way of penal rent for continued occupation of quarter after retirement retiral benefits paid four years after retirement and without any interest- after retirement, an employee expects immediate release of his retiral dues so that he may arrange his home-shelter for living and for spending the rest of his life- merely because the Petitioner did not vacate the quarter, the Respondents ought not to have withheld gratuity amount payable to Petitioner- recovery of penal rent unjustified-amount to be refunded, (paras 5 and 6).
(iv) Shubh Shanti Services Ltd. Vs. Manjula S. Agarwalla and Others,
D. Corporate Laws-Company Law- Chairman-Powers of-Chairman, like any other Director cannot without sanction from the Board of Directors deal with company''s property- Hence promise to illegal occupant (widow of deceased employee) against dispossession from Company''s flat, was improper and not binding on the Company.
Mr. Indrajit Sinha, the learned Counsel appearing for the Opposite party No. 2 submits that the Director Sri Ajay Agarwal was authorized or not by the company is a question of fact and it is well settled that a person who asserts a fact, must prove the same in course of trial. The burden of providing that the Director namely Ajay Kumar Agarwal was acting against the interest of the company or in a manner detrimental to the company or was not authorized to lodge the complaint was upon the accused. During the trial, the accused did not even put a suggestion to Sri Ajay Kr. Agarwal who examined as C.W.1 regarding his competency to bring the complaint far less, produce any evidence to the contrary. It appears that only at the time of hearing an argument before the trial court was made, which was negated by the trial court by holding that Section 630 of the Companies Act permits the company to bring a complaint under the said Section Before the appellate court, the said argument was not even raised and thus, the Petitioner cannot be permitted to agitate a question of fact before the revisional court. The question as to whether a person is authorized to represent a complainant company before a criminal court, had to be determined by the learned Magistrate trying the case. Reference may be made to Section 305(6) of the Code of Criminal Procedure which provides that the said question when raised in respect of an accused is determined by a court. We may draw an analogy that the said procedure is also to be drawn when a corporation is a complainant.
He has further contended that even the said inegularity, if any, would not vitiate the proceeding in view of Section 460(e) of the Code of Criminal Procedure which protects the proceedings from being vitiated in which the Magistrate has taken cognizance upon a complaint erroneously in good faith. In view of the protection of Section 460(e) of the Code of Criminal Procedure the entire proceeding cannot be said to have been vitiated only because the so called authorization of the Board of Directors was not produced.
He has further argued that Section 465 Code of Criminal Procedure also protects the judgment under challenged from being reversed or altered by this revisional court on account of any error in the complaint.
Section 465. Finding or sentence when reversible by reason of error, omission or irregularity :
(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of comp(sic)tent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any ing(sic)ry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregular it in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
Therefore, Section 465(2) Code of Criminal Procedure also emphasizes that a court must consider the fact that such an objection could and should have been raised at an earlier stage in the proceedings or not. In the instant case, the Petitioner has not done so and thus, is not entitled to get the judgments under challenge reversed or altered on the ground of any irregularity, error or omission It is not in dispute that the courts had the juri(sic)d(sic)tion to pass the impugned judgments likewise it is also not in dispute that any mandatory provision of the Code of Criminal Procedure has been violated.
Mr. Indrajit Sinha has cited two decisions of the Hon''ble Apext Court to support of his contentions:
(i) (1997) 11 S.C.C-720 in the case of A. Devendran v. State of Tamil Nadu;
Section 465 of the Code is the residuary section intended to c(sic)re any error, omission or irregularity committed by a court of competent jurisdiction in course of trial through accident or inadvertence, or even an illegality consisting in the infraction of any provisions of law. The sole object of the section is to secure justice by preventing the invalidation of a trial already held, on the ground of technical breaches of any provisions in the Code causing no prejudice to the accused.... It is true that procedures are intended to subserve the ends of justice and undue emphasis on mere technicalities which are not vital or important may frustrate the ends of justice. The courts, therefore, are required to consider the gravity or irregularity and whether the same has caused a failure of justice
(ii) State of Madhya Pradesh Vs. Bhooraji and Others,
A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It should be limited to the extreme exigency to avert ''a failure of justice''. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate court has plenary powers for revaluating and reappraising the evidence and even to take additional evidence by the appellate court itself or to direct such additional evidence to be collected by the trial court. But to replay the whole laborious exercise after erasing the bulky records relating to the earlier proceedings, by bringing down all the persons to the court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting ''a failure of justice''. The superior court which orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the trouble to reach the court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedan (sic)c than pragmatic. Law is not an instrument to be used for inflicting suffering on the people but for the process of justice dispensation
(para 8)
Section 465(1) makes it clear that the error, omission or irregularity in the proceedings hold before or during the trial or in any enquiry were reckoned by the legislature as possible occurrences in criminal courts. Yet the legislature disfavored axing down the proceedings or to direct repetition of the whole proceedings afresh. Hence, the legislature imposed a prohibition that unless such error, omission or irregularity has occasioned ''a failure of justice'' the superior court shall not quash the proceedings merely on the ground of such error, omission or irregularity.
... (para15)
The expression ''a court of competent jurisdiction'' envisaged in Section 465 is to denote a validly constituted court conferred with jurisdiction (sic) try the offence or offences. Such a court will not get denuded of its competence to try the case on account of any procedural lapse and the competence would remain unaffected by the non-compliance with the procedural requirement.
...(para-21).
Mr. Sinha, learned Counsel has further contended that in view of the aforesaid factual and legal matrix, it is clear that even if assuming that the complaint was filed without authorization of the Company then this Hon''ble Court in exercise of its revisional jurisdiction may not be inclined to reverse the judgments of conviction that too after five years as the Petitioner has not made out a case of failure of justice on account of such error or omission as the judgments have been passed by a court of competent jurisdiction. The Petitioner has not brought any material to show as to how he was prejudiced by the non authorization of the Director Ajay Agarwal, if at all.
The counsel appearing for the opposite party in reply to the second point advanced by the counsel of the Petitioner has submitted that the present case is u/s 630 of the Companies Act where the court has very limited jurisdiction. It cannot travel beyond the said section. The only question which falls for determination of a court for trying an offence u/s 630 of the Companies Act is with regard to wrongful with holdment of the companies'' property. It cannot be entered into the question of dues payable by the company to the accused or the converse i.e. the accused to the company. Determination of such question would be wholly without jurisdiction. Moreover, in the instant case, the complainant has admitted in his evidence at paras 8 and 9 that he stays in the companies'' quarter and he is no more in the company''s employment and he has not brought any case for realizing his dues from the company. Thus, in view of the admission of the accused, he cannot be permitted to agitate his grievance for non-payment of dues before a forum, which has no jurisdiction to entertain such a plea. Reliance is placed in the case of Ganesh Roy Vs. State of Jharkhand and Another, wherein this Hon''ble Court after considering two Supreme Court judgments in the case of Baldev Krishna Sahi Vs. Shipping Corporation of India Limited and Another, and Lalita Jalan and Another Vs. Bombay Gas Co. Ltd. and Others, held as follows:
It is therefore, clear that if any officer or employee of the company was permitted to occupy any property of be company during his employment and remain in wrongful occupation of the same after termination of his employment commits an offence u/s 630 of the aid Act.
Mr. Indrajit Sinha has further contended in respect of the payment of the dues of the Petitioner that the opposite party No. 2 very specifically slated in his Counter Affidavit filed that on the same complaint by the Petitioner to the Labour Superintendent, a conciliation meeting was fixed oh 04.08.2009 and after hearing the Petitioner, the Labour Superintendent has observed that the Petitioner is not keen/interested in taking full and final dues from the management and he wants to prove his legality of illegal occupancy of the quarter and to continue the dispute so as to be in occupancy of the quarter without paying any rent. In this connection, a copy of the order of the Labour Superintendent is also annexed as Annexure-.1 in the aforesaid counter affidavit.
Lastly, Mr. Sinha has contended that admittedly, the Petitioner left the service under the company on 20.2.2001 and he is still in occupation of the company''s quarter without paying any rent (nearly ten years). The company is always ready to pay his dues, if any, which he is entitled according to the company.
After going through the decisions cited by the counsel of the Petitioner, I find the judgment relied upon by the Petitioner reported in Shubh Shanti Services Ltd. Vs. Manjula S. Agarwalla and Others, is not applicable to the facts of the instant case as in that case it was proved by leading evidence that the Chairman-cum-Managing Director had acted contrary to the interest of the company and thus, the promise made by him would not bind the company. In the instant case, the company has not come forward in any manner to even suggest that the complaint and / or the judgment passed were not binding on the company.
The other decisions cited by the counsel of the Petitioner are not applicable to the present case. In the present case, the company is ready to pay his dues from very beginning but the Petitioner is lot interested in taking his dues from the management which has also been observed by the Labour Superintendent in conciliation meeting (Annexure J)
After considering the arguments made by both the parties and materials on record and the principle laid down by the Hon''ble Apex Court in the cases cited by the parties, being the revision court, I do not find any reason to interfere with the impugned judgment. Accordingly, the revision application is dismissed.