Research › Search › Judgment

Calcutta High Court · body

2002 DIGILAW 700 (CAL)

Rajat Mohon Dutta v. Pran N. Malhan

2002-11-28

DEBIPRASAD SENGUPTA

body2002
JUDGMENT DEBIPRASAD SENGUPTA, J. 1. The present appeal has been preferred against the judgment and order of acquittal dated 3.10.2000 passed by the learned Chief Judicial Magistrate, Alipore, South 24 Parganas in Case No. C-254 of 1997 thereby acquitting the accused opposite party of the charge under section 630 of the Companies Act. 2. The present appellant being the Manager (Law), Principal Officer and authorised representative of M/s. G.E.C. Alsthom India Ltd. filed a petition of complaint alleging that the accused, who held the post of Chief Executive (Metres and Light fittings) in the Company, opted for voluntary retirement by his letter dated 1.11.1995, which was accepted by the Company. As such the accused ceased to be the employee of the Company on and from 1.11.1995. The Company being the absolute owner of flat No. 9A, Minto Park Syndicate, 13, Debendra Lal Khan Road, Calcutta, the accused was provided accommodation in the said flat as an employee of the Company, which he continued to enjoy till the date of his resignation. The accused was allowed to occupy the said flat till April, 1996. The accused was thereafter called upon by a letter dated 22.3.1996 to vacate the said flat so that other employee of the Company may occupy the same. Even after this the accused was allowed to occupy the said flat till June, 1996. From July 1, 1996 the accused was alleged to have wrongfully and illegally occupied the said flat and in spite of notice to vacate he refused to vacate the .same thereby committing an offence under section 630 of the Companies Act. 3. The learned Magistrate after considering the evidence on record and material exhibits came to a finding as follows:- "In the instant case, it has been amply proved that the accused has ceased to be an employee under the Company. Since he is not entitled to the earlier accommodation and since he refused to vacate the premises it has to be held that he wrongfully withheld the flat in question." 4. So, it was held by the learned Magistrate that the accused ceased to be an employee of the company and that he wrongfully withheld the flat in question. Since he is not entitled to the earlier accommodation and since he refused to vacate the premises it has to be held that he wrongfully withheld the flat in question." 4. So, it was held by the learned Magistrate that the accused ceased to be an employee of the company and that he wrongfully withheld the flat in question. But the learned Magistrate, even after such finding, acquitted the accused person of the charge under section 630 of the Companies Act on the ground that the petition of complaint was not maintainable in the absence of proper authorisation by proper persons. 5. Mr. Balai Chandra Roy, learned Advocate appearing for the complainant/appellant submits that the complainant was very much competent to file the petition of complaint on behalf of the company. Mr. Roy also refers to Exhibit I which is a letter of authorisation issued by C.S. Ashok Kumar, General Manager (Legal & Secretariat) and a constituted Attorney. But the learned Magistrate refused to rely upon such authorisation as no other document could be filed by the complainant in support of Ext. I to show the authority of C.S. Ashok Kumar as constituted Attorney of the Company to further authorise the present complainant. 6. Mr. Roy in support of his contention relies upon a judgment of the Hon'ble Supreme Court reported in Vishwa Mitter vs. Poddar & other, AIR 1984 SC 5 . In the said judgment it was held by the Hon'ble Apex Court as follows:- "Therefore from a combined reading of section 4(2) with section 190 of the Cr. P.C. it transpires that upon a complaint filed by a person setting out facts therein which constitutes the offence before a Magistrate specified in section 190, the Magistrate will be competent to take cognizance of the offence irrespective of the qualifications or eligibility of the complainant to file the complaint. It must, however, be conceded that where a provision to the contrary is made in any statute, which may indicate the qualification or eligibility of a complainant to file the complaint, the Magistrate before taking cognizance is entitled and has power to inquire whether the complainant satisfies the eligibility criteria." 7. Relying upon the aforesaid judgment it is submitted by Mr. Relying upon the aforesaid judgment it is submitted by Mr. Roy that anyone can set the criminal law in motion by filing a complaint of facts constituting an offence and unless any statutory provision prescribes any special qualification or eligibility criteria for putting the criminal law in motion, no court can refuse to take cognizance of offence on the sole ground that the complainant was not competent to file the complaint. Mr. Roy points out that in the Companies Act there is no such statutory provision prescribing any special qualification or eligibility criteria for the complainant to lodge a complaint. 8. Mr. Roy next relies on a judgment of the Hon'ble Supreme Court reported in Bhimappa Bassappa Bhu Sanwar vs. Laxman Shivarayappa & other, AIR 1970 SC 1153 , wherein it was held by the Hon'ble Supreme Court in paragraph II as follows:- ''The word complaint has a wide meaning since it includes even an oral allegation. It may, therefore, be assumed that no form is prescribed which the complaint must take. It may only be said that there must be an allegation which prima facie discloses the commission of an offence with the necessary facts for the Magistrate to take action. Section 190(1)(a) makes it necessary that the alleged facts must disclose the commission of an offence." 9. Mr. Roy also relies upon a judgment reported in A.R. Antulay vs. R.S. Nayak & another, AIR 1984 SC 718 . Mr. Roy refers to paragraph 6 of the said judgment which is as follows:- "It is a well recognized principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating as offence indicates to the contrary. The Scheme of the Criminal P.C. envisages that parallel and independent agencies for taking criminal offences to Court. Even for the most serious offence of murder, it was not disputed that a private complaint can not only be filed but can be entertained and proceeded with according to law. Locus standi of the complainant is a concept foreign to criminal jurisprudence saves and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision. Locus standi of the complainant is a concept foreign to criminal jurisprudence saves and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision. Numerous statutory provisions can be referred to in support of this legal position such as:- (i) Section 187-A of Sea Customs Act, 1878 (ii) Section 97 of Gold Control Act, 1968 (iii) Section 6 of Import and Export Control Act, 1947 (iv) Section 271 and section 279 of the Income Tax Act, 1961 (v) Section 61 of the Foreign Exchange Regulation Act, 1973 (vi) Section 621 of the Companies Act, 1956 (vii) Section 77 of the Electricity Supply Act. This list is only illustrative and not exhaustive. While section 190 of the Criminal P.C. permits anyone to approach the Magistrate with a complaint, it does not prescribe any qualification the complainant is required to fulfill to be eligible to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in sections 195 to 199 of the Cr. P.C. These specific provisions clearly indicate that in the absence of any such statutory provision, a locus standi of a complainant is a concept foreign to criminal jurisprudence." 10. Relying upon the aforesaid judgments of the Hon'ble Apex Court it is submitted by Mr. Roy that the learned Magistrate once finding that the accused person ceased to be an employee of the Company and that he wrongfully withheld the flat in question, should not have acquitted the accused solely on the ground that the complainant was not duly authorised to file the complaint on behalf of the Company. It is further submitted by Mr. Roy that since the Company is a juristic person it has to act through somebody. It would be a fair and substantial compliance with the provisions of the Companies Act, 1956 if the constituted Attorney appointed by the Board of the Company, in turn delegates his power to file a criminal complaint on its behalf. Mr. Roy that since the Company is a juristic person it has to act through somebody. It would be a fair and substantial compliance with the provisions of the Companies Act, 1956 if the constituted Attorney appointed by the Board of the Company, in turn delegates his power to file a criminal complaint on its behalf. Mr. Roy also submits that since there is no such provision in the Companies Act indicating any special qualification and/or eligibility of the complainant to file a complaint the judgment and order of acquittal solely on the ground of maintainability of the complaint suffers from serious illegality and the same is liable to be set aside. 11. Mrs. Chandreyee Alam, learned Advocate appearing for the accused opposite party submits that the finding of the learned Magistrate that the accused/ employee ceased to be an employee of the Company and was in unauthorised occupation of the flat, is absolutely a wrong finding. It is the further submission of Mrs. Alam that there is a Board of Directors of the Company. But there is no resolution of the Board authorising the complainant to file the complaint. A mere authorisation by C.S. Ashok Kumar, General Manager (Legal & Secretariat) is not enough. But I am unable to accept such contention in view of the discussions made above and the judgments of the Hon'ble Supreme Court referred to above. Since there is no provision in the Act itself indicating any special qualification and/or eligibility of the complainant, as it is found in some other Acts referred to in paragraph 6 of the judgment in the case of A.R. Antulay vs. R.B. Nayak (supra), the learned Magistrate, in my considered view, was totally wrong in holding that the complaint filed by the present complainant was not maintainable in absence of valid authorisation. 12. The next submission made by the learned Advocate of the opposite party is that the dispute between the parties is purely civil in nature and the accused/opposite party has already filed a civil suit seeking for declaration that he continues to be in service in the. Company and the said civil suit is still pending. According to the learned Advocate since the civil suit is pending between the parties the criminal prosecution under section 630 of the Companies Act was not at all maintainable. Company and the said civil suit is still pending. According to the learned Advocate since the civil suit is pending between the parties the criminal prosecution under section 630 of the Companies Act was not at all maintainable. But I am unable to accept such submission made by the learned Advocate of the accused/opposite party at this stage. In a number of decisions of the Hon'ble Supreme Court it has been held that pendency of a civil suit cannot stand in the way of criminal prosecution. Merely because a civil claim is maintainable, it can not be said that a criminal prosecution can not be maintained. Apart from this, such point should not be allowed to be raised by the accused/opposite party at this appellate stage in an appeal preferred by the complainant against the order of acquittal. 13. I have heard the learned Advocates of the respective parties. I have also gone through the judgments referred to above. In view of the discussions made above I find sufficient merit in the submission made by Mr. Roy, learned Advocate of the complainant/ appellant. The Company is a juristic person and it has to act through somebody. The complainant is the Manager (Law), Principal Officer of the Company and also an authorised representative of the Company. It has already been stated above that there is no provision in the Companies Act itself indicating any special qualification eligibility of the complainant, as it is found in some other Acts. In absence of any such special provision in the Companies Act the learned Magistrate should not have held the complaint to be not maintainable in absence of any valid authorisation. 14. After going through the evidence on record and the exhibits I find that the learned Magistrate was justified in holding that the accused ceased to be an employee of the Company and since he was not entitled to the accommodation provided by the Company and since he refused to vacate the premises, it was held that he wrongfully withheld the flat in question. I do not find any reason to interfere with such finding. I do not find any reason to interfere with such finding. But in my considered view the learned Magistrate once holding that the accused/opposite party ceased to be an employee of the Company and that he wrongfully withheld the flat in question, should not have acquitted the accused/opposite party of the charge under section 630 of the Companies Act solely on the ground of maintainability of the complaint. 15. The present appeal is accordingly allowed. The impugned judgment and order of acquittal is set aside. The accused person is found guilty and is convicted under section 630 of the Companies Act and he is sentenced to pay a fine of Rs. 1000/-. 16. The application filed by the complainant/appellant praying for vacating and delivering up the possession of the flat in question to the complainants company is accordingly disposed of in view of the judgment delivered by this Court setting aside the order of acquittal and convicting the accused and sentencing him to pay a fine of Rs. 1000/-. The accused/respondent shall vacate and deliver the possession of the flat in question to the complainant company within a period of one month from date. 17. The application being CRAN No. 790 of 2001 is accordingly disposed of. 18. The lower court records along with the judgment of this court may be sent down to the court below immediately. Appeal allowed.