Bimaleswari Narain Varma v. P. K. Hore & State — 1995 DIGILAW 250 (CAL)

JUDGMENT Nripendra Kumar Bhattacharyya, J.: By this revisional application the accused petitioner, who was an employee of M/s. Rydak Syndicate Limited, challenged the order of conviction and sentence as- passed by the learned Additional Sessions Judge, 10th Court, Alipore, 24-Paraganas (South). dated 2nd March, 1995, in Criminal Appeal No.33 of 1994, confirming the judgement and order of the learned Chief Judicial Magistrate, Alipore, passed in Case No. C-777 of 1989, dated 7th June, 1994, convicting the petitioner under s. 630(1) of the Companies Act. 1956, and sentencing him to pay a fine of Rs. 500/-, in default to suffer one month's simple imprisonment and directing him to deliver possession of the flat at premises no. 1, Belvedere Estate at 8/8, Alipore Road, Calcutta-27, within three months, in default to suffer simple imprisonment for six months more. 2. The fact silhouetted behind this case is that the accused petitioner herein was the Managing Director of M/s. Rydak Syndicate Limited, a sister concern of M/s. Jardine Henderson Limited. As per agreement entered into by and between the parties the accused petitioner amongst others was allotted a free furnished flat as a condition of service with a stipulation that he would deliver peaceful and vacant possession of the flat on the termination of his employment or on his resignation from the service or from the date of his retirement. That allotted flat was allowed to be kept in possession by the petitioner, though he worked under the Company in different capacities. Ultimately, the petitioner resigned from the services of the Company but failed to deliver possession of the flat. Repeated requests were made by different officials of the Company for delivery of the flat but in vain. Ultimately, the Secretary of the said M/s. Rydak Syndicate Limited made an application under s. 200 of the Code of Criminal Procedure before the learned Chief Judicial Magistrate, Alipore, alleging an offence against the petitioner under s. 630 of the Companies Act, 1956. The matter went into trial. Evidence was laid on behalf of the prosecution and thereafter the learned Chief Judicial Magistrate passed the order of conviction and sentence, as indicated earlier, and also directed the petitioner to deliver the flat allotted to him by the Company within the stipulated time. The matter went into trial. Evidence was laid on behalf of the prosecution and thereafter the learned Chief Judicial Magistrate passed the order of conviction and sentence, as indicated earlier, and also directed the petitioner to deliver the flat allotted to him by the Company within the stipulated time. That judgment was the subject-matter of challenge at the instance of the petitioner herein in appeal before the court of the learned Additional Sessions Judge, Alipore, but the appeal failed and the conviction and sentence of the petitioner was confirmed and the period of three months was granted to him for vacating the flat in question from the date of the order of the appellate court, as also stated earlier against the said judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, the accused petitioner has come up before this Curt in revision and obtained ad-interim order of stay of the direction of the appeal court regarding the delivery of the flat in premises no.1, Belvedere Estate at 8/8, Alipore Road, Calcutta-27, for a period of four weeks from that date after the reopening of the Court after the summer holidays. 3. The matter appeared in the list before another single Bench of this Court on 13th June, 1995 and due to absence of the learned Advocate for the petitioner the next date was fixed for hearing of the matter i.e. on 14.6.95 and on 14.6.95 the case was taken up in presence of the learned Advocate for the opposite party no.1, but none of the learned Advocates for the petitioner appeared as a result whereof, the revisional application stood dismissed for default. The matter went back to the court of the learned Chief Judicial Magistrate, Alipore, for executing the order as contained in the Judgment of the learned Chief Judicial Magistrate, dated 17.6.94, wherein was inter alia ordered that the petitioner shall deliver possession of the flat within three months from the date of the order, in default to suffer simple imprisonment for six months. The learned Magistrate took up the matter on 17.6.95 and the learned Advocate on behalf of the accused petitioner made it known to the learned Magistrate that the revisional application of the petitioner was dismissed for default by the Hon'ble High Court and in such circumstances an undertaking was given on behalf of the accused petitioner that the flat in question would be delivered to the complainant (opposite party no.1 herein) within seven days. In the meantime, by the order dated 27th June, 1995 the revisional application was restored to its file by this Court. 4. In this background it has been urged and contended by the learned Advocate for the accused petitioner, Mr. Sourindra Prasad Talukdar, that the undertaking that has been given before the learned Chief Judicial Magistrate is of no effect in view of the fact that as the matter was restored by order dated 27th June, 1995, it was restored with all intents and purposes on and from 14th June, 1995 meaning that it is to be deemed that the order of stay as was passed by this Court on 17th May, 1995 was continuing till 27th June, 1995. This argument was advanced as an application has been filed by the opposite party no.1, that in view of the undertaking filed by accused petitioner the revisional application has become infructuous and is liable to be dismissed. 5. In the next place, Mr. Talukdar contended that all the undertakings are not binding. The binding nature of the undertaking depends upon the facts and circumstances of each case. In support of his submission Mr. Talukdar relied on a Supreme Court decision in the case of Shri Krishan vs. The Kurukshetra University, Kurukshetra, reported in AIR 1976 SC 376 . From the said decision it appear that the candidate to pursue law examination was given permission to sit for the examination upon his undertaking that if he would not be able to get requisite permission from his employer to join the law classes he would abide by any order that the University would pass. The Apex Court in that case inter alia observed that undertaking was filed in terrorem. If such undertaking was not filed the said student would not have been allowed to sit for that examination and as such that undertaking would not be operative. 6. On the point of undertaking, Mr. The Apex Court in that case inter alia observed that undertaking was filed in terrorem. If such undertaking was not filed the said student would not have been allowed to sit for that examination and as such that undertaking would not be operative. 6. On the point of undertaking, Mr. Pradip Kumar Ghosh, learned Advocate appearing for the opposite party no.1, on the other hand, contended that in the instant case and in the background of the facts and circumstances of this case there was no question of filing an undertaking or giving an undertaking in terrorem. The petitioner in the revisional application suffered already an order regarding delivery of possession of the flat with punitive order, that in case of default to carry out that order the petitioner would suffer simple imprisonment for certain period and the said order was confirmed in appeal. The matter was pending in revision before this Court and that part of the order regarding delivery of possession of the flat was stayed but the revision itself was dismissed for default. But subsequently it was restored and during that interregnum period that undertaking was given. So there was no question of giving an undertaking in terrorem. So the decision in the case of Shri Krishna (Supra) has no manner and mode of application in the present case. Mr. Ghosh on the other hand relied on another Supreme Court decision in the case of R. N. Gosain vs. Yashpal Dhir reported in AIR 1993 SC 352 . In paragraph 10 of the said decision at page 355 the principle has been laid down. To understand the principle, the observation made in the said paragraph is set out hereunder:- "Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage".............after taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside". (Sic.) 7. (Sic.) 7. During the time of argument, the learned Advocate for the petitioner, Mr. Talukdar frankly submitted before this Court that when an undertaking was given before the learned Chief Judicial Magistrate, that undertaking was given out of volition of the petitioner herein and there was no question of coercion, duress or influence or there was no question of any terrorem. That being the position, the petitioner having gained time to vacate the flat and to deliver possession to the complainant, it will not be open to him to say that the undertaking is invalid. That is the ratio that has also been laid down' in the case of R.N. Gosain (supra). 8. I am not oblivious of the submission of Mr. Talukdar that as the revision was restored on 27th June, 1995 which was dismissed for default on 14th June, 1995, it will be deemed that the order of stay was continuing from the date of passing of the stay order which was passed on 17th May, 1995 till 27th June, 1995. So it should be under a deeming clause but the actual fact remains that there was no interim order during the period from 14.6.95 till 27.6.95 and during that period that undertaking was given before the learned Chief Judicial Magistrate out of his own volition by the petitioner. Now it is not open for the petitioner to say that undertaking is not a valid or proper undertaking and it should not be operative. This is a hard fact and the deeming provision will not come into play for denial of the hard fact. 9. Section 630 of the Companies Act, 1956 contains two parts, one in the event of refusal to deliver the flat allotted to the employee by the company he should be punished with fine which may extend to Rs. 1,000/-that is under sub-so (1) of the said Act, and another is sub-so (2) of the said Act, which provides a direction by the court upon the officer or employee of the Company to deliver the flat. 10. Mr. Talukdar submitted that regarding the first part about the conviction and sentence, the petitioner has already paid the fine. As the petitioner has already paid the fine after suffering the conviction, the question of setting aside the order of conviction and payment of the fine does not arise. 10. Mr. Talukdar submitted that regarding the first part about the conviction and sentence, the petitioner has already paid the fine. As the petitioner has already paid the fine after suffering the conviction, the question of setting aside the order of conviction and payment of the fine does not arise. On the face of the fact that he has already furnished an undertaking through his learned Advocate to vacate the flat within seven days from the date of the order of the learned Chief Judicial Magistrate and as I have already held that the undertaking is a valid one, in my view, and I am also of the firm opinion that this revisional application has no merit to stand as it has become infructuous. 11. I, accordingly, dismiss the revisional application on the ground that the revisional application has become infructuous. 12. The application for interim order and the application for appropriate order and or for dismissal of the revisional application both filed in Court on 6.7.95 stand disposed of. 13. Let a copy of this order be sent down to the court of the learned Chief Judicial Magistrate, Alipore, by a special messenger at the cost of the opposite party no. 1. Such cost is to be deposited by tomorrow. Application dismissed.