JUDGMENT
Amar Saran, J.
1. Heard Sri K.P. Verma for the applicant, Sri S.S. Nigam for the opposite party No. 2 and learned AGA.
2. This application under Section 482 Cr.P.C. has been filed for quashing of Complaint Case No. 1957 2004, under Section 630 of Indian Companies Act (hereinafter, the Act), PS Modi Nagar, District Ghaziabad, pending in the court of Spl. CJM, Meerut.
3. The allegations in the complaint and the summoning order dated 29.2.2004 were that the complainant-company had provided an accommodation to Rafiq, husband of applicant No. 1 and father of applicant No. 2, who was an employee with the company. However, he died in the course of employment and under the terms of the employment he was to enjoy the facility of the accommodation only till the time he remained in the job and after his employment with the company, he was to vacate the same. Rafiq, the deceased, had even resigned from the company on 10.10.2000, which was made effective from 12.11.2000. However, he did not hand over the possession of the accommodation to the company and died on 23.1.2003. Thereafter, the applicants, his wife and son, did not vacate the accommodation. On 16.11.2004 they were served with a notice to vacate the same but still they did not vacate the premises. The complaint was, therefore, filed for prosecuting the applicants for not vacating the premises and realising rent at the rate of Rs. 3000/- per month.
4. After examining the complainant and the witness, Mahesh Chandra Tyagi, under Section 202 Cr.P.C. the impugned order dated 29.9.2004 was passed.
5. It was argued by the learned Counsel for the applicants that under Section 630 of the Companies Act, only an employee of the company is liable for prosecution and not his heirs. Section 630 of the Act may be extracted as under:
630. Penalty for wrongful withholding of property.–(1) 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 ten 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.
6. It is argued that under the said section, only an employee or an officer of a company can be prosecuted who has either wrongfully obtained the possession of the property of a company or having such property in his/her possession, even by legitimate means, is wrongfully withholding the same or is misapplying the same for purposes other than for which it was authorised.
7. It was argued by the learned Counsel for the applicants that under Section 630 of the Companies Act, only an employee of the company is liable for prosecution and not his heirs. Section 630 of the Act may be extracted as under:
At first blush, the contention of the learned Counsel for the applicants that as they were not employees or officer of the company, hence the provision does not apply to them, appears attractive. Learned Counsel for the complainant-company has, however, drawn my attention to the decision of the Apex Court in Abhilash Vinodkumar Jain (Smt.) v. Cox & Kings (India) Ltd. and Ors. , which has clearly laid down that a liberal and purposeful construction must be given to Section 630 of the Companies Act for furthering the object and purposes of the Act so that the legal heirs of the deceased officer or employee cannot withhold the accommodation of the company after his death and by a deeming fiction, it has been held that the expression ‘officer or employee’ would include the legal heirs. A similar view has been taken by the Apex Court in Shubh Shanti Services Ltd. v. Manjula S. Agarwalla and Ors. .
8. Apart from this, the facts of the present case discloses that the deceased employee Rafiq Ahmad had himself resigned from the company on 10.10.2000 which was made effective from 12.11.2000 and he had withheld the accommodation until 23.1.2003, hence even if this interpretation is not given to Section 630 of the Act, the applicants may be liable as abettors of an offence committed by the deceased Rafiq Ahmad. Although the question whether the notice to vacate the premises was required and was given under Section 630 of the Act to the deceased employee Rafiq Ahmad in his lifetime still requires to be considered by the trial court.
9. The next contention raised by the learned Counsel for the applicants is that the deceased employee had resigned from the company on 11.10.2000. He died on 23.1.2003 and that under Section 630 of the Act, the offence was of wrongfully withholding the company’s property for which the only punishment is a fine upto Rs. 10,000.
10. However, I find that in the present case, the registered notice is dated 16.7.2004. Although learned Counsel for the applicants ‘ submission is that notice was not served on them, however, in view of the presumption under Section 2 7 of the General Clauses Act a notice sent by registered post may be deemed to have been delivered in ordinary course within the time it is expected to be delivered. Applicants may lead arguments and furnish material, if any, about the non-service of the notice on them during the trial.
11. Furthermore, opposite party No. 2 has drawn my attention to the decision of the Supreme Court in Gokak Patel Volkart Ltd. v. Dundayya Gurushiddaiah Hairemath and Ors. , for the proposition that the offence of withholding any property of a company is a continuing offence, and under Section 472 Cr.P.C. a fresh period of limitation begins to run so long as the offence is continuing.
12. It is then argued by the learned Counsel for the applicants that the company owed Rafiq some money which it was withholding. However, for that separate proceedings would lie and that along would not authorise the applicants to retain possession of the property in question to pressurize the company to pay the dues of Rafiq, if any. Learned Counsel for the applicants then referred to the case of Damodar Das Jain v. Krishna Charan Chakraborti and Anr. 1991 SCC (Cri) 420, where an employee was not vacating an accommodation after termination of his employment. Therefore, a complaint was filed in a Magistrate’s Court by the company under Section 630 of the Act. In that case, the Apex Court held that the Magistrate had no jurisdiction to pass orders of eviction. However, the distinguishing feature of that case was that a dispute had arisen as to whether the company was a tenant of the accommodation in question under the Rent Act and whether even after the expiry of the written agreement of licence with the licensor the company remained the licencee under Section 9 of the Code of Civil Procedure and the Bombay Rents Hotels and Lodging House Rates (Control) Act, 1947. It was observed by the Apex Court that that was a disputed question of fact which could only be determined by the civil court. Hence in that case it could not be clearly stated that the employee was retaining a company property after the termination of his employment. But there is no dispute in the present case that the property in question did not belong to the company.
13. In this view of the matter, the proceedings under Section 630 of the Act for eviction and conviction of the employee would not lie. Thus, there is no force in this application which is rejected. Interim order, if any, granted earlier in this case is vacated.
14. However, in the facts and circumstances of the case, and the fact that applicant No. 1 is a lady and applicant No. 2 is her son and the original employee, husband of applicant No. 1 and father of applicant No. 2, has died, it is provided that if the applicants surrender before the court concerned within 3 weeks from today in the aforesaid case and apply for bail, the same shall be dispose of expeditiously, if possible, on the same day provided the applicants communicate their intention to surrender before the court concerned seven days in advance so that the prosecution may have all the documents available and not seek adjournment on that account as held by the Apex Court in the case of Naresh Kumar v. Ravindra Kumar .
15. The observations made hereinabove have been made only for the disposal of this application and will not bind the trial court and prejudice the applicants to take any defences that they chose during trial.