TMI Blog1995 (11) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... ' He was given a flat for his residence by virtue of his appointment as an officer of the company. It appears the petitioner resigned his job by giving three months' notice dated 20-10-1987, but the company accepted the resignation with imme-diate effect. Then the company wrote a letter dated 9-12-1987 calling upon the petitioner to hand over the possession of the flat and also car bearing No. MAR 694. The petitioner sent a reply alleging that he is a tenant of the flat and is entitled to protection under the Bombay Rent Act. Since the petitioner did not vacate and hand over possession of the flat, the company filed a private complaint in the Court below alleging that he has committed an offence punishable under section 630 of the Compa- nies Act, 1956 ('the Act'). It is further alleged that since the accused was entrusted with the possession of the flat and he refused to vacate it and using it for his own purpose, he has also committed an offence of criminal breach of trust which is punishable under section 408 of the Indian Penal Code. The prosecution examined one witness, viz. P.W. 1 S.K. Dighe. After hearing both the sides, the learned Magistrate passed the impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial court is not sustainable? ( 2 )Whether Mr. Dighe has committed any offence in signing the vakalatnama and is liable for action? Point No. 1 5. The complaint was filed by the original complainant Forbes Forbes Campbell Co. Ltd. It is an admitted fact that this original complainant company came to be amalgamated with another company called 'Gokak Patel Vokart Ltd.' and then on amalgamation a new company came into existence in the name of 'Forbes Gokak Ltd.' The new company came into existence, after the amalgamation was approved by the High Court in Writ Petition No. 77 of 1992, with effect from 27-10-1992. It was, therefore, argued on behalf of the accused that the original company is no longer in existence and hence the prosecution cannot continue by the original complainant. In my view, the argument is well-founded. The original company has ceased to be in existence and a new company with a new name, viz, 'Forbes Gokak Ltd.' has come into existence, and therefore, the new company alone can continue the prosecution. This is also not disputed by the learned counsel for the complainant. In fact, the amalgamation scheme clearly provides for it. The scheme of amal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he complainant, the prosecution can be entrusted to some other person vide Subhamma v. Kannapachari AIR 1969 Mys. 221, A.R. Balsubramaniam v. Palani 1969 Crl. LJ. 1297 (Mad.) and M. Govindaiah Naidu v. Y. Kamalamma 1984 Crl. LJ. 1326 (AP). The learned counsel for the petitioner invited my attention to a case reported in Hajee P.M. Meeranan v. P. Venugopal, Special Officer 1993 Crl. LJ. 364 where a complaint had been filed by the Municipality and had ceased to exist and a Panchayat had been formed. It was held that since the original complainant is no longer in existence, the complaint cannot be continued. In my view, this decision is distinguishable on facts. The first reason is that it was a summons case where there is a provision for dismissal of a complaint on the death of or absence of the complainant on any particular day vide section 256 of the Code of Criminal Procedure. But we are concerned with a warrant case pertaining to a cognizable offence. The other distinguishing feature is that there is no provision in law that a Panchayat after abolition of a Municipality can continue the proceeding. But herein in our present case clause 6 of the amalgamation sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not a case of a transferee company being substituted for the original complainant company. The name of the original complainant should continue on record. But it can be mentioned 'original complainant company now represented by the transferee company' for conducting the prosecution. On such application being filed by the transferee company, the learned Magistrate shall permit the transferee company to continue the prosecu- tion according to law. 8. Another serious argument urged on behalf of the petitioner is that since the company has already sold the disputed flat to a third person, it cannot maintain the complaint and it cannot continue the prosecution. It was argued that the Court can take note of subsequent events. There is no dispute that the Court has a right to take note of subsequent events. The fact that the original complainant company has sold the property to a third person, by a registered sale deed dated 26-9-1991 is not in dispute. In fact, the sale deed has been produced by the complainant company in the Court below. The argument of the learned counsel for the petitioner that on the date of framing charge the complainant should be the owner of the flat cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reads as follows: " Penalty for wrongfulwithholding of property. If any officer or employee of a company ( a )wrongfully obtains possession of any property of a company; or ( b )having any such property in his possession, wrongfully withholds it or knowingly applies it to purposes 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 obtained or wrongfully withheld or knowingly misapplied, or in default, to suffer imprisonment for a term which may extend to two years." From a perusal of the section we find that it is in two parts. The first part in sub-section (1) provides for conviction. The second part provides for the consequential order of delivering the property. As far as the first part is concerned, if the allegations in the complaint are proved, then the accused can be safely convicted and sentenced to pay fine. This is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer holding the position of Assistant Secretary in the complainant company. Now in the new company after amalgamation he is the General Manager. The learned counsel for the petitioner invited my attention to a case in Atul Mathur v. Atul Kalra [1989] 4 SCC 514 in support of his contention that in case of any bona fide disputes between the company and the accused in a case of this type, the matter should be left to the civil court for decision. But the Supreme Court has pointed out that a mere assertion of a different version by the accused is not sufficient to make it a bona fide dispute. In fact in that case on facts it was held that dispute raised by the accused was not a bona fide dispute. It is always a question of fact which has to be decided on the facts and circumstances of each case. Any how it is open to the accused to urge this contention at the time of final arguments before the learned Magistrate after the trial is completed. However, in the said decision relied on by the learned counsel for the petitioner, the Apex Court has also held that Sales Manager of the company is competent to file a complaint on behalf of the company as per instructions from the he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioning the name of the com-plainant. There is no merit in this submission. Who is the complainant can be easily seen by referring to the complaint. The accused had been supplied with a copy of the complaint and he knows who is the complain-ant, viz. the old company. Hence no prejudice will be caused to the accused if the name of the company is not mentioned in the charge and it refers only to the complainant. 13. The learned counsel for the complainant contended that the accused has been dragging on the proceeding on one pretext or the other by filing application or applications in the Court below. It was, therefore, submit- ted that the Court should not encourage the accused to adopt obstruc- tionist tactics. In my view, direction can be given to the trial Court to expedite the trial of the case. Nothing more can be done at this stage. After hearing both the sides, I find that there is no merit in the petition so far as the challenge to framing of charges is concerned. Hence the petition has to fail. Point No. 1 is answered accordingly. Point No. 2 14. The only grievance made out in the application and also at the time of arguments is that Mr. Dighe has signe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
