JUDGMENT
D.B. Dutta. J.
1. M/s. Goodricks Group Limited is a company Incorporated under the Companies Act. It lodged a complaint being Case No. C784/95 under section 630 of the Companies Act in the court of Chief Judicial Magistrate at Alipore against one Arun Kumar Durgaprasad on the allegations, which, in substance, were as follows. Arun Kumar Durgaprasad was an employee of the Company. He took voluntary retirement from his service on the expiry of September, 1994. At the time of his retirement, he was the Vice President of the Company. During the tenure of his service under the company, he was given accomodatlon for his residence at Company’s flat No. 5C with terrace garage at No. 1, Merlin Park, Calcutta, of which the company is the owner. He ceased to be an employee of the company by reason of his voluntary retirement on and from 1st day of October. 1994 and by that date he should have vacated the flat in favour or the company but on his request, the company allowed him to use the said flat till 31.12.94. Before the retirement, the company addressed a letter dated 12.9.94 to him giving a detailed break-up of his dues from the company and asking him to confirm that he would be handing over the possession of the flat to the company by the end of December, 1994 and he accepted and signed the letter as a token of confirmation. After the expiry of the month of December, 1994, he did not vacate the flat. He was requested on several occasions by the company to vacate the flat, but he wrongfully failed and neglected to vacate the same. The company sent a lawyer’s notice by a letter dated 3.4.95 demanding delivery of the flat. Insplte of receipt of that letter, the flat is being wrongfully withheld. Arun Kumar Durgaprasad has accordingly committed and offence punishable under section 630 of the Companies Act.
2. The learned Magistrate took cognizance on this complaint and the accused Arun Kr. Durgaprasad on being summoned under section 630 of the Companies Act. appeared before the court.
3. During the pendency of the complaint case, Arun Kr. Durgaprasad died on 7.1.96 and the company made a payer on 15.5.96 for substitution of his wife Jolly Durgaprasad and son Rana Durgaprasad as his heirs and legal representatives in his placed and the said prayer was allowed by the learned Magistrate by his order dated 15.5.96.
4. Thereafter, on 23.8.96 the two substituted accused filed two separate applications praying for dropping of the proceeding against them on the grounds that substitution is alien to the provisions of criminal law and that Rana Durgaprasad was then a minor within the meaning of Juvenile Justice Act. The company filed written objections against the said applications. The learned Magistrate heard and disposed of the applications by his order dated 21.12.96. Relying on the decision of the Supreme Court in the case of Avilash Vinod Kumar Jain v. Cox & Kings (India) Ltd. reported in 1995 C Cr LR 234 corresponding to (1995) 3 Supreme Court Cases 732, the
learned Magistrate was of the view that the prosecution did not abate with the death of Arun Kr. Durgaprasad and that it was quite maintainable against his heirs and legal representatives who have no independent capacity or status to continue in occupation of the concerned flat after the death of the original accused. Regarding the plea of minority of Rana Durgaprasad, the learned Magistrate was of the view that his case might be split up and tried by the appropriate juvenile court but since there is no constituted Juvenile court in the area, lie was competent to act as Juvenile court in relation to Rana Durgaprasad. Moverover, the learned Magistrate was of the view that an offence under section 630 of the Companies Act is not an offence, in the strict sense of the term, so that the wrongful withholding of the flat by Rana Durgaprasad, a minor, would not make him a delinquent Juvenile. In such view of the matter, the learned Magistrate refused to drop the proceeding and rejected their prayer.
5. Being aggrieved by the two orders of the learned Malstrate–one dated 15.5.96 by which the Magistrate substituted the wife and son of the deceased as accused persons and issued process against them and the other dated 21.12.96, whereby the learned Magistrate rejected their prayer for dropping the proceeding, the substituted accused persons then filed the Instant revlslonal application under section 482 of the Criminal Procedure Code for quashing of the said proceeding pending before the court of Chief Judicial Magistrate, Alipore. The petitioners challenged the legality of the said two orders on the grounds that substitution of the accused is a concept alien to the provisions of Criminal law and Jurisprudence and that the petitioner No.2, being a minor, could not be tried by an ordinary court under the provisions of Juvenile Justice Act, 1986 and that the learned Magistrate acted illegally in allowing the complainant’s prayer for substitution and in refusing to accept the petitioners’ prayer for dropping the proceedings.
6. The petitioners subsequently filed a supplementary affidavit on 11.7.97 pleading additional facts and grounds in support of the Initial prayer for quashing of the proceeding and made an alternative prayer for stay of the impugned proceeding. The additional facts and circumstances pleaded in the supplementary affidavit may, in substance, be stated as follows.
7. Arun Kr. Durgaprasad was a professional tea planter and an acclaimed authority in quality control methods in the production of best quality tea. He was promoted to the post of senior executive in 1979 and was made director in the year 1984. He was finally promoted as Vice President in the year 1988. At that time, it was decided by the Board of Directors of the Company that Arun Kumar would be given a flat of his choice which he would purchase ultimately and till then would be allotted that flat for his residence with the members of his family, free of rent Prior to February, 1989, he was residing in a flat taken on lease by the company at 105, Park Street, Calcutta and sometime in February, 1989 he moved with his family to the Merlin Park that he was assured that at the time of his retirement, he would be purchasing the said flat from the company at the cost at which it was purchased by the company. This arrangement was known to the company as well as its Managing Director, Mr. S.K. Bhasin and other members of the Board of Directors and it subsequently formed
part of the contract of his employment. He made extensive decoration in the flat and also made a roof top garden by spending substantial amount of money as he was assured by the Company that he would have the option to purchase the flat. From early 1994, he was having dispute and differences with Mr. S.K. Bhasln, the Managing Director of the Company over policy matters, as a result of which, Mr. Bhasln nursed a grudge against him and created a situation making difficult for him to discharge his duties. Under such circumstances, he decided to take premature retirement from service subject to the conditions that all his accrued benefits would be paid to him and that following the custom and precedent of the company, he would be given the flat. Sometime in June, 1994, he was asked to retire and because of various commitments made by the company and its Board of Directors, he agreed to retire subject to certain terms and conditions. One such term was to the effect that the company would sell the flat to him at a price of Rs. 9,66,000/-. The company accepted on 10th June, 1994 the said term as one of the terms of his premature retirement. Having been assured by the company that the flat would be transferred to him at a sum of Rs. 9,66,200/- as on the date of his premature retirement, he sold his flat at Delhi in the month of October, 1994 for a sum of Rs. 7,50,000/- within the knowledge of the company. He confirmed his decision for premature retirement in June, 1994 and retired finally w.e.f. 1st of October, 1994. In part performance of the aforesaid agreement, he continued to remain in occupation of the flat. The company made over xerox copy of the title deed in respect of the flat to him to enable him to prepare the draft of the deed of sale. He was asked by the company to complete the formalities in connexion with the execution of the deed of conveyance in respect of the flat. In the usual course, Arun Kumar would have retired in the year 2003 AD and he would not have accepted the premature retirement, had he had not been assured by the company that the flat would be sold to him at a price of Rs. 9,66,200/-. Unfortunately, the company tried to resile from Its commitments. It showed reluctance to execute any deed of sale in favour of Arun Kumar Durgaprasad and finally, in breach of commitments and the terms of agreement referred to above, the company threatened to invade his right to remain in the flat and to pruchase the same. in such circumstances, he was constrained to file a civil suit being title suit No.34 of 1995 before the Second Court of Assistant District Judge at Alipore against the company praying for a decree for specific performance of the agreement for sale of the flat concerned and also for a permanent Injunction restraining the company from taking possession of the flat or. In any way, disturbing or interfering with his peaceful possession thereof. He also filed and application under Order 39 Rule 1 and 2 read with section 151 of the Civil Procedure Code praying for a temporary Injunction restraining the company from taking possession of the flat, or, in any way, disturbing or interfering with his peaceful possession till the disposal of the suit and the Civil Court by order dated 25.5.95 was pleased to direct maintenance of status quo in respect of the flat and also to restrain the company from taking possession of the flat or, in any way, disturbing the possession till the disposal of the petition for temporary Injunction. The company entered appearance in the suit and filed an application for vacating the order of Injunction. But the injunction is still in force. After the death of Arun
Kumar, the petitioners 1 and 2 had been substituted in hts place in the suit by order dated 23.4.97. The petitioners are occupying the flat in part performance of the agreement for sale. The order of injunction passed by the Civil Court is binding upon the criminal court and the issues raised in the Impugned criminal proceeding as well as the civil suit are same and between the same parties. The issues raised in the Impugned proceeding relate to right to possession in respect of the flat and effective adjudication of such an Issue can only be done by the civil court of competent jurisdiction. In the circumstances, the Impugned proceeding is an abuse of process of the court and is liable to be quashed. In the alternative, the Impugned proceeding is required to be stayed till the disposal of the suit.
8. At the outset, it should be pointed out that at time of hearing of this Criminal Revision, the relief that was Initially claimed on behalf of the petitioners in the shape of quashing of the Impugned criminal proceeding was given a complete go by and the challenge that was thrown against the legality of the two particular magisterial orders dt, 15.5.96 and 21.12.96 allowing substitution of the petitioners in place of the original accused and also rejecting the petitioners’ prayer for dropping of the Impugned proceeding was totally given up. What was pressed on behalf of the petitioners at the time of hearing was a mere stay of the criminal proceeding and that too, only till the disposal of the petition for temporary Injunction filed in the Civil suit and not quashing of the criminal proceeding.
9. Mr. Balai Roy with Mr. Jaymalya Bagchl appearing for the petitioners, made the following points in support of the prayer for stay of the criminal proceeding as suggested above.
10. The right of Arun Kumar Durgaprasad, the predecessor in Interest of the petitioners of the Instant criminal revision case, to continue to occupy the concerned flat could not stand extinguished with the termination of his employment by reason of his voluntary retirement w.e.f. 1st October, 1994 so as to give rise to an obligation to hand over the flat back to the company. His right to continue to be in possession of the flat w.e.f. 1.10.94 was an independent right, backed by the agreement dated 10th of June, 1994, in terms of which the company agreed to sell the flat to him at a price of Rs. 9,66,000/-. Continuance of possession of the flat by A.K. Durgaprasad w.e.f. 1.10.94 was in part performance of that agreement and as such, was required to be protected till the agreement is specifically performed by the company. The company was bound under that agreement to sell the flat at the stipulated price to Arun Kumar Durgaprasad and on its refusal to honour that agreement, Arun Kumar Durgaprasad had already filed a suit for specific performance of that agreement and also obtained an order of interim injunction directing the maintenance of status quo with regard to the possession of the flat and restraining the company from taking possession of the flat or disturbing the possession of Arun Kumar Durgaprasad in the flat till the disposal of the petition for temporary injunction that was filed on the date of filing of the suit. Arun Kumar Durgaprasad filed the suit and obtained the Injunction from the civil court even before the prosecution was launched by the company under section 630 of the Companies Act. A decision of civil court is binding on criminal court and converse is not true. The revisionists are claiming through Arun
Kumar Durgaprasad by reason of their being his heirs and legal representatives, and as such, the right, title and interest of Arun Kumar Durgaprasad vis-a-vis this flat devolved upon the petitioners. The petitioners having been substituted in place of Arun Kumar Durgaprasad in the civil suit following his death, are entitled to maintain their possession by virtue of the order of Interim injunction till the disposal of the application for temporary Injunction and are also entitled to get specific performance of the agreement by the company. The findings of a Civil Court get precedence over the findings recorded by a criminal court particularly in a summary trial for an offence under section 630 of the Companies Act. The civil court was already in seisin of a bona fide dispute even before the launching of the Impugned criminal prosecution. The dispute Involved in the criminal prosecution is within the jurisdiction of the civil court and falls outside the ambit of the Inquiry under section 630 of the Companies Act. If both the criminal proceeding and the civil suit are allowed to run parallel, there would be likelihood of conflicting decisions by the civil court and the criminal court. If the criminal proceeding is allowed to continue to its logical end before the civil court decides the dispute, there will be embarrassment for the civil court to take a decision. That apart, even if the possession of Arun Kumar Durgaprasad in respect of the flat concerned was wrongful on the expiry of December, 1994, as alleged on behalf of the company, the civil court by virtue of its order of interim Injunction must be deemed to have Justified the continuance of such wrongful possession and the prosecution against Arun Kumar Durgaprasad or for that matter, against the present petitioners would be incompetent in the fact of such an Injunction. In other words, the prosecution would not be maintainable so long the injunction would remain in force. Thus, in view of the facts and circumstances enumerated above, it is urged on behalf of the petitioners that the criminal proceeding should be stayed till at least the disposal of the petitioners’ prayer for temporary in Junction in the civil suit.
11. Mr, Pradlp Ghosh appearing for the company sought to refute the aforesaid contentions. It is contended that the title of the company in respect of the flat has not been questioned by the petitioners. There was no agreement by the Company to sell the flat to Arun Kumar Durgaprasad at a price of Rs. 9,66,000/- as alleged and the story of such an agreement has been falsely set up by the petitioners or their predecessor-ln-interest in order to forestall the prosecution under section 630 of the Companies Act. Mere pendency of the suit or an ex parte ad Interim Injunction cannot Justify a conclusion that the civil court is in seisin of a bona fide dispute which falls within the Jurisdiction of the civil court and outside the scope and purview of a summary proceeding as envisaged in section 630 of the Act. Even if it be assumed that there was an agreement between the petitioners’ predecessor and the company as alleged by the petititoners, such agreement could not give rise to any right in favour of the erstwhile employee or his legal heirs and representatives to continue to hold the flat after the expiry of December, 1994 upto which the petitioner’s predecessor was gratuitously allowed by the company to continue in possession. The petitioners can, at best, be said to have a right to get title in future in respect of the flat and until and unless the suit for specific performance is decreed and the deed of sale is executed by or on behalf of the company tn execution of
that decree, the petitioners cannot have any legal right, title or Interest in the flat or any right to continue to possess the flat. As such, the possession of the petitioners’ predecessor-in-interest or of the petitioners themselves which was wrongful on the termination of employment of the petitioners’ predecessor under the company could not cease to be wrongful only by virtue of an ex parte ad interim injunction that has been granted by the civil court on 25.5.95, the date of filing of the suit. In a suit for specific performance of contract, the question of any permanent or temporary injunction, as sought for in the concerned civil suit, could not properly arise particularly when no right could accrue in favour of the petitioners or their predecessor to protect their possession till the suit is decreed and the conveyance is executed in execution of the decree. On behalf of the company, a list of dates was placed on record during the hearing, with copy to the petitioners, to show how the hearing and disposal of the plaintiff’s application dated 25.5.95 for temporary Injunction as well as the application that was filed by the defendent company as far back as on 4.7.95 for vacating the ex parte ad Interim injunction that was granted by the civil court on 25.5.95 is being delayed for more than two years. The order of Injunction was virtually passed, not in vindication of any legal right that had already accrued in favour of the petitioners or their predecessor or to arrest any threatened invasion of such right or any Injury which was likely to be suffered by them. It is urged on behalf of the company that it cannot be a fit and proper case for any stay of the criminal proceeding as prayed for on behalf of the petitioners.
12. A number of decisions were relied upon on behalf of the petitioners and the company in support of their respective contentions.
Section 630 of the Companies Act reads as under: “Penalty for wrongful withholding of property-
(1) if any officer or employee or 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 properly wrongfully obtained or wrongfully withheld or knowingly misapplied, or in default, to suffer imprisonment for a term which may extend to two years.”
13. On a plain reading of section 630 of the Companies Act, it becomes clear that its two sub sections deal with two different offences. Sub section (1) again is in two parts dealing with two separate contingencies as set out in clauses (a) and (b). The contingency under clause (a) would arise whenever the officer or employee of the company wrongfully obtains possession of any properly of the company, while the contingency under clause (b) could arise in two ways–first, when the officer or employee of
a company having any such property in his possession wrongfully withholds it and secondly when such officer or employee knowingly applies it for the purposes other than those expressed or directed in the articles and authorised by this Act. The offence under sub section (1) is a minor offence punishable only with fine which may extend to one thousand rupees whereas the offence under sub section (2) is a greater offence punishable with imprisonment for a term which may extend to two years. The latter offence is committed only when the court trying the former offence under sub section (1) orders the officer or employee of the company to deliver up within a time fixed by the court any such property wrongfully obtained or withheld or knowingly misapplied and the officer or the employee of the company makes a default in complying with that order of the court.
14. In the present case, there is no question of the officer of the company having wrongfully obtained possession of the flat concerned. As such, clause (a) of sub section (1) is not attracted here. The criminal prosecution that has been launched by the company herein for wrongful withholding of the flat within the meaning of clause (b) of sub section (1) of section 630. In other words, the complaint is covered by the first part of clause (b) of sub section (1) of section 630. Of course, under sub section (2), the court trying the offence under sub section (1) may also order the officer or employee of the company to deliver up the flat within a time to be fixed by the court and only if such an order is passed and the same is violated, the offence under sub section (2) would be committed.
15. Undisputedly, Arun Kr. Durgaprasad, the predecessor-in-interest of the revisionists, was an employee of the company and was provided with the flat at 1, Merlin Park, Calcutta, as an incident of his employment, sometime in the year 1989. There was also no dispute that there was cessation of his employment by reason of his having taken voluntary retirement from the service w.e.f. 1st of October, 1994. Normally, with the cessation of the employment, the right of Arun Kr. Durgaprasad to occupy the flat would stand extinguished w.e.f. 1.10.94.
16. The company’s case is that it had gratuitously gave Arun Kr. Durgaprasad permission to continue to be in possession of the fait beyond 30.9.94 till the expiry of December, 1994, and that by reason of such permission the right to Arun Kr. Durgaprasad to continue in possession of the flat stood extended till the expiry of December. 1994 even after the cessation of his employment, so much so that the continuance of his possession of the flat became wrongful only w.e.f. 1st January. 1995. The petitioners are the legal heirs and representatives of Arun Kumar Durgaprasad and whatever right, title and Interest they are claiming in respect of the flat concerned is derived from Arun Kumar Durgaprasad by virtue of their Inheritance. If the retention of the flat by Arun Kumar Durgaprasad became wrongful w.e.f. 1st of January, 1995, as alleged on behalf of the company, it continued to be wrongful till his death on 7.1.96 and the subsequent retention of the flat by his successors, that is the present petitioners w.e.f. 7.1.96 would also continue to be wrongful so as to attract the provisions of section 630(1)(b) of the Companies Act. According to the petition of complaint copy of which is an annexure of the revisional application, the company’s case is that on 12th September, 1994, it addressed a letter to
Arun Kr. Durgaprasad giving a detailed break-up of his dues in settlement of the terms of hfs voluntary retirement and requesting him to acknowledge receipt of that letter and to confirm that he would be handing over to the company the falt by 31st December, 1994 and that Arun Kumar Durgaprasad signed the company’s copy of that letter as a token of such acknowledgement and confirmation. A copy of the said letter was annexed with the complaint lodged by the company and formed part of annexures of the revlsional application. It bears a signature of Arun Kr. Durgaprasad without, however, containing any confirmation by him in so many words that he would be handing over the possession of the flat to the company by the end of December, 1994.
17. From another annexure of the complaint which also forms part of the annexures of the revlsional application, it transpires that the company addressed a letter through its advocate to Arun Kr. Durgaprasad on 3rd April, 1995, making a specific complaint to the effect that he was wrongfully withholding possession of the flat beyond 31.12.94 and had thereby committed a offence and also holding out a specific threat of criminal prosecution under section 630 of the Act. It also appears from another annexure of the petition of complaint annexed with the revisional application that the company by a letter dated 25.5.95 specifically authorised one Sudeb Chakroborty to engage advocate and sign pleadings, complaints etc. on behalf of the company in connexion with the proposed complaint to be lodged by the company against Arun Kr. Durgaprasad before the learned Chief Judicial Magistrate, Allpore.
18. The petitioners, on the other hand, contend that the retention of the flat by Arun Kumar Durgaprasad was never wrongful at any point of time after his voluntary retirement from service w.e.f. 1.10.94. They have raised a controversy with regard to the permission that is alleged to have been accorded gratutiously by the company to Arun Kumar Durgaprasad to continue to reside within the flat during the period from 1.10.94 to 31st December, 1994.
19. The petitioners bank upon an agreement alleged to have been entered into by and between Arun Kumar Durgaprased and the company on 10th June, 1994. According to them, by the said agreement, the company agreed to sell the flat to Arun Kr. Durgaprasad at the price of Rs. 9,66,000/- at which the company had purchased that flat. Making the alleged agreement his sheet anchor, Arun Kumar Durgaprasad filed the civil suit against the company on 25.5.95 when the company was already taking steps in launching the prosecution of Arun Kr. Durgaprasad under section 630 of the Companies Act. The fact remains that the company’s complaint was finally filed on 31.5.95. The Company has denied the alleged agreement, and the agreement forms the subject matter of another factual controversy between the parties.
20. The continuance of possession by Arun Kumar Durgaprasad beyond 30.9.94 is said to have been in part performance of the alleged agreement. Now, possession of immoveable property in part performance of a contract is liable to be protected against the person who made the contract or anybody claiming through that person but not against a transferee for value without notice. This is what is known as the Doctrine of Part Performance
as laid down in section 53A of the Transfer of Properly Act. This Doctrine of part performance can be Invoked only if the contract is in writing and signed by or on behalf of the person who contracts to transfer and must be such that the terms necessary to constitute the transfer can be ascertained from that contract with reasonable certainty. Thus the existence of at least a written agreement is the bare minimum for pressing Into service the aforesaid Doctrine of Part Performance. It is never applicable to a case where possession has been obtained or is being continued in part performance of a contract which is not reduced Into writing. Admittedly, the alleged agreement in the Instant case was oral and not a written one. As such, there is absolutely no scope for Arun Kumar Durgaprasad or for that matter, his successor-in-interest namely the present petitioners to avail themselves of the Doctrine of Part Performance in order to have his or their continuance of the retention of the flat protected.
21. Section 54 of the Transfer of Property Act expressly provides that an agreement for sale of an immoveable property does not of itself create any interest in or charge in such property. It can, at best, create, under section 40 of the Transfer of Property Act, a personal right or obligation of a fiduciary character, which could be enforced by Arun Kr. Durgaprasad, and after his death on 7.1.96, by his legal heirs and representatives, by a suit for specific performance, not only against the person who agreed to sell that property and the persons claiming through him but also against a gratuitous transferee and a transferee for consideration with notice and it is settled law that this fiduciary obligation cannot be held to be a defence for a suit for enjectment.
22. It is needless to comment that the alleged agreement by the itself would not render the continuance of possession of the flat by Arun Kr. Durgaprasad beyond 30.9.94 rightful, if such continuance was otherwise wrongful. As such, the prosecution of Arun Kr. Durgaprasad under section 630(1) of the Companies Act at the Instance of the company, on the expiry of the period of alleged licence reckoned from the date the cessation of his employment, would not be rendered Incompetent by reason of the subsistance of the alleged agreement dated 10.6.94. According to the Supreme Court decision in the case of Avilash Vinod Kr. Jain v. Cox and Kings India Ltd. reported in (1995) 3 Supreme Court Cases 732, the expressions “officer or employee” appearing in section 630 of the Companies Act include his heirs after his death by deeming fiction. The petitioners are not claiming any Independent right over the flat and are claiming the right ihrough their predecessor-in-interest Arun Kr. Durgaprasad. As such, if continuance of possession of the flat by Arun Kr. Durgaprasad was wrongful beyond 31.12.94, as alleged on behalf of the company, it would continue to be wrongful at the instance of his heirs and legal representatives as well, even after his death on 7.1.96. So, the alleged agreement dated 10.6.94 between the company and Arun Kr. Durgaprasad would not make the continuance of possession by the present petitioners rightful.
23. The present petitioners would be able to acquire title to the flat by virtue of the alleged agreement only if the suit for specific performance of agreement is decreed by the civil court and the requisite conveyance is executed in their favour in execution of that decree and not earlier. Thus,
the right arising out of the alleged agreement would not constitute a good defence on behalf of the petitioners in the prosecution under section 630(1) of the Companies Act.
24. Mr. Jaymalya Bagchi, while giving replies on behalf of the petitioners, strenuously argued that the order of Interim Injunction that was passed by the civil court rendered the possession of that flat by the Arun Kr. Durgaprasad as also by the petitioners rightful at least w.e.f. 25.5.95. the date on which the said order was passed and as such, the possession of the flat by Arun Kr. Durgaprasad or for that matter, by the present petitioners ceased to be wrongful w.e.f. 25.5.95, by reason of the operation of the said order of injunction with the result that the present prosecution would be Incompetent as long as the said Injunction would remain in force.
25. By the order of Injunction, the civil court appears to have directed the company to maintain status quo in respect of the flat. It also purports to restrain the company, Its men and agents from taking possession of the flat or. In any way, disturbing the position that was obtaining on 25.5.95 as also the user in respect of the flat till the disposal of the petition for temporary Injunction. Now, the civil court Interferes by temporary Injunction only on the assumption that the party seeking Its interference has the legal right which he asserts but needs the aid of the court for protection of the property until the legal right is ascertained. The general rule is that if the case does not admit of the relief of permanent injunction at the hearing on merits, the relief of temporary Injunction should be refused. It is also the settled principle of law that no interim relief can be granted during the pendency of a suit which would be of greater scope than what could be granted eventually in the suit itsef.
26. Incidentally, a reference to clauses (b) and (d) of section 41 of the Specific Relief Act may be made in this connection. An injunction cannot be granted–(i) under clause (b) to restrain any person from Instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought and (ii) under clause (d). to restrain any person from Instituting or prosecuting any proceeding in a criminal matter.
27. Reliance has been placed on behalf of the company in the case of Cotton Corporation of India Ltd. v. United Industrial Bank Ltd. wherein it has been held that an interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in a suit or proceeding. If this be the purpose to achieve which, power to grant temporary relief is conferred. It is inconceivable that where the final relief cannot be granted in the terms sought for because the statute bars granting such a relief ipso facto, the temporary relief of the same nature cannot be granted.
28. Under sub section (2) of section 630 of the Companies Act, the Magistrate trying the offence may direct delivery of any property of the company which is wrongfully withheld and the Injunction granted by the civil court cannot, in the circumstances, operate as a bar to the criminal court directing delivery of the flat under sections 630(2) of the Act, if it is found to have been wrongfully withheld.
29. In the Civil Suit, the petitioners’ predecessor-In-Interest sought for a relief in the shape of permanent Injunction restraining the company from taking forcible possession, or, in any way, disturbing and/or Interfering with the peaceful possession, of the flat in any manner whatsoever. The possession of the flat by Arun Kr. Durgaprasad or by the petitioners, as I have already observed, was not backed by any legal right, title or Interest. The petitioners had, at best, a right to endorse specific performance of the agreement dated 10.6.94. Under the law, Arun Kr. Durgaprasad or the petitioners could have no right to maintain their possession in view of the fact that neither the doctrine of part performance nor section 40 of the Transfer of Property Act would come to their rescue in protecting their possession beyond 31.12.94. Accordingly, it is really not understood how, in the facts and circumstances of this case, the permanent Injunction for maintaining such possession in respect of the flat could be sought for in the suit Itself. The right to possess the flat lawfully would arise only after the petitioners would acquire their title to the flat by virtue of a conveyance to be executed in execution of a decree that might be passed in the suit. It Is, therefore, not clear as to how on the basis of the mere oral agreement for sale of the flat, the petitioners could pray for a permanent Injunction or for that matter, a temporary Injunction for continuance of the possession till the disposal of the suit. Normally, the relief by way of permanent or temporary Injunction with regard to the possession as prayed for in the suit would appear to be outside the scope of the suit for specific performance.
30. Then again, the order of Injunction was an ad Interim order of injunction under Order 39 of the Civil Procedure Code, granted by the civil court, ex parte, without giving notice to the defendant company and Rule 3A of Order 39 provides that where an injunction has been granted without giving notice to the opposite party, the court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted and where it is unable so to do, it shall record its reasons for such Inability. But the fact remains that the defendant company filed an application under Order 39 Rule 4 of the Civil Procedure Code for vacating the ad interim order of Injunction on 4.7.95 and until now the said application of the defendant company and/or the plaintiff petitioners’ application for temporary injunction is yet to be disposed of by the Civil Court.
31. In view of my discussions above, it would necessary follow that the order of injunctllon by Itself cannot render the prosecution under section 630(1) Incompetent as suggested by Mr. Bagchi.
32. There is thus really no good ground for quashing of the Impugned criminal prosecution.
33. It is, therefore, time for us to determine as to whether there should at all be any stay of the criminal proceeding, as alternatively prayed for on behalf of the petitioners.
34. I now proceed to examine the decisions cited on behalf of the petitioners as well as the opposite party company on the question of stay.
35. In , M.S. Sheriff v. State of Madras, cited on behalf of the opposite parly, two sets of proceedings were pending against the
appellants in the Supreme Court. One set consisted of two ctvll suits for damages for wrongful confinement and the other consisted of two criminal prosecutions under section 344 1PC for wrongful confinement. It was said that the simultaneous prosecution of these matters will embarrass the accused. After the hearing of the appeal, the Supreme Court was informed that the two criminal prosecutions had been closed with liberty to file fresh complaints when the papers were ready, as the High Court records were not available on the application of the accused. As these prosecutions were not pending at the moment, the objection regarding them did not arise. But the Supreme Court observed that since the simultaneous prosecution of the criminal proceeding out of which the appeal arose and the civil suits will embarrass the accused, it thought it necessary to determine which proceeding should be stayed and, in doing so. made the following observations in paragraphs 15 and 16 of the reported Judgment.
“As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Court of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such as eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.”
“Another factor which weights with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished ….. and that the Innocent should
be absolved as early as is consistent with a fair and Impartial trial. Another reason is that it is undesirable to let things slide till memories are grown too dim to trust”
“This, however, is not a hard and fast rule, special considerations obtaining in any particular case might make some other course more expedient and Just.”
36. In , M/s. Karamchand Ganga Pershad v. Union of India, cited on behalf of the petitioners, some consignments of maize were transported from the State of Haryana to Howrah in West Bengal during the month of October, 1967. It was contended that the movements of maize had been controlled by the provisions of the Essential Commodities Act, 1955 read with Northern Inter-Zonal Maize (movement control) Order, 1967 promulgated by the State Government on May 3, 1967. But the restrictions on export imposed by that order were removed by the State of Haryana in October, 1967. At Howrah, the railway authorities refused to deliver the same to the consignees on the ground that the export in question was Illegal. The maize was seized by the police and it was subsequently forfeited. Thereafter, the persons responsible for the export of the maize were prosecuted and the prosecutions were pending. One of the contentions raised before the Supreme Court was that the State of Haryana had not lifted
the ban on export and further it had no power to lift the ban and as such the export was illegal and the railway authorities were competent to withhold the delivery of the goods. After elaborately hearing the .arguments, the High Court rejected the writ petitions on the sole ground that in view of the pendency of the criminal proceedings before some courts in the State of West Bengal, it is inappropriate for the High Court to pronounce on the questions arising for decision in the writ petitions. The Supreme Court was of the view that the High Court seriously erred in coming to such conclusion and remitted the cases to the High Court for disposal on merits. The Supreme Court observed that it is well established principle of law that the decisions of the civil courts are binding on the criminal courts, but the converse is not true.
37. In the single bench decision of the Bombay High Court in the case of Damodar Das Jain v. Krishna Charan Chakrraborty reported in (1985) 57-Company Cases 115, and affirmed by the apex court on appeal in , cited on behalfofboth the parties, an employee was allowed to occupy a flat by a company during his employment under the Company. The company terminated his service and the employee refused to hand over possession of the flat after the company had demanded the possession. The company Instituted a prosecution under section 630 of the Companies Act. The accused contended that he was in possession of the flat in his own right and was a tenant of the flat directly under the landlord under whom the company claimed to be holding the flat by virtue of successive paying guest agreements. The accused has filed a suit against the company as well as the owner of the flat for declaration that he was the owner of the flat and had obtained an Interim injunction against eviction which was in operation during the trial of the criminal case. The learned Magistrate negatived the claim of tenancy of the accused and convicted him of a charge under section 630 of the Companies Act. The Sessions Judge reversed the said conviction and acquitted the accused. The said order of acquittal came up for challenge before the Bombay High Court in a writ petition under Article 227 of the Constitution. The main question which arose before the High Court was whether, on the facts and circumstances of the case, the Magistrate could himself, while exercising Jurisdiction under section 630 of the Companies Act, determine the dispute as to the title to or property in the suit premises between the complainant company and the accused or was required to leave its determination to the civil court. The High Court held that the dispute between the parties as to the title to the premises was bona fide and that such a dispute between the parties was of a purely civil nature which should be best left to the civil court to determine. In such view of the matter, the Sessions Judge’s order reversing the order of conviction was upheld by the High Court.
38. It was argued on behalf of the petitioners that here also the dispute between the parties was with regard to the title to the flat concerned and that in view of the pendency of the civil suit and the operation of the ad interim injunction by the civil court, the dispute can be said to be a bona fide dispute of a purely civil nature and could be left to the civil court to determine and consequently, the criminal prosecution should be stayed till at least the Civil Court disposes of the temporary injunction matter. It was argued on behalf of the opposite party, on the other hand, that there is no
dispute with regard to the title to the flat concerned because the flat ts admittedly the property of the company and the question whether the petitioners’ continuance of possession of the fait was wrongful or not was certainly a question which falls within the scope and ambit of the Inquiry envisaged under section 630 and was well within the jurisdiction of the Magistrate to decide. On the contrary, the question whether the possession of the flat was wrongful or not would not arise for determination in the Civil Suit which was primarily one for specific performance of the alleged agreement and was really outside the scope and ambit of the inquiry to be made by the civil court. So, the question of granting any stay of the criminal case, cannot. In view of the pendency of the civil suit or the operation of ad interim injunction, arise at all.
39. In a single bench decision of Bombay High Court in (1986) 59 Company Cases 417, Krishan Avtar Bahadur v. Col Irwin Extross, cited on behalf of the opposite party, after the termination of service when the company called upon the employee to hand over the vacant possession of the flat, the employee, instead of vacating the flat, filed a suit in the Court of Small Causes under the Rent Act against the company and the owner of the flat claiming that he was a monthly tenant of the company. He was prosecuted before the Metropolitan Magistrate for wrongful withholding of the property of the company. Pending the prosecution, the petitioner filed a petition under section 482 Cr. PC for quashing the criminal proceeding or in the alternative, for slaying the proceeding pending the final disposal of the suit filed by him in the Court of Small Causes. It was contended that as the accused filed a declaratory suit in the Court of Small Causes at Bombay, seeking a declaration that he is a tenant of the premises, it is necessary to stay the proceedings before the learned Metropolitan Magistrate till the decision of the suit. It was also argued that the dispute between landlord and tenant regarding the tenancy was within the exclusive jurisdiction of the Court of Small Causes at Bombay and, as such, the criminal court has no Jurisdiction to entertain the criminal proceedings against the petitioner. The High Court negatived the contentions of the accused petitioner, and held that the plea of tenancy was not at all open to the petitioner accused on the facts of that case. It also held that while considering whether the plea of tenancy is a bona fide plea, it is always necessary to examine and consider the transaction on the basis of which the plea of tenancy is based, and if on those facts no plea of tenancy can be raised, such a plea cannot be entertained.
40. In . Protibha Rani v. Suraj Kumar, cited on behalf of the opposite parly, the Supreme Court observed at paragraph 21 : “There are a large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. The object of the criminal law ts to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrong doer in cases like arson, accidents, etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import.”
41. In (1990) 68 Company Cases 324. Atul Mathur v. Atul Kalra, cited on behalf of both the parties, the company secured a flat at Bombay on a leave and licence basis for residential occupation by Its employees. The leave and licence agreement was entered into on behalf of the company by the first respondent who was then the Divisional Sales Manager of the Company and acted under a power of attorney executed in his favour by the company. The first respondent filed a suit against the company and the owner of the flat for declaration that he was the actual licensee of the flat and for a permanent injunction to restrain the defendants from Interfering with his possession of the flat. Three days after filing the suit, the first respondent resigned from the company- As the first respondent failed to vacate the flat after resigning his post, the company filed a complaint against him under section 630 of the Act. The trial court and the appellate court concurrently held that the company was the licensee of the flat, that the first respondent had acted only as the power of attorney holder of the company in entering Into the leave and licence agreement and that his occupation of the flat was only as an employee of the company and consequently he was in unlawful occupation of the flat after the ceased to be an employee. He was, therefore, directed to deliver possession of the flat to the company. The first respondent filed a petition under section 482 Cr. PC before the High Court. It was contended before the High Court that since complicated questions of title were Involved, the Additional Chief Metropolitan Magistrate had no Jurisdiction or competence to adjudicate the matter in summary proceedings under section 630 of the Companies Act and the High Court was of the view that since the first respondent had filed a suit even before the complaint was filed, the civil court was in seisin of the matter and the criminal court ought to have stayed its hands and allowed the civil court to adjudicate upon the Issue. In support of this view, the High Court invoked the ratio in Damodar Das Join’s case (supra). The Supreme Court reversed the decision of the High Court and held that the company was the licensee. The Supreme Court held that the purpose of enacting 630 is to provide speedy relief to a company when Its property is wrongfully withheld by Its ex-employee and that if a view is mechanically taken that whenever a suit has been filed before a complaint is laid under section 630, the criminal court should not proceed with the complaint, it would not only lead to miscarriage of justice but also render Ineffective the salutory provisions of section 630. The Supreme Court observed that the facts in Damodar Das Jain’s case (supra) were very different and it was with reference to those facts that the High Court held that a bona fide dispute existed between the parties therein. The Supreme Court laid down the principle that every dispute would not become a bona fide dispute merely because the company’s claim to possession is refuted by Its ex employee and that the question as to when a dispute would amount to a bona fide dispute would depend upon the facts of each case. In view of the facts of that case, the Supreme Court was of the view that the first respondent had formulated a plan for clinging to his possession of the flat even after resigning his post and in accordance with that plan he had filed a suit in order to forestall the company from proceeding against him under section 630 of the Act. The Supreme Court held that merely because the first respondent had filed a suit before tendering his resignation, it can never be said that the civil
court was in seisin of a bona fide dispute between the parties and as such, the criminal court should have stayed Its hands when the company filed a complaint under section 630 of the Act.
42. In (1991) 70 Company Cases 287, Texmaco Ltd. v. Arun Kumar Sharma, cited on behalf of the opposite party, the accused had moved an application before the Magistrate seeking stay of the criminal case under section 630 of the Act. He had already instituted a civil suit seeking a declaration and injunction to the effect that he is in possession of the quarters as a tenant and was not liable to be dispossessed from the quarters except in accordance with law. He had also obtained a temporary injunction against the company restraining the company from dispossessing him forcibly. The learned Magistrate passed an order to the effect that the proceeding in the criminal complaint would continue but no final Judgment would be given till the matter was finally decided by the civil court. The question that arose for decision before the Delhi High Court was whether the proceeding on the criminal complaint should remain stayed or not till the matter is finally decided by the civil court. Reliance was placed on the cases of M.S. Sheriff v. State of Madras (supra), A Mathur v. A Kalra (supra) Karamchand Gangaprasad v. Union of India (supra) and the Delhi High Court held that there was no complicated bona fide question of fact or law which could not be conveniently dealt with by the criminal court in the facts and circumstances of that case, and in such view of the matter, left the questions to be decided by the criminal court. It is also very much significant to not the observations of the Delhi High Court at pages 370-371: “It s common knowledge that, both in the public as well as in the private sector, companies are required to provide residential accommodation to their officers and employees as a condition of their service to attract better talent and have of necessity to purchase residential flats in multi-storeyed buildings in large cities and towns for the use of their officers and employees during the course of their employment. It is also common knowledge that many employees who have been provided accommodation by the company as a perquisite or as a condition of service fail to vacate and deliver back possession to the company after they ceased to be in the employment. They adopt diverse proceedings to delay or defeat the claim of the company.”
43. In (1993) 76 Company Ceases 323, S. Palaniswamy v. Sree Janardhana Mills Ltd. cited on behalf of the opposite party, the petitioner sought to have the complaint under section 630 of the Companies Act quashed on the ground that they had obtained injunction from the civil court for the maintenance of status quo. The Madras High Court dismissed the prayer of the petitioners and held that under section 630 of the Companies Act the moment the employment ceases, the employee is no longer entitled to remain in possession of the premises allotted to him and that the withholding of the premises, after cessation of the employment, amounts to wrongful with holding punishable as an offence by the criminal court, besides his being required to vacate and hand over possession to the company which allotted the premises to him.
44. In (1993) 78 Company Cases, 518, Texmaco Ltd. v. Ram Dayal, cited on behalf of the opposite party, on an application moved by the petitioner, the Magistrate directed that the proceeding under section 630 of the
Companies Act would continue but the judgment would not be announced until the court finds that the civil case filed by the accused is mala fide and not bona fide or till the civil court gives its final verdict. On a revision filed by the company against the stay order, the Delhi High Court held that the proceedings could not be stayed merely because the civil litigation was pending between the parties and in such view of the matter, it set aside the order and directed the criminal court to proceed with the trial.
45. In (1994) 81 Company Cases 104, Kannankandi Gopan Krishna Nair v. Prakash Chunder Juneja, cited on behalf of the opposite party, the Bombay High Court held that section 630 of the Companies Act does not concern Itself with the aspect of title to property, but is exclusively confined to its possession. The Delhi High Court observed that it has become a regular feature for the defence in these cases to contend that there was an understanding that the company would relinquish Its right in the premises in favour of the employee or that the company would give him the option to buy it at a concessional rate and that even if the employee had asked for it or the company had considered It, both situations are thoroughly irrelevant and unconscionable. It further observed that under section 630, there is a special provision specifically directed at restoration of possession of that property and that Its effect cannot be defeated or totally nullified by taking resort to parallel proceedings. If such a procedure were to be allowed, it would be tantamount to obllte-ratlng section 630 of the Companies Act. It was also held in that case by the Delhi High Court that an offence under section 630 is a continuing offence and that where company property is wrongfully withheld by a person who is no longer an employee, and who in law was obliged to restore possession Immediately on ceasing to be an employee, the offence is committed at that point of time and recurs until the property is restored with the company. It also observed: “This last aspect of the matter is of some consequence because the familiar modus operandi employed, as has happened in the present case. Is to take advantage of the overloading of the courts by starting some frivolous litigation in a civil court, adopting pleas that are couched in the garb of legality and this handle is used to either usurp the property or to retain it for decades together”.
46. In (1994) 81 Company Cases 132. Indian Hotel Co. Ltd. v. Bhaskar Moreshwar Karve, cited on behalf of the opposite party, the respondent Joined the petitioner company and was allotted, as an officer of the company, a flat belonging to the company, for residential purposes. Then he expressed his wish to retire prematurely and requested that the flat occupied by him would be sold to him at the book value. The managing director of the company agreed in principle, but stated that the matter was subject to modification and approval by the board of directors. The respondent, however, did not retire, but continued in service. Some years later, he requested the managing director to arrange to have the sale of the flat to him at book value completed immediately. The managing director pointed out that since there had been a drastic change in real estate prices, he could not put the matter up to the board. In 1989, the respondent retired from service, but did not vacate the flat. He was Informed that the offer to buy the flat at book value had been turned down by the board of directors, whereupon the respondent called upon the company to honour its
commitment Subsequently the company, after calling upon the respondent to hand over possession of the flat, Instituted a complaint against the respondent under section 630 of the Companies Act. Thereafter, the respondent filed a suit against the company for specific performance of the agreement to sell the flat to him at book value. The company also filed a suit for vacant possession of the flat. Against the framing of the charge under section 630 of the Act, the respondent filed a revision petition, contending that it was unjustified and pleaded that he was entitled, on the Doctrine of Promissory Estoppel, to buy Uie flat at book value and that he was an Intending purchaser and had not made any alternative arrangements for accommodation. The petition was allowed. The company filed a further revision petition before the High Court and the Bombay High Court in allowing the revlslonal application of the company, made certain observations which are also significant in the facts and circumstances of the present case. The observations and as follows : “It has become almost routine in this class of litigation, for a contention to be adopted by the defence, that a promise was made to the accused ex-employee by or on behalf of the company that the premises in question would be sold to the employee at book value, or. In other words, for a fraction of the real market value or, in the case of rented premises, that the tenancy would be surrendered in favour of the occupant. This contention is pleaded in all seriousness and it is contended that the accused is entitled to enforce his rights by insisting on specific performance by the company and that, consequently, the Ingredient of wrongful retention or withholding of the premises is absent. Litigation is commenced in the civil courts for a declaration that the accused should be declared a tenant or that he is entitled to enforce the sale at book value to himself for a totally unreal consideration on the ground lhat he is an intending purchaser, apart from other parallel proceedings in various courts, and the criminal prosecution Instituted by the company is sought to be stayed on the ground that the accused has raised Issues which are within the exclusive jurisdiction of the civil court where the accused can confidently assure himself that the first round of litigation will not be over for at least two decades if the requisite dilatory tactics are resorted to”.
47. In , V.M. Shah v. State of Maharashtra, cited on behalf of both the parties, the accused was convicted under section 630 of Companies Act for wrongful withholding of property on the basis of findings recorded by criminal court. Subsequently, the civil court after full dressed trial recorded the finding in the suit for eviction that the accused had not come into possession through the Company, but was having Independent tenancy rights from the principal landlord. The Supreme Court held that the findings recorded by the Criminal Court stand superseded by the findings recorded by the Civil Court and in such view of the matter, the conviction was set aside.
48. In the single bench decision of our High Court reported in 1989 C Cr LR (Cal) 310, Ashok Kumar Jaiswal v. State, which was cited on behalf of the petitioners, the accused petitioners made a prayer before the trying Magistrate for stay of a criminal case under section 409 IPC till the disposal of a civil suit on the ground that if the criminal case is allowed to proceed, there will be miscarriage of justice and the interest of the petitioners will
be Jeopardised. The criminal case was for prosecution for an offence of criminal breach of trust under section 409 1PC in respect of 13 dtesel engines and was Instituted before filing of the civil suit which was for a declaration of title to the said 13 engines in respect of which the criminal breach of trust is alleged to have been committed. The Magistrate rejected the prayer for stay of the criminal case and the accused moved the High Court for revision. The High Court was of the view that the dispute between the parties was essentially of a civil nature and in such circumstances, this dispute has to be settled before any question of criminal liability can be satisfactorily adjudicated upon. Applying the test of likelihood of embarrassment as laid down by the Supreme Court in M.S. Sheriff’s case (supra), the High Court held that if the criminal case is allowed to proceed and ends either in conviction or in acquittal it may be embarrassing for the civil court to take a proper decision on the evidence which may be adduced before it, while if the criminal case is stayed and the civil suit is allowed to proceed, the decree in such suit will not in any way cause any embarrassment to the criminal court. In the facts and circumstances of that case, the High Court was pleased to stay the criminal case till the disposal of the civil suit.
49. It may be Incidentally pointed out that the test of embarrassment in 7.5 Sheriff’s cose (supra) that was considered to be relevant by the Supreme Court in regard to the question of stay was with reference to the accused and not the civil court, while in Ashok Kumar Jaiswal’s case (supra) the High Court considered the question of embarrassment for the civil court. Moreover, the criminal proceeding in Ashok Kr. Jaiswal’s case was not one under section 630 of the Companies Act and the civil suit there Involved the question of title to the properties in respect of which criminal breach of trust is alleged to have been committed. The decision to/stay the criminal case till the disposal of the civil suit was taken with reference to the facts of that case and is quite distinguishable from our present case.
50. Thus, on a careful analysis of the decisions that were cited on behalf of both the petitioners and the opposite party for and against their respective contentions in connexion with the proposed stay of the criminal proceeding till the disposal of the temporary injunction in the civil suit, the essence of the principles laid down in the said decisions may be summed up as follows.
51. No hard and fast rule can be laid down to determine the question as to which proceeding–as between the civil and the criminal proceeding–should be stayed. But possibility of conflicting decisions in the civil and criminal proceedings is an eventuality envisaged by the law and is not a relevant consideration. A likelihood of embarrassment to the accused is, however, a relevant consideration. Public Interest demands that the criminal Justice should be swift and sure. This, again is not a hard and fast rule. Special considerations obtaining in a particular case might make some other course more expedient and Just.
52. The purpose of enacting section 630 of the Companies Act is to provide speedy relief to a company when the property is wrongfully withheld by its ex-employee.
53. The offence under section 630 is a continuing offence and continues as long as the company’s property is wrongfully withheld.
54. Decisions of civil courts are binding on criminal courts but the converse is not true.
55. The Magistrate’s Jurisdiction under section 630 of the Companies Act could extend only to those cases where there is either no dispute or. In any event, no bona fide dispute that the property Involved was the property of the company. In cases where there is such a dispute Involving complicated questions of title to the property. It would be purely of civil nature and the civil court would be the more appropriate forum for the purpose of adjudicating it and the Magistrate cannot and should not venture to determine the same in a summary proceeding as envisaged under section 630 of the Companies Act.
56. Every dispute would not become a bona fide dispute merely because the company’s claim to possession is refuted by its ex-employee. Merely because a suit has been filed raising same dispute it cannot be said that the civil court is in seisin of a bona fide dispute and that the criminal court should have stayed Its hands when the company filed a complaint under section 630 of the Companies Act.
57. When a dispute would amount to a bona fide dispute would depend upon the facts of each case and it is always necessary to examine and consider the transaction on the basis of which the dispute is raised to determine if the dispute is bona fide.
58. There is no rigid rule which makes it necessary for a criminal court to adjourn or postpone the hearing of the case indefinitely or for an unduly long period when only because some proceedings which may have some bearing on the points raised in the criminal proceeding are pending elsewhere.
59. In the present case, absolutely no question of title in respect of the flat concerned is involved in the criminal proceeding because there is no dispute that the flat has all along been and is still the property of the company. The only question to be decided in the criminal proceeding is whether the said property was being wrongfully withheld by Arun Kr. Durgaprasad, the ex-employee of the company and, after his death, by his wife and son, that is to say. the present petitioners. This is not at all a complicated question which cannot be conveniently determined by a criminal court even in a summary proceeding under section 630 of the Companies Act. The alleged oral agreement dated IO.6.94 constitutes the only defence of the present petitioners in the criminal proceeding and the cause of action for the civil suit is also based on the said agreement. I have already observed that such an agreement would, at best, create a personal obligation of the company under section 40 of the Transfer of Property Act to be enforced in the civil suit. The temporary injunction as prayed for prima facie appears to be outside the scope of the suit for specific performance. There is hardly any scope for arguing that the possession of the flat by the present petitioners or for that matter, by their predecessor-in-interest, Arun Kumar Durgaprasad was lawful requiring protection from a court of law at anytime after the expiry of December, 1994. The ex parte ad interim
Injunction which is in force in favour of the petitioners and against the company will also be of no avail to them in withholding the possession of the flat if Arun Kumar Durgaprasad was in wrongful possession of the flat after the expiry of December, 1994 the present petitioners would be as much in wrongful possession of the flat in their capacity as heirs and legal representatives as their predecessor-in-interest. Mere pendency of a suit or operation of an ex parte ad interim Injunction could not ipso facto make a dispute bona fide if the dispute is otherwise not so. When the suit is filed whether before or after the filing of the complaint under section 630 of the Companies Act and the fact that an injunction has been granted may be relevant for considering whether a dispute is bona fide. But on a scrutiny of the particular dispute involved in the civil suit here, I cannot persuade myself to hold that it is a bonafide dispute which falls within the exclusive jurisdiction of the civil court and should be decided by the civil court and not by the criminal court. That apart, even taking the best view of the matter in favour of the petitioners, it is not understood how there can be any likelihood of any embarrassment being caused to the petitioners or to the civil court, in case the criminal proceeding is allowed to continue to Its logical conclusion. The offence under section 630 is a continuing offence and until and unless the alleged agreement is specifically performed by the company by virtue of the decree that may be passed in the civil suit, the question of getting any right to possess the flat by the petitioners would not arise and even if there be any direction by the criminal court for delivery of possession of the flat by the petitioners in favour of the company, before the petitioners acquire their right to possess the flat as stated above, there will be no likelihood of any embarrassment being caused either to the civil court or to petitioners. The company in that case would get back possession of the fiat to which it is legally entitled and if the conveyance is finally executed in execution of the decree that may be passed in the civil suit, there will be no Impediment to the petitioners gelling possession from the company at that point of time. It is only if the civil suit reaches its concluding stage and the petitioners become successful is getting the possession of the fiat in execution of the decree before the criminal case reaches its concluding stage that there will be no occasion then for the criminal court to direct delivery of possession of the flat in favour of the company. But even in such an eventuality, the prosecution under sub section (1) of section 630 of the Act could continue till its logical end without and Impediment.
60. Thus, having anxiously considered the matter from all possible angles, I have absolutely no hesitation to hold that this can not at all be a fit and proper case where the criminal proceeding should be stayed as prayed for on behalf of the revisionists.
In this view of the matter, the revi
sional application falls and is hereby dismissed.
61. Revisional application dismissed