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2019 (1) TMI 1255 - DELHI HIGH COURTOffense under companies act - - Penalty for wrongful withholding of property - acquiring dominion over the immoveable property - control over the moveable properties of the complainant company lying in the premises though resigned from the Board of directors - offences punishable under Sections 630 of the Companies Act, 1956 and Sections 406/408/441 of Indian Penal Code, 1860 (IPC) - whether a case of “employer-employee” relationship between the complainant company and the first accused can be assumed? Held that:- The first accused Kamlesh Kumar Goel, being a director of the company, would be covered under the description “officer” as used in Section 630 of the Companies Act, 1956 and there is no escape from his accountability to restore and return the property of the company over which he may have had acquired dominion during the period he was associated with it. For the above reasons, the impugned order of the revisional court is found to be wholly erroneous and, thus, must be set aside. At the same time, this court also finds substance in the submissions of the petitioners that the order of summoning passed by the ACMM was also deficient in that in spite of there being sufficient material presented in the pre-summoning inquiry, the summoning order does not cover criminal prosecution for offences of criminal breach of trust or criminal trespass. There is no inhibition in law that if the company seeks prosecution for the offence under Section 630 of the Companies Act, 1956, it cannot invoke the penal provisions under the general law, as provided in the Indian Penal Code, 1860. There is clear evidence adduced in the pre-summoning inquiry indicating that Kamlesh Kumar Goel (the first accused) had acquired dominion over the aforementioned premises of the complainant company on account of he being then a director on its Board. His acquiring dominion over the said immoveable property, and the moveable properties referred to earlier lying therein, initially may have been lawful. But then, they remained property – immoveable and moveables – over which he had no title of his own. They belong to the complainant company. His possession of the premises became unlawful, after he had resigned from the Board of directors, in the wake of which event he was duty bound to restore its possession to the lawful owner. His control over the moveable properties of the complainant company lying in the premises was also in the nature of trust. After he had resigned from the Board of directors he was obliged in law, particularly on demand being made to such effect (as is alleged), to return the said moveable property to its original owner and failure to do so would prima facie constitute the offence of criminal breach of trust. The complainants’ request for summoning order to be passed additionally for offences under Section 408 IPC and 447 IPC should also have been properly construed, considered and granted. The order of the ACMM dated 15.09.2015 declining to pass summoning order for such offences does not set out any reasons worth the name for such disinclination, rendering it vitiated. Thus the petitions are allowed - Order setting aside the summoning order dated 15.09.2015 passed by the ACMM on the criminal complaint of the petitioners is vacated. The order of the ACMM summoning the respondents stands restored with modification to the effect that the respondent Kamlesh Kumar Goel shall also stand summoned additionally on the accusations for offences punishable under Sections 408/447 IPC.
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