TMI Blog1980 (9) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... d branch office functioning at Veer Nariman Road, Bombay-20 (shortly called as "the company"). The premises in question comprise of a flat approximately 3,500 sq. ft. in area located at Mayfair Gardens, Little Gibbs Road, Bombay, and the third terminus is the petitioner who was at one time in the employment of the said company in its branch office at Bombay. The proceeding revolves around these three terminii. The petitioner was appointed as the manager of the Bombay branch of the company some time in the year 1963. In his capacity as such, that is the manager of the company, he was allowed to enter into and use the said flat situate at Little Gibbs Road, Bombay, on and from 16th November, 1963, with a clear stipulation under the service conditions that he was to remain on the said flat only as long as he continued to be in the employment of the company, whereafter, he was enjoined to hand over vacant possession of the same to the company. The company at all relevant times and continues to be the lessee of the said premises which are owned by the New India Asssurance Co. The company has been regularly paying all the rental charges and permitted increases to the tune of Rs. 1,157. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. On the second count, it was held that prima facie, section 630 of the Act would be squarely applicable to the facts of the present case. In keeping with these findings, the said application of the petitioner was dismissed by the learned Magistrate on 27th June, 1980. It is this order that is being impugned in this proceeding on behalf of the petitioner. It may be mentioned at this juncture itself that the revisional jurisdiction of this court is sought to be invoked by the petitioner as the petition is filed as a criminal revision application and the prayer made therein is that the complaint be dismissed. It is only during the course of the hearing of the matter that Shri Vakil, the learned counsel for the petitioner, made an oral motion that this should be treated in addition as a proceeding under section 482, Cr. PC, invoking the inherent powers of this court. However, no formal amendment was made, much less, any statement was added in the petition even thereafter at any time. By itself, it would be enough not to accede to the request of the learned counsel, but, however, as the interest of justice is more paramount, I allowed the learned counsel for the petitioner to adva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel on behalf of the respondent-complainant, came out with equal force and clarity, repelling the contentions of the other side. He submitted that it is apparent even from a plain reading of the provisions of section 630 of the Act that it would cover the situation as at hand, meaning thereby that if the company's flat is allotted to its officer while he is in service with an obligation to vacate the same on his going out of the company's employment and if he withholds the same even thereafter, then, he would certainly be liable under clause ( b ) notwithstanding that on the date of the complaint or the demand he may be out of employment. He also submitted that in fact in the instant case, even assuming otherwise, the company had demanded possession of the flat on the eve of the petitioner's retirement from service or at any rate synchronising with the moment of his retirement and, as such, there can be no hurdle in his way. He also submitted that the correspondence ensued between the parties would completely destroy the petitioner's claim that any fresh agreement was entered into between the parties under which his stay on the premises was extended. He also submitted that the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urposes other than those expressed or directed in the articles and authorised by this Act; he shall, on the complaint of the company or any creditor or contributory thereof, be punishable with fine which may extend to one thousand rupees. (2) The court trying the offence may also order such officer or employee to deliver up or refund, within a time to be fixed by the court, any such property wrongfully withheld or knowingly misapplied, or in default, to suffer imprisonment for a term which may extend to two years. " This section corresponds to section 282A of the old Act which does not contain much of variations and I will have an occasion to refer to that part also. Relying on these provisions contained in section 630 of the Act, Shri Vakil, the learned counsel for the petitioner, has very strenuously submitted that a harmonious reading of all the clauses contained therein must lead to the only conclusion that those will apply only to an officer or employee of the company whose capacity as such continues to exist and would not apply to a past officer or ex-employee and he has also submitted that the legislative intent is reflected in the deliberate employment of certain term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty wrongfully" and it is in this manner that the term "any such property" was sought to be equated with the said term contained in clause ( a ). The learned counsel also tried to rely on sub-clause (2) of the said provision to bolster up his proposition. Shri Modi, the learned counsel for the respondent, has with equal ability and force placed the other part of the coin which according to him is not only extremely harmonious but is the only natural consequence which must flow logically out of a plain reading of the provision. Shri Modi submitted that the phrase "any such property" used in clause ( b ) refers to the last part of clause ( a ) which characterises or describes the property and a combined reading of the said clauses would mean that what is contemplated by the term "any such property" in clause ( b ), is tantamount to say, and is equated with the character of the property, that is to say, the property of the company. According to him, a distorted version of this provision was sought to be made on behalf of the petitioner which not only does not flow naturally and logically, but is so distortive that even at the cost of making violence to the language of the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two clauses. As per clause ( a ) it envisages the possession of a property. Further, the said property is characterised in terms labelling it as the property of the company and, lastly, the mode of obtaining the said possession is qualified by the first word, meaning thereby that it must have been obtained wrongfully. The dictionary meaning of the word "wrongfully" is to the effect that it has a meaning contrary to law and justice and it is in contrast with the word "unlawfully" and it has been observed that the said word "wrongfully" has a much broader and stronger meaning than the word "unlawfully". A wrongful act is also defined as any act which in the ordinary course will infringe upon the rights of another to his damage. Therefore, a conjoint reading of clause ( a ) would mean that an officer or employee of the company would make him self liable under this provision if he wrongfully obtains possession of any property of the company. The reading of this sentence by itself is complete even if one dissects the clause which includes the noun and the verb, meaning thereby that the person is identified, the property is characterised and the act is also clarified. It is also importa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wants us to equate the terms "any such property" in clause ( b ) with the phraseology "wrongfully obtained possession" employed in clause ( a ). If this interpretation is upheld, then clause ( b ) would read as: "Having any such property in his possession and that possession is wrongfully obtained and then wrongfully withholds it or knowingly applies to purposes other than those expressed in the articles......" In the first instance, there will have to be the user of the term "in possession" more than once. However, making some charitable allowance in favour of the interpretation suggested by Shri Vakil, to put it at the minimum, the entire clause ( b ) would read as : "If any officer or employee of the company having any property of the company in his possession which was wrongfully obtained, wrongfully withholds it or knowingly misapplies it to purposes other than those expressed in the articles......" Even on a plain reading, the irrational dent and the hollowness of the said claim can be exposed. Apart from involvement of making extreme violence to the language of the provision, even the resultant phraseology makes an absolutely irrational and illogical reading. That r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ployee to deliver up or refund, within a time to be fixed by the court, any such property wrongfully obtained or wrongfully withheld or knowingly misapplied, or in default, to suffer imprisonment for a term which may extend to two years." In this sub-section also the phrase "any such property" has been utilised and the most important feature is that this qualifying term "any such property" governs all the three clauses which are specifically mentioned as: (1) wrongfully obtained, (2) wrongfully withheld, and (3) knowingly misapplied. It is thus clear that the terminology "any such property" pre-qualifies the existence of three further terms and also governs all the three contingencies and the legislative intent is made manifestly clear by the user of this terminology. This in fact supports the submission of Shri Modi that by the user of the phrase "any such property" what has been done by the Legislature is merely to tag a label or characterise the property as belonging to the company and the interpretation should go thus far and no further. A plain reading of sub-section (2) would, therefore, indicate that the court can take the action stipulated therein if any property of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, in my opinion, if any employee or officer while in continuation of his service, wrongfully obtains possession of any property of the company, he comes within the clutches of clause ( a ) of the said provision. An officer or employee who is already in possession of the property of the company, does a further act of wrongfully withholding the same or knowingly misapplying the same, then, he is covered by the ambit of clause ( b ), and this would, as a logical corollary, mean that the contingency under clause ( b ) may arise that a person may come into possession of the property of the company in a rightful manner in which event, he cannot be governed by clause ( a ), but, he will not go unpunished as the Legislature has taken care of this situation if it is found that having come into possession, may be even in a rightful manner some time in the past, if he wrongfully withholds the said possession, then, he is governed by the provision contained in clause ( b ). This would again further reinforce my observation that clause ( a ) may apply to an officer of the company who continues to be in service because it is in that capacity only that he could obtain possession of the property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is absolutely no escape from the conclusion that a past officer or a past employee of the company who rightfully obtains possession of a property by virtue of his capacity as such officer, during the continuation of his service, can commit the mischief of withholding the said property and such withholding can obviously be wrongful if he, without any semblance of right, declines to hand over possession to the company and that is how the property is deemed to have been wrongfully withheld. The term "withholding" is also pregnant with a further implication that he must be in possession initially and then only the question of withholding arises. The interpretation sought to be made by Shri Vakil is really founded on a misconceived notion or a confusion which arises on account of the fact that obtaining possession and withholding possession are sought to be confused. It is, therefore, manifest, in my opinion, without even going into the legislative intent, on a plain and rational reading of the entire provision that a contingency as propagated by Shri Modi on behalf of the complainant is fully and squarely covered by clause ( b ) of sub-section (1) of section 630 of the Act, which concl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Modi, reference to section 441, IPC, is made to a limited extent. This would again be enough to pull down the curtain on the entire controversy. However, certain facets can be incorporated in this context which may not be redundant and which would be essential for further reinforcing the conclusion which I have arrived at. As I have stated earlier, even without going into the legislative intent and even without referring to the well-settled canons of interpretation of statutes, on a plain reading of the said provision, I am firm in my opinion that the situation in which the petitioner has landed himself is clearly covered notwithstanding the fact that, at the relevant time, the petitioner ceased to be in the employment of the company. However, if any further support is necessary, then, it can be obtained on the basis of several other features which have been rightly canvassed by Shri Modi on behalf of the company to which at least a cursory and incidental reference has become inevitable. It cannot be ignored that if the interpretation sought to be placed by Shri Vakil is to be accepted apart from the most irrational reading of the provision, the consequence would be not only d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yet another criterion in support of his submission vis-a-vis the interpretation of this provision, otherwise, the provision contained in clause ( b ) would have been the aggravated form of the mischief, inasmuch as, first, there is wrongful obtaining of the possession and it is thereafter and in addition thereto that there is wrongful withholding of such wrongfully obtained possession. Shri Vakil submitted that when the alternative and the normal remedy is available, such as in an ejectment suit, the company cannot have a short-cut practically by way of summary eviction by resorting to these provisions and this itself indicates that the Legislature could not have intended to cover the case of a past employee and, therefore, these provisions should be strictly construed. This submission also has no substance. On the contrary, a reading of the said provisions together make the purpose thereof quite prominent, inasmuch as, while the anxiety is to protect the property of the company when for the conviction for the breach of clause ( a ) or ( b ), the punishment prescribed is only a sentence of fine up to Rs. 1,000, discretion is given to the court to direct delivery of possession o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possible, one leading to an anomalous result, then, it would be the cardinal principle not to construe the provision so as to lead to such an anomalous result. In that behalf, he has relied on the ratio in Veluswami v. Raja Nainar, AIR 1959 SC 422, wherein it is observed (head-note) : "It is no doubt true that if on its true construction, a statute leads to anomalous results, the courts have no option but to give effect to it and leave it to the Legislature to amend and alter the law. But when on a construction of a statute, two views are possible, one which results in an anomaly and the other not, it is the duty of a court to adopt the latter and not the former, seeking consolation in the thought that the law bristles with anomalies." I am maintaining that in reality two views are not possible at all; however, this has been referred to by way of abundant caution in order to dispel any doubt even about the existence of such two views and, in that event, if one view leads to the most logical conclusion and the other to the anomalous result, then, for obvious reasons, the latter cannot be accepted. It is true that it is indicated that if on a true construction, only such inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trict construction of penal statutes." It is, therefore, rightly submitted by Shri Modi, which is by way of a very effective reply to the submission of Shri Vakil about the construction of such provision which entails into penal consequence. Even in such cases, the said ratio indicates that if some violence is necessary, then, that has got to be done irrespective of the fact that a penal consequence is likely to flow therefrom, provided the interpretation contains logic. It is thus apparent that merely because a penal consequence is likely to flow out of the provision, a construction should be artificially and mechanically brought into existence even at the cost of distorting the phraseology and twisting the meaning merely to achieve a very theoretical principle which obviously lies in the vacuum, namely, that an accused should not be punished, such a proposition cannot be accepted. In my opinion, the stretching of such a provision with such a speculative object would require entering into an arena of conjectures and doing violence to the language deviating from the normal practice of interpretation of statutes. It is rightly submitted that if on a plain reading or even having re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a particular label in the context of the situation, and in the nature of things, it was not necessary to separate the character which was subsisting or the one which was held in the past. Such a label is always tagged for identification to point out the relationship and the obligations flowing therefrom not only during its subsistence but even after its termination. Reliance was rightly placed on the ratio in Nagin v. Haribhai, AIR 1980 Bom. 123. In the said case, the provisions of the Presidency Small Cause Courts Act, 1882, as substituted by the Presidency Small Cause Courts (Maharashtra Amendment) Act, 1975, and in particular section 41 thereof as so substituted was under scrutiny vis-a-vis its interpretation. A contention was raised therein that the said provision would apply to the licensor and licensee and would not cover the case of persons who once held the relationship of licensor and licensee but such relationship had come to an end. Provisions of various other statutes such as the Matrimonial Acts, the Transfer of Property Act, etc., and the terminology used therein were also considered while repelling this contention when, ultimately, it was held that it would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in consequences. Section 545 also deals with a situation during the course of the winding-up of a company. It is obvious that in view of that situation itself reference to the past director along with the present director or other officers becomes inevitable. That can hardly serve as an analogy to the instant case. Shri Vakil then placed reliance on the ratio of a decision of this court in State v. Girdharlal Bajaj [1962] 32 Comp. Cas. 1114; 63 Bom. LR 743, wherein it has been held in support of his contention that an employee docs not include an ex-employee. That was with reference to the provisions contained in section 419 of the Act which contemplates that an employee shall be entitled in certain circumstances to see the bank receipts for any money or security which has been referred to in sections 417 and 418, the former refers to the employees' securities deposited in the bank, while the latter refers to the provident fund of the employees. It is in that context that this court has held that section 419 is restricted to the present employee and would not cover the case of a past employee. However, in my opinion, that again can hardly furnish an analogy to jump to the concl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 630 also should be construed in that context and in the same vein so as to find out the purpose for which those were enacted. It is not necessary to have a further probe in this behalf, inasmuch as I have already held that the primary and the most essential purpose of enacting such a provision was to avoid such a mischief which can easily be committed by an erring officer taking shelter behind such technicality and the precise purpose further is not to entail the company into any loss of property. If that is the purpose, it appears to be obviously manifest that it is a justified submission that as section 419 was interpreted on the foundation that it is purpose-oriented, then section 630 also should be interpreted on the same basis and to achieve that purpose as a logical corollary, the interpretation suggested by Shri Modi is the only available one in the circumstances. This decision, therefore, which has been relied upon by Shri Vakil is in reality of no assistance to the petitioner. Reliance was also then placed rightly on a decision in Re Veerappan [1944] 14 Comp. Cas. 149 ; [1945] 46 Cr. LJ 347 (Mad.). Really speaking, as the matter appears to be very clear, containing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capacity of creating penal liability. and, it would as well embrace a case of an existing employee or officer of the company. (B)Clause ( b ) is equally independent and distinct from clause (a) as regards penal consequences. it would as well squarely cover the case of a past employee or officer of the company. entitlement to the property of the company has its existence contingent on the right and capacity of the officer by virtue of his employment. such a right can be transformed into actually getting possession of the property of the company which is again solely by reason of the employment. the duration of such right and claim over the property would be co-terminus with the term of employment. therefore, the capacity, the right to possession created thereunder and the duration during which such capacity exists and the right can be exercised, are the features integrally blended. consequently, with the termination of the employment, the capacity and the corresponding right are extinguished with the obligation to hand over the property, back to the company ipso facto coining into existence. if, therefore, in such an event, with the wiping out of the right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery surprising to note that for months together, it did not occur to the petitioner to move the trial court for the relief which he claimed for the first time by tendering an application on 23rd May, 1980, which was decided on 27th June, 1980. Shri Modi is quite justified in criticising this conduct of the petitioner though it was sought to be explained away by the learned counsel for the petitioner on a very specious ground that the delay was only on account of lethargy. In my opinion, this delay is thoroughly unexplained and this will be one of the grounds which will have to be considered whether, even otherwise, a relief can be granted in favour of such a petitioner. But the matter does not rest there, because for the first time in the month of May, 1980, the petitioner comes out almost with a very strange request that he is entitled to earn a discharge. The learned Magistrate has rightly brushed aside this contention on a short ground that this was a case of summons triable procedure. In the first instance, it required full 18 months to realise the deficiency in the complaint and, secondly, he came out with a request which obviously could not be granted in law. It is true that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts are so glaring that if such a course is adopted, then, not only the interest of justice would be destroyed, but, there would obviously be a wrong user of discretion under the inherent powers of this court in favour of a person who does not deserve such exercise of discretion in his favour. Apart from this, the question of law is obviously against him and the facts are practically staring in his face. In rule R.P. Kapoor v. State of Punjab, AIR 1960 SC 866, it has been enunciated that there may be some categories of cases where the inherent jurisdiction to quash the proceedings can be exercised when at the threshold itself there is a legal bar or when the complaint by itself on a plain reading does not make out an offence or even though the allegations do constitute an offence, yet, there is no legal evidence. In my opinion, this case is not covered by either of the three categories. It is true, as observed in State of Karnataka v. L. Muniswamy, AIR 1977 SC 1489, that (head-note): "In the exercise of the wholesome power under section 482 (of the Cr. PC) the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me context, it has been clearly observed that in such cases, when relief of quashing of the proceeding is asked for after issuance of process, then, inherent powers may be exercised sparingly with circumspection and in rare cases and that too, to correct patent illegalities. In my opinion, therefore, on the premise as regards the interpretation of section 630 of the Act, the issuance of process is manifestly justified and it cannot be said that there are no prima facie grounds for the learned Magistrate, to get himself satisfied, for proceeding with the case when he issued the process. Inherent powers under these circumstances for quashing of the proceeding cannot be obviously invoked. In these circumstances, the proceeding will have to be continued in the trial court. Shri Vakil then submitted that the correspondence ensued between the parties to which a reference is made in the complaint, itself indicates that even after June 30, 1978, that is, after the date of his retirement, the petitioner was allowed to continue to stay over in the premises and the time for vacating was extended which according to the learned counsel may create a new and separate agreement between the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, therefore, irrespective of the said controversy vis-a-vis the said provisions of the Act, the petitioner can be deemed to have wrongfully withheld possession of the property of the company which is squarely covered by the said provisions. Shri Vakil, the learned counsel submitted that really speaking, any such prosecution under the provisions of the said Act, when launched after the retirement of the employee or the officer would always be unsustainable, inasmuch as, the points of time of going out of the employment and making the demand and lodging the complaint are quite distinct. There is hardly any substance in this contention also. Shri Vakil, the learned counsel, even went to the extent of submitting that the demand should be made and the complaint should be lodged in such a manner and at such point of time so as to synchronise and become identical with the moment of retirement and he clarified by submitting that even one second elapsing thereafter would make the prosecution infructuous. To say the least, I am a little surprised that such an argument has been advanced with all seriousness and it is mentioned only for being rejected. It is too much to accept and expect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here are sufficient grounds for proceeding further or not and not to find out whether the accused would be ultimately convicted or acquitted. In Smt. Nagaiwwa v. Veeranna, AIR 1976 SC 1947, it has been reiterated that the scope of enquiry under section 202, Cr.PC, is extremely limited essentially for the purpose of finding out whether a prima facie case for issuance of process has been made out and that though the Magistrate is given discretion, there appears to be a very thin line of demarcation and the Magistrate is not expected to examine the entire case on merits with a view to find out whether or not the allegations in the complaint, if proved, will ultimately end into conviction, as these considerations are totally foreign to the scope and ambit for an enquiry under section 202 which culminates under section 204 of the Code. Thus, viewed on the touch-stone of all these judicial pronouncements, I am of the firm opinion that this is not a case at all wherein the complaint could have been dismissed, but, this is pre-eminently a fit case where the process has been rightly issued. The complainant will have to be given a reasonable opportunity to ventilate his grievances, to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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