JUDGMENT : This appeal has been preferred by the appellant complainant challenging the legality and correctness of the judgment passed by Special Court for Economic Offences, Bengaluru in C.C.No.236/2017 dated 18.3.2019, where under the complaint filed by the complainant came to be dismissed by acquitting the accused. 2. have heard the learned Senior Counsel Sri. Udaya Holla on behalf of Sri. L.M.Chidanandaya, Advocate for appellant and have also heard Sri. M.R. Narayan, Advocate for respondent. 3. Though this case is listed for admission, with the consent of the learned counsel appearing for the parties, the same is taken up for final disposal. 4. Case of the complainant in brief is that premises bearing No.49 was obtained on lease for sum of Rs.50,000/-per month. Since accused was appointed as Marking Manager in the complainant Company, the said premises was allotted as official quarters to the accused. Accused resigned through letter dated 8.10.2016 and the same was accepted on 10.10.2016 by Board of Directors. It is further case of the complainant that complainant called upon the accused to quit and hand over the vacant possession of the scheduled premises, but accused sought some time to vacate till the end of November 2016, but he failed to keep his promise. Thus, complainant through letter 22.3.2017 called upon the accused to vacate and hand over the possession of the schedule premises. Subsequently accused created the documents contending that one Mr.M.Babanna has agreed to give the schedule premises as gift and he also filed suit in O.S.No.2322/2017. As the accused did not vacate the schedule premises and has committed an offence under Section 452 of the Companies Act (hereinafter called as an ‘Act’ in short), complainant got issued legal notice dated 24.4.2017 to vacate and hand over the schedule premises, but he did not vacate, as such private complaint was registered. The Court below took the cognizance, summoned the accused, after following the formalities charge was framed. Accused pleaded not guilty, he claims to be tried, as such the case was fixed for trial. 5. Complainant got examined two witnesses and got marked 53 documents. Thereafter the statement of the accused was recorded and accused got examined himself as DW1 and got marked 173 documents. After hearing the learned counsel appearing for the parties, the impugned judgment of acquittal came to be passed. Challenging the same, the complainant appellant is before this Court. 6. 5. Complainant got examined two witnesses and got marked 53 documents. Thereafter the statement of the accused was recorded and accused got examined himself as DW1 and got marked 173 documents. After hearing the learned counsel appearing for the parties, the impugned judgment of acquittal came to be passed. Challenging the same, the complainant appellant is before this Court. 6. It is the specific contention of the learned Senior Counsel that the respondent was an employee of M/S. P.M. Granites Exports Private Limited, subsequently he resigned to the said post on 8.10.2016 and the same was accepted by the Board on 10.10.2016 and as such he is not an employee of the complainant Company. As per Section 452 of the Act he is liable to be evicted and liable to be prosecuted and punished in this behalf. It is his further submission that the fact of resignation has not been denied and the signature therein has also not been disputed. Under such circumstances, legally he is not entitled to continue in the said premises. It is his further submission that TDS Certificate got marked at Ex.P36 clearly goes to show that TDS has been deducted in respect of salary of the accused for the period from 1.4.2015 to 31.3.2016. It is his further submission that the lease property is bearing No.49, (old No.218), even all the endorsement of BBMP and the Police clearly establishes the fact that the respondent accused is in occupation of premises bearing No.49, BTM Layout, 2nd Stage, Rashtrakavi Kuvempu Nagar, Bannerghatta, Bengaluru. It is his further submission that earlier the accused was working with M/S. P.M. Swimming Centre and subsequently the said centre was closed and accused was taken to M/S.P.M.Granite Exports Private Limited. Even EPF and other records clearly go to show that his services have not been continued. It is his further contention that by fabricating the document he created the documents of assuring that the property will be transferred to him by Mr.M.Babanna. It is his further contention that in reply Ex.P14 given by the accused clearly goes to show that accused was entrusted with responsibility of M/S. P.M. Granites Exports Private Limited. It is his further submission that Ledger Account Ex.P4 shows the rent having been paid by the company to Mr. M. Babanna so also the TDS Certificate. It is his further contention that in reply Ex.P14 given by the accused clearly goes to show that accused was entrusted with responsibility of M/S. P.M. Granites Exports Private Limited. It is his further submission that Ledger Account Ex.P4 shows the rent having been paid by the company to Mr. M. Babanna so also the TDS Certificate. Even the records at Ex.P18 given by BBMP and the police clearly gives the picture that accused is in occupation of the premises and Ex.P20 Khata Certificate shows that Mr. M. Babanna is the owner of the property and as per the lease agreement Ex.P3 the said property has been leased out to the complainant Company and lease agreement has also been proved by examining PW2. It is his further contention that though all these grounds have been urged, the Court below erroneously come to the conclusion that the accused is not an employee in House No.49 and the provisions of Section 452 of the Act are not attracted. It is his further submission that the signature on the document has not been denied by the accused. Under such circumstances, the trial Court ought to have allowed the complaint and an order of eviction and punishment could have been passed. It is his further submission that though all these grounds have been urged before the trial Court, the trial Court without application of mind and without answering the said issues has erroneously passed the judgment of acquittal. It is his further submission that the criminal proceedings not barred by the proceedings initiated in civil Court. In order to substantiate his argument he relied upon the decision in the case of Shubh Shanti Services LTD. Vs. Manjula S. Agarwalla and Others reported in (2005) SCC 30. It is his further contention that as per Section 452 of the Act, if any officer or employee of company wrongfully withholds the property of the company, company can proceed against such persons under the said provision of law and even pendency of civil suit to the said premises is not barring the proceedings under the criminal procedure. In this behalf he relied upon the decision in the case of Gopika Chandrabhushan Saran and another Vs. XLO India Limited and another reported in (2009) SCC 342. In this behalf he relied upon the decision in the case of Gopika Chandrabhushan Saran and another Vs. XLO India Limited and another reported in (2009) SCC 342. On these grounds he prayed to allow the appeal and to set aside the impugned judgment of acquittal passed by the trial Court and appropriate legal order may be passed. 7. Per contra, the learned counsel for the respondent accused vehemently argued and submitted that to attract the provisions of Section 452 of the Act there must be relationship of an employer and employee. Accused is working originally with M/S.P.M. Swimming Centre and the said house has been provided by Mr.M.Babanna. Mr.M.Babanna was working in different Company and he is not partner or concerned with M/S.P.M.Granite Exports Private Ltd. In that light, it is his submission that the accused is not an employee. It is his further submission that the accused is in possession of the premises bearing No.115 and all the addresses corresponds with reference to the premises bearing No.115 and not with the premises bearing No.49 as contended by the complainant. Accused is in occupation of the premises while he was working in M/S.P.M.Swimming Centre. It is his further submission that the documents pertaining to the Government vis-à-vis the documents of the complainant are not tallying with each other. It is his further submission that since from beginning he was working in M/S.P.M.Swimming Centre. But for temporary and limited period he has worked with M/S.P.M. Constructions. Thereafter, he resigned in M/S.P.M. Construction and went back to M/S.P.M. Swimming Centre. The pay slip and other records clearly go to show that they have been signed by Mr.M.Babanna, one of the Director of the M/S.P.M.Swimming Centre. It is his further submission that privilege has been given to the accused under Section 452 of the Act. When the complainant is not proprietary concern, then under such circumstances the only alternative left open to the complainantCompany is to lift the Corporate Weal and settle the matter. It is his further submission that the said property including the car has been given to him since there was an understanding between Mr.M.Babanna and the accused. When the complainant is not proprietary concern, then under such circumstances the only alternative left open to the complainantCompany is to lift the Corporate Weal and settle the matter. It is his further submission that the said property including the car has been given to him since there was an understanding between Mr.M.Babanna and the accused. It is his further submission that Ex.P3 has been fabricated and when M/S. P.M.Granite Exports Private Ltd. and M/S. P.M.Swimming Centre, are two different entities, then under such circumstances the complaint is not maintainable and it cannot be considered as one unit. In that light, Section 452 of the Act is not applicable. The TDS deduction and other deductions are pertaining to the M/S. P.M.Swimming Centre. It is his further submission that, earlier the complainant filed original suit No.2260/2018 for similar relief, now the present petition has been filed with the same prayer in different forum. When the civil court has jurisdiction to determine the questions arising in the case, then under such circumstances, the Magistrate has no jurisdiction to pass orders of eviction and convict under Section 452 of the Act. In order to substantiate his arguments he relied upon decision in the case of Damodar Das Jain Vs. Krishna Charan Chakraborthi and another reported in (1989) SCC 531. It is his further submission that in order to file an application under Section 452 of the Act, the property of the company must be definite and it should not be subject matter of controversy. Since the procedure adopted in the said section is summary proceedings, the matter has to be decided in civil courts. In order to substantiate his said contention he relied upon the decision in the case of Damodar Das Jain quoted supra. It is his further submission that the complainant has not produced any tax receipt of the premises and the principles of estopel will be made applicable when the said property has been given by Mr.M.Babanna to the accused. In order to substantiate his argument he relied upon decision in the case of M/S.Karamchand Ganga Pershad and another Vs. Union of India and Others reported in AIR 1971 SC 1244 . It is his further submission that the appeal itself is in-fructuous. The Power of Attorney Holder has filed petition antidated. In order to substantiate his argument he relied upon decision in the case of M/S.Karamchand Ganga Pershad and another Vs. Union of India and Others reported in AIR 1971 SC 1244 . It is his further submission that the appeal itself is in-fructuous. The Power of Attorney Holder has filed petition antidated. The said agreement and other things have been fabricated and created only for the purpose of evicting the accused. The appellant has not made out any good grounds to interfere with the judgment of the trial Court. The trial Court after considering all the materials has rightly come to right conclusion. There are no good grounds to interfere with. On these grounds he prayed to dismiss the petition. 8. have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties and have also perused the records including the Lower Court Records. 9. It is the specific case of the complainant that complainant company obtained the scheduled premises for lease and as the accused was working as Marking Manager in the complainant company and he was also General Manager operations. He has been allotted the schedule premises as official quarters to the accused and accused has resigned through letter dated 8.10.2016 and the same has been accepted by the Board of Directors on 10.10.2016. It is the contention of the accused that he was working at M/S. P.M. Swimming Centre, Mr. M. Babanna provided the house bearing No.115. Accused was transferred to complainant-company in the month of September 2015 and there he worked up to 30.1.2016 for period of four months and thereafter he returned back to M/S.P.M. Swimming Centre and worked there up to 8.10.2016. When he was working so, Mr. M. Babanna promised to gift the house where the accused is residing and as such the said Mr. M. Babanna is the owner of the premises and nothing to do with the complainant company. 10. When he was working so, Mr. M. Babanna promised to gift the house where the accused is residing and as such the said Mr. M. Babanna is the owner of the premises and nothing to do with the complainant company. 10. Before going to consider the contentions raised by the learned counsels appearing for the parties, quote Section 452 of the Companies Act which reads as under: “452: Punishment for wrongful with holding of property.(1) If any officer or employee of company (a) wrongfully obtains possession of any property, including cash of the company or (b) having any such property including cash in his possession, wrongfully withholds it or knowingly applies it for the purposes other than those expressed or directed in the articles and authorized by this Act, he shall, on the complaint of the company or of any member or creditor or contributory thereof, be punishable with fine which shall not be less than one lakh rupees but which may extend to five lakh rupees. (2) The Court trying an offence under subsection (1) may also order such officer or employee to deliver up or refund, within time to be fixed by it, any such property or cash wrongfully obtained or wrongfully withheld or knowingly misapplied, the benefits that have been derived from such property or cash or in default, to undergo imprisonment for term which may extend to two years.” It also corresponds with Section 630 of the Companies Act, 1956. 11. Section 452 of the Act if it is closely read, it applies to “employee” and other persons who are working in the said company. The said provision applies if an employee after termination of his services, wrongfully withholds the property. Then under such circumstances, it comes into operation and in that light on the complaint of the company or on the complaint of any person on behalf of the company, accused be punishable with fine and imprisonment for term up to two years. 12. It is also well proposed proposition of law that Act applies to only to cases where there is no bona fide dispute that the property withheld is the property of the company and it does not apply when there is bona fide dispute of purely civil in nature regarding title to the property. 12. It is also well proposed proposition of law that Act applies to only to cases where there is no bona fide dispute that the property withheld is the property of the company and it does not apply when there is bona fide dispute of purely civil in nature regarding title to the property. The learned Magistrate cannot and should not venture to determine such dispute under the present section, as the present section is of summary in nature. This proposition of law has been laid down by the Hon’ble Apex Court in the case of DamodarDasJainquotedsupra quoted supra, 13. What is required under Section 452 of the Act is wrongfully withholding of the property of the Company. If there is dispute regarding title to the property of the company, the enquiry will be held in this behalf. The second aspect is whether the official has committed breach in respect of the property which he has held. The Hon’ble Apex Court has also laid down that mere filing of civil case questioning the tenancy rights of the company to the premises which were in the possession of the employee immediately before resignation may not constitute bona fide dispute and if it is found that the company’s right to the premises is quite explicitly valid and the employees stand is utterly baseless. The Court can exercise its jurisdiction under the said section. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Atul Mathur Vs. Atul Kalra and another reported in (1990) 68 Company Cases 324. At paragraph No.16 it has been observed as under: 16. All these factors have unfortunately escaped the notice of the High Court and the omission has led the High Court to accept Respondent 1's contention that there was bona fide dispute between him and the company as to who was the actual licensee of the flat. We have already referred to the relevant portions of the leave and licence agreement and the affidavit and letter of Respondent wherein he has categorically accepted that the company was the licensee of the flat. Secondly, the evidence projected by Respondent to lay claim to licence rights over the flat is his own creation without the knowledge of the company. We have already referred to the relevant portions of the leave and licence agreement and the affidavit and letter of Respondent wherein he has categorically accepted that the company was the licensee of the flat. Secondly, the evidence projected by Respondent to lay claim to licence rights over the flat is his own creation without the knowledge of the company. The two letters in question had been obtained from junior employee who had joined the company long after the flat was taken on rent and who knew nothing of the agreement between the company and the owner of the flat. The author of the letters has himself confessed that he had signed the letters at the behest of Respondent without knowing the implications of his act. Leaving aside these factors, even if we are to take that Mr Jain had of his own accord written the letters, can it ever be said that the letters afford scope for Respondent to contend that he is bona fide entitled to dispute the company's claim to possession of the flat? The sequence of events also go to show that Respondent had formulated plan for clinging to his possession of the flat even after resigning his post and in accordance with that plan he had obtained the letters Exts. and and then filed suit in order to forestall the company from proceeding against him under Section 630 of the Companies Act. Merely because Respondent had schemingly filed suit before tendering his resignation, it can never be said that the civil court was in seisin of bona fide dispute between the parties and as such the criminal court should have stayed its hands when the company filed complaint under Section 630. If view is mechanically taken that whenever suit has been filed before complaint is laid under Section 630, the criminal court should not proceed with the complaint, it would not only lead to miscarriage of justice but also render ineffective the salutary provisions of Section 630. 14. It is well settled proposition of law that the criminal proceedings not barred by interim order in civil proceedings. It has been laid down in Shubh Shanti Services Ltd. quoted supra. At paragraph No.17 it has been read as under: 17. 14. It is well settled proposition of law that the criminal proceedings not barred by interim order in civil proceedings. It has been laid down in Shubh Shanti Services Ltd. quoted supra. At paragraph No.17 it has been read as under: 17. On 23121994, Respondents and filed Civil Suit No. of 1995 for specific performance of the contract for transfer of the flat at Blue Heaven Cooperative Housing Society. The High Court had passed an order with the consent of the parties that the plaintiff i.e. Respondent shall not be dispossessed from the premises i.e. flat at Sonmarg except with due process of law. The proceedings taken up by the appellant in the Court under Section 630 of the Companies Act were held not to be proceedings under due process of law. We have already seen that Section 630 of the Companies Act provides for summary legal remedy for seeking possession of the property of the company. Due process of law in the present context would ordinarily mean such an exercise of power by the parties as the settled principles of law permit and/or course of legal proceedings, according to those rules and principles which have been established in our systems of jurisprudence for the enforcement and protection of private rights. Due process of law would in short mean procedure established by law, which is procedure fixed or laid down in law. When the High Court has passed an order of injunction, in the aforesaid terms, what is meant by the High Court is, that the Company shall not take forcible possession of Sonmarg flat during the pendency of the suit and the Company was given liberty to take steps for possession as is permissible under law including the provisions of any statute giving right to obtain possession to the company in the facts and circumstances of the case. The company can prove unlawful possession of the property by the employee or his or her legal representative after the demise of the employee or an officer of the company. The company has the remedy to initiate action under Section 630(1) and on conviction by the competent criminal court it can approach the same court for directing delivery of possession which subsection (2) of Section 630 of the Companies Act provides. The company has the remedy to initiate action under Section 630(1) and on conviction by the competent criminal court it can approach the same court for directing delivery of possession which subsection (2) of Section 630 of the Companies Act provides. The remedy is provided in the statute itself and the High Court's order by no stretch of imagination can be read to mean that the Company has to necessarily approach the civil court only for obtaining possession of the Sonmarg flat and that the remedy available under the Companies Act cannot be resorted to. In our opinion the decision of the High Court that Section 630 of the Companies Act being penal in nature, the proceeding there under cannot be construed to be proceeding taken in due process of law, cannot be sustained. Filing of civil suit for possession by the Company does not deprive the Company of the right to institute prosecution under the Companies Act and incidentally get an order for delivery of possession. It is stated that the civil suit was filed by way of abundant caution as well as to obtain relief’s which cannot be granted by criminal court trying an offence under Section 630. 15. It is also held in the case of Gopika Chandrabhushan Saran and another quoted supra that if an employee wrongfully withholds the property of the company and there is pendency of suit in relation to the said premises is not bar, however if he succeeds in the civil suit, he is entitled to restitution. It has been held at paragraph Nos.27 and 28 it has been observed as under: 27. Considering the facts and circumstances of the present case, we hold that the respondent Company was within its jurisdiction to get the suit premises vacated under the provisions of Section 630 of the Act. We also hold that the learned courts below were justified in arriving at finding that the provisions of Section 630 of the Act are applicable to the facts and circumstances of the present case. Consequently, the courts below also acted within their power and jurisdiction in directing for vacation of the suit premises by the appellants. 28. While upholding the said order of the courts below, we however observe that the proceedings were initiated in the Small Cause Court by filing suit which is pending as of now. Consequently, the courts below also acted within their power and jurisdiction in directing for vacation of the suit premises by the appellants. 28. While upholding the said order of the courts below, we however observe that the proceedings were initiated in the Small Cause Court by filing suit which is pending as of now. There was an interim order passed in the said suit directing for maintenance of status quo. Since we have held that the provisions of Section 630 of the Act are applicable to the present case, we hold that the directions of the court below in this case would be implemented subject to the condition that if the aforesaid suit is finally decided in favour of the appellants, the appellants shall be entitled to an order of restitution, if so directed, in accordance with law and that such an order shall be given effect to in accordance with law. 16. Though in the earlier decision of Damodar Das Jain it has been observed that the Magistrate has no jurisdiction to pass order of eviction if civil dispute is pending, subsequently in the case of Atul Mathur quoted supra it has been observed that if the accused had schemingly filed suit in civil court, it can never be said that the civil court was in seisin of bona fide dispute between the parties and if it is held that the civil dispute is there it amounts to nothing but miscarriage of justice and subsequently in the case of Shubh Shanti Services Ltd. it - 25 has been observed that criminal proceedings not barred by interim order in civil proceedings. In that light, the trial Court ought to have taken proper course in deciding the case. When accused has made out case that the said property has been given to him by Mr.M.Babanna, then he could have produced relevant documents. If any interest or title in immovable property is transferred, it must be only through registered documents. Even the accused has not stated as to when he has got the property from Mr.Babanna. 17. Leave apart, accused has not stated as to where he was working at the relevant point of time. The trial Court has not looked into all these aspects. Even the accused has not stated as to when he has got the property from Mr.Babanna. 17. Leave apart, accused has not stated as to where he was working at the relevant point of time. The trial Court has not looked into all these aspects. When the said Mr.M.Babanna himself has come before the Court and deposed on behalf of the company, then under such circumstances, how far the contention of the accused is truthful, that too when the relationship between him and company has not been disputed. Accused respondent is not having any right to question the same. In that light also, the trial Court has erred. Hence, the trial Court has not looked into the factual matrix of the case and decided the same in accordance with law. When the other aspects are not so relevant, much importance ought not to have been given to the said facts and the complaint ought not to have been dismissed. No proper findings have been given by the trial Court. The trial Court without application of the mind and the law has passed the impugned order. In that light, feel that the matter requires to be remitted to the Court below to once again give full opportunity to both the parties and thereafter, as observed above, keeping in view the proposition of law and facts, dispose of the case in accordance with law. 18. In that light, appeal is allowed. The judgment passed by the Special Court for Economic Offences, Bengaluru, in C.C.No.236/2017 dated 18.3.2019 is set aside and the matter is remitted to the Court below to dispose of the same in accordance with law. Registry is directed to send back the Lower Court records forth with.