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2022 DIGILAW 1129 (ALL)

Amar Dayal Singh v. State Of U. P.

2022-07-20

MANJU RANI CHAUHAN

body2022
JUDGMENT : 1. Heard Sri Hari Nath Chaubey, learned counsel for the applicant, Sri Anil Kumar Ray, learned counsel for the opposite party no.2, Sri Mayank Awasthi, learned AGA for the State and perused the records. 2. The present 482 Cr.P.C. application has been filed to quash the entire proceedings of Complaint Case no. 859 of 2020 (Hindalco Industries Ltd. Vs. Amar Dayal Singh), under Section 452 of the Companies Act, 2013 (Erstwhile Section 630 of Companies Act, 1956), Police Station-Pipri, District-Sonebhadra, pending before the Court of Special Chief Judicial Magistrate, Allahabad 3. The brief facts of the case, which are required to be stated as alleged in the application are that:- (i) The applicant was appointed as an employee of M/s. Hindalco Industries Limited (hereinafter called as “Company”), which is represented by Mr. Ashok Kumar Singh, Deputy Officer, who was duly authorized representative of the company. (ii) The appointment letter was issued to the applicant on 24.11.1994 and he joined the services of company. Thereafter, the applicant was allotted company's quarter No.PB-318 by the company in its colony vide License of Quarter dated 11.09.2006 subject to certain conditions mentioned therein. One of the conditions as mentioned in the license is that the license shall stand automatically revoked on termination of service, for any reason whatsoever, retirement, resignation, transfer etc. Subsequently, the applicant was dismissed from services of the company vide letter dated 07.03.2011. (iii) Accordingly, the applicant was no more an employee of the company with effect from 07.03.2011, i.e. the date of his dismissal from service, therefore, he had to leave the company's quarter as allotted to him. When the quarter was not vacated by the applicant, notice dated 11.03.2011 was given to the applicant to vacate the aforesaid quarter of the company by 21.03.2011 and handover the possession of the same to the company. (iv) After several reminders and final notice, when the company's quarter was not vacated, a complaint was filed on 20.10.2020 by opposite party no.2. On the aforesaid complaint, the concerned court below has summoned the applicant under Section 452 of the Companies Act, 2013 (erstwhile Section 630 of the Companies Act, 1956). 4. (iv) After several reminders and final notice, when the company's quarter was not vacated, a complaint was filed on 20.10.2020 by opposite party no.2. On the aforesaid complaint, the concerned court below has summoned the applicant under Section 452 of the Companies Act, 2013 (erstwhile Section 630 of the Companies Act, 1956). 4. Submissions of the learned counsel for the applicant are that:- (i) While summoning the applicant, the court concerned has formed its opinion that the applicant is in wrongful possession of the company's quarter without realizing the fact that the company has not paid the entire gratuity amount to the applicant for which he is entitled. No offence under Section 452 of the Companies Act, 2013 is made out against the applicant. (ii) For delayed payment of funds for which the applicant is entitled, he has already filed a C.P. No.19 of 2014 before the Deputy Labour Commissioner, Pipri, Sonebhadra, which is still pending. (iii) The applicant has also filed an application dated 25.10.2018 for payment of interest on delayed payment of gratuity as the Assistant Labour Commissioner, Pipri, Sonebhadra has passed the order dated 30.06.2018 directing for payment of 10% interest on gratuity amount of Rs. 2,10,610/-, which was paid to the applicant on 17.01.2018. The aforesaid application dated 25.10.2018 filed by the applicant is still pending. (iv) As per the relevant section, the applicant cannot be said to be wrongfully withholding the company's quarter. As the interest on gratuity amount has not been paid to the applicant, hence the summoning order is not justified in the eyes of law and the entire proceedings are bad in the eye of law. In support of his contention, he has relied upon the judgment of this Court in the case of Beer Bala Gupta vs. 15th Additional Session Judge, Meerut reported in 2002 0 Supreme(All) 307 wherein it has been held that company did not discharge its obligation, inasmuch as it did not pay the gratuity amount to the petitioner and in such view of the matter, the petitioner cannot be said to have wrongfully retained the quarter belonging to the company and, therefore, the applicant is not liable for punishment under Section 452 of the Companies Act, 2013 (erstwhile Section 630 of the Companies Act, 1956). (v) He has also placed reliance upon the judgment of Jagdish Chandra Nijhawan vs. S.K. Saraf reported in (1999) 1 SCC 119 (vi) Therefore, the prosecution against the applicant is bad in law and the entire proceedings of the aforesaid complaint case is liable to be quashed by this Court. 5. On the other hand, Mr. Mayank Awasthi, learned AGA as well as Mr. Anil Kumar Ray, learned counsel for the opposite party no.2 have opposed the submission advanced by the learned counsel for the applicant by submitting that as per the license of quarter wherein one of the conditions of license mentioned is that the license shall stand automatically revoked on termination of service, the applicant was not entitled to retain the quarter after being dismissed from service on 07.03.2011, therefore, after 07.03.2011, the applicant, who had retained the company's quarter was illegally withholding the same, hence he was liable to be punished under the relevant section of Company Act. 6. So far as the submission made by the learned counsel for the applicant regarding payment of the funds for which the applicant was entitled, learned counsel for the opposite party no.2 has stated in his counter affidavit that the provident fund of Rs. 1,17,896/-and gratuity of Rs.2,10,610/-has already been paid through Cheque No.668080 dated 27.12.2017 and interest on gratuity of Rs.1,42,806/-has already been paid to the applicant through Cheque No.015289 dated 18.08.2018. Therefore, as per the Section 452 of the Companies Act, 2013, the applicant is liable to be punished for withholding the company's quarter. 7. Learned AGA as well as learned counsel for the opposite party no.2, therefore, submits that the application filed by the applicant for payment of interest on delayed payment, is nothing but a via media to show that certain payments have not been paid to the applicant in order to wrongly withhold the company's quarter allotted to him. 8. Learned counsel for the opposite party no.2 further submits that the applicant is not entitled for any relief, as, once the right of the employee to retain the possession of property on account of dismissal from services has extinguished, then he is under an obligation to return the property back to the company. 8. Learned counsel for the opposite party no.2 further submits that the applicant is not entitled for any relief, as, once the right of the employee to retain the possession of property on account of dismissal from services has extinguished, then he is under an obligation to return the property back to the company. In support of his contention, he has relied upon the judgment of Apex Court in the case of Gopika Chandrabhushan Saran and Another vs. M/s. XLO India Ltd. and Another reported in (2009) 3 SCC 342 , wherein the Apex Court has held as under:- “The capacity, right to possession and the duration of occupation are all features which are integrally blended with the employment. Once the right of the employee or the officer to retain the possession of the property, either on account of termination of services, retirement, resignation or death, gets extinguished, they (persons in occupation) are under an obligation to return the property back to the company and on their failure to do so, they render themselves liable to be dealt with under Section 630 of the Act for retrieval of the possession of the property.” 6. On the cumulative strength of the aforesaid, learned AGA as well as learned counsel for the opposite party no.2 submits that available material is enough to summon accused person and considering material on record, it can not be said that no evidence is made out against the applicant, therefore, the proceedings of the aforesaid case cannot be quashed, as such no interference is required in the matter by this Court at this stage. 10. I have considered the submissions advanced by the learned counsel for the parties as well as have gone through the records of the present application along with the impugned order. 11. Before proceeding to deal with the submissions made by the learned counsel for the parties, it will be appropriate to place the extract of Section 452 of the Companies Act, 2013, which is as follows:- “Section 452: Punishment for wrongful withholding of property. 11. Before proceeding to deal with the submissions made by the learned counsel for the parties, it will be appropriate to place the extract of Section 452 of the Companies Act, 2013, which is as follows:- “Section 452: Punishment for wrongful withholding of property. (1) If any officer or employee of a 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 authorised 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 sub-section (1) may also order such officer or employee to deliver up or refund, within a 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 a term which may extend to two years. {Provided that the imprisonment of such officer or employee, as the case may be, shall not be ordered for wrongful possession or withholding of a dwelling unit, if the court is satisfied that the company has not paid to that officer or employee, as the case may be, any amount relating to—(a) provident fund, pension fund, gratuity fund or any other fund for the welfare of its officers or employees, maintained by the company; (b) compensation or liability for compensation under the Workmen’s Compensation Act, 1923 in respect of death or disablement.} 12. Proviso to the aforesaid section provides that the punishment of the officer or employee, as the case may be, cannot be ordered for wrongful possession or withholding of the company's quarter, the company has not paid to that officer or employee the provident fund, pension fund, gratuity fund or any other funds for which the officer or employee is entitled. 13. 13. From the records, it is clear that the complaint contains the allegation that the company's quarter allotted to the applicant was not vacated in spite of repeated notices to him, after the applicant was dismissed from service on 07.03.2011 and the funds for which the applicant was entitled, was already paid to him with interest, therefore, as per the provisions of Section 452 of the Company's Act, the applicant is liable to be punished for withholding the company's quarter. 14. In exercise of power under Section 482 of the Cr.P.C., the Court does not examine the correctness of the allegations in a complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence. The Court can not look into the fact as to whether the allegations in the complaint are true or untrue and the same has to be decided by the trial court, thus no interference is required in such cases as the present one. Even though, the inherent power of the High Court under Section 482 Cr.P.C., to interfere with criminal proceedings is wide, such power has to be exercised with circumspection, in exceptional cases. Jurisdiction under Section 482 of the Cr.P.C. is not to be exercised for the asking. 15. The aforesaid has been held by the Apex Court in the case of State of Haryana and Ors. vs. Bhajan Lal and Ors. reported in 1992 Suppl.(1) SCC 335. The relevant paragraph of the aforesaid judgment reads as under:- “103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” 16. The following observations has also been made by the Apex Court in the latest judgment of Ramveer Upadhyay & another vs. State of U.P. & another reported in 2022 Livelaw (SC) 396. Paragraph no.39 of the aforesaid judgment reads as under:- "39. The following observations has also been made by the Apex Court in the latest judgment of Ramveer Upadhyay & another vs. State of U.P. & another reported in 2022 Livelaw (SC) 396. Paragraph no.39 of the aforesaid judgment reads as under:- "39. In our considered opinion criminal proceedings cannot be nipped in the bud by exercise of jurisdiction under Section 482 of the Cr.P.C. only because the complaint has been lodged by a political rival. It is possible that a false complaint may have been lodged at the behest of a political opponent. However, such possibility would not justify interference under Section 482 of the Cr.P.C. to quash the criminal proceedings. As observed above, the possibility of retaliation on the part of the petitioners by the acts alleged, after closure of the earlier criminal case cannot be ruled out. The allegations in the complaint constitute offence under the Attrocities Act. Whether the allegations are true or untrue, would have to be decided in the trial. In exercise of power under Section 482 of the Cr.P.C., the Court does not examine the correctness of the allegations in a complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence.............” 17. In fact while exercising the inherent jurisdiction under Section 482 Cr.P.C. or while wielding the powers under Section 226 of the Constitution of India the quashing of the complaint can be done only if it does not disclose any offence or if there is any legal bar which prohibits the proceedings on its basis. The Apex Court decisions in R.P. Kapur Vs. State of Punjab reported in AIR 1960 SC 866 and State of Haryana Vs. Bhajan Lal reported in 1992 SCC(Cr.) 426 make the position of law in this regard clear recognizing certain categories by way of illustration which may justify the quashing of a complaint or charge sheet. 18. In view of the above, this Court finds that the applicant was dismissed from services on 07.03.2011, thus he is under an obligation to return back the company's quarter, but the applicant was illegally withholding the same, hence he is liable to be punished under the relevant section. 18. In view of the above, this Court finds that the applicant was dismissed from services on 07.03.2011, thus he is under an obligation to return back the company's quarter, but the applicant was illegally withholding the same, hence he is liable to be punished under the relevant section. The payment for which he was entitled has already been paid, therefore, the case laws referred by learned counsel for the applicant is not applicable in the present case and the court concerned has rightly summoned the applicant under Section 452 of the Companies Act, 2013. 19. Considering the facts and circumstances of the case, this Court finds that the present matter does not fall in any of the categories recognized by the Apex Court, which might justify interference by this Court in order to quash the proceedings. Therefore, the prayer for quashing the entire proceedings of aforesaid complaint case is refused as I do not see any abuse of the court's process either. 20. The present application lacks merit and is, accordingly, rejected.