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1987 DIGILAW 105 (RAJ)

Beguram v. Jaipur Udhyog Ltd.

1987-01-27

NAVIN CHANDRA SHARMA

body1987
N.C. SHARMA, J.—I have heard Shri R.P. Garg appearing for the petitioner Beguram 2. Fact sin brief are that Beguram was employed as Fitter (Maintenance) in M/s Jaipur Udhyog Sawai Madhopur. He retired on September 7, 1978 but did no vacate the free quarter of the Company bearing No. 101/200 which had been allotted to him while he was in service. Consequently Jaipur Udhyog Ltd. filed a criminal complaint against the petitioner in the court of the Chief Judicial Magistrate, Sawai Madhopur for the offence under section 630 (1) (b) of the Companies Act. The Chief Judicial Magistrate Sawai Madhopur by his Judgment dated September 11, 1986 held the petitioner guilty for the said offence and punished him with a fie of Rs.200/-. Along with this sentence, the Chief Judicial Magistrate also passed an order under sub-section (2) of section 630 of the Companies Act ordering the petitioner deliver up the said quarter to M/s. Jaipur Udhyog Ltd. within three months of the date of his Judgment and in default there of the petitioner was to undergo simple imprisonment for a term upto two months. Against this conviction and sentence, the petitioner filed criminal appeal No. 53 of 1986 before the Sessions Judge Sawai Madhopur. Along with appeal he filed an application under section 380 Cr. P.C. for suspension of the sentence and also of the order passed by the Chief Judicial Magistrate under sub-section 2 of section 630 of the Companies Act. 3. The first contention advanced by Mr. Garg is that section 630 of the Companies Act is only applicable with respect to movable property because subsection 2 of the said section used the words deliver up" or refund and these words, according to him, can relate only to movable property. There is no force in this contention. The word property used in section 630 of the Companies Act includes within its purview both the movable as well as immovable property and there are no words express or implied in this section which can restrict the application of the word property to only movable property. The words deliver up very well applies to the delivering up of the possession of immovable property. These words arc, on the other hand, indicative of the fact that the immovable properties are also covered in the scope of section 630 of the Companies Act. 4. The next contention of Mr. The words deliver up very well applies to the delivering up of the possession of immovable property. These words arc, on the other hand, indicative of the fact that the immovable properties are also covered in the scope of section 630 of the Companies Act. 4. The next contention of Mr. Garg was that the petitioner had retired from the service of the Company on September 1, 1978 and he continued to occupy quarter, No. 101/200 even after his retirement. According to him the offence was committed by the petitioner on September 1, 1978 when despite his retirement from the employment of the Company, he did not deliver the possession of the quarter which had been allotted to him. The learned counsel relied on section 468 (2) of the Cr. P.C. and contended that the period of limitation for taking cognizance of the offence which was punishable with fine only was six months, and, therefore, the criminal complaint No. 226 of 19S2 filed by M/s Jaipur Udhyog Ltd. was barred by limitation. I equally do not find any force in this contention. The petitioner was allotted Companys quarter No. 101/200 free of any rent so long as he was in the employment of the Company. It was a case where the petitioner having been in possession of lawfully in the said quarter upto September J, 1978, wrongfully with-held the possession of the quarter. After September 1, 1978, the occupation of the petitioner of the quarter was in the capacity of a trespasser. Trespass is a continuing offence and the matter is covered by section 472 of the Criminal Procedure Code which expressly provides that in the case of continuing offence a fresh period of limitation shall begin to run at every moment of the time during which the offence continues. Continuing offence is one which is susceptible of continence and is distinguishable from one which is committed once and for all. Trespass is susceptible of continuance and does not end on the date on which it is initially committed. 5. Last contention of the learned counsel for the petitioner was that the Sessions Judge, Sawai Madhopur was under a duty to suspend the order in pursuance of section 389 Cr. P.C. and he urged that the word may used in section 389(1) Cr.P.C. should be interpreted as containing a mandatory provision. There is no force in this argument also. 5. Last contention of the learned counsel for the petitioner was that the Sessions Judge, Sawai Madhopur was under a duty to suspend the order in pursuance of section 389 Cr. P.C. and he urged that the word may used in section 389(1) Cr.P.C. should be interpreted as containing a mandatory provision. There is no force in this argument also. Section 389 Cr. P.C. gives discretionary power to the Appellate Court and the discretion has to be exercised judicially. Admittedly, the petitioner had retired from the employment of the Company on September 1, 1978 and it would amount to giving him a reward for his trespass if he is allowed to continue a moment more. The Sessions Judge was right in rejecting the application of the petitioner under section 389 Cr. P.C. This petition has no merit in it and it is here by dismissed.