V.M. SHAHversusTHE STATE OF MAHARASHTRA AND ANR.

                        V.M. SHAH                                             A
                             v.
           THE STATE OF MAHARASHTRA AND ANR.

                           AUGUST 25, 1995
                                                                              B
           [K. RAMASWAMY AND B.L. HANSARIA, JJ.]

      Companies Act, 1956 : Section 630.

       Company-property of-Withholding by employee-Prosecution
f or--Conviction by Criminal Cowt-Civil Cowt's finding that employee had      c
independent tenancy 1ights and not through company-Held until set aside by
Appellate Cowt the finding recorded by Civil Cowt get precedence over
findings of Climinal Cowt-Conviction under section 63(}-Held wzsus-
tainable.
                                                                              D
      Respondent 2-Company instituted proceedings against its appellant-
employee under section 408 of the Indian Penal Code and Section 630 of
the Companies Act, 1956 on the ground that the latter had failed to deliver
possession of the flat which was given to him during the course of his
employment. The Trial Court convicted the appellant under section 630.
The appellate Court confirmed that conviction but altered the sentence.       E
The High Court confirmed the order of the appellate Court.

       During the pendency of the criminal proceedings, the Company filed
a suit in the small Causes Court for eviction of the appellant, pleading
that the Company had tenancy rights in the flat in question which was         F
given to the appellant in lieu of his services on leave and licence basis.
Consequently upon his resignation he was enjoined to deliver possession
of the flat to the Company. The appellant contested the suit on the ground
that he was not in occupation of the flat as employee of the Company but
had independent tenancy rights. Rejecting the Company's case, the Trial       G
Court dismissed its suit and held the appellant had proved that he had
independent tenancy rights. Against this order, the Company preferred an
appeal, and it is pending.

      In appeal to this Court on the c1uestion whether the appellant's
conviction under section 630 was sustainable :                                H
                                    79
    80                     SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.

A         Allowing the appeal, this Court                                           r


          HELD : 1. It cannot be said that the appellant has been in wrongful
    possession of the property entailing his conviction and punishment under
    section 630 of the Companies Act and requiring handing over of the
    possession of the flat. [84-D]
B
          2. The civil court after full dressed trial, recorded the finding that
    the appellant had not come into possession through the company but had
    independent tenancy rights from the principal landlord and, therefore, the
    decree for eviction was negatived. Until that finding is duly considered by
C   the appellate court after weighing the evidence afresh and, if so warranted,
    reversed, the. findings bind the parties. The findings, recorded by the
    criminal court, stand superseded by the findings recorded by the civil
    court. Thereby, the findings of the civil court get precedence over the
    findings recorded by the criminal court, in particular, in summary trial
    for offences like the one under section 630. The mere pendency of the
D   appeal does not have the effect of suspending the operation of the decree
    of the civil court; and neither the finding of the civil court gets disturbed
    nor the decree becomes inoperative. [83-H; 84-A-C]

          Baldev Klis/ma v. Shipping C01poration of India Ltd., AIR (1987) SC
E   2245; Atul Mathur v. Atul Kalra & Anr., [1989) 4 SCC 514; Gokak Patel
    Vo/kart Ltd. v. D.G. Hiremath & Ors. JT (1991) 1 SC 376 and M.S. Shliff v.
    State of Madras, AIR (1954) SC 397, referred to.

         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
    1011 of 1995.
F
         From the Judgment and Order dated 28.4.95 of the Bombay High
    Court in Crl. No. 1222 of 1995.

          Santosh Hegde, P.K. Dey, Ms. Rani Jethmalani and A.A. Khan for
G the Appellant.
          V.P. Vashi and K.J. John for the Respondents.

          The following Order of the Court was delivered :

H         Leave granted.
                          V.M. SHAH v. STATE                              81

       This appeal by special leave arises form the judgment and order          A
dated April 28, 1995 by the Bombay High Court in Criminal Application
No. 1222 of 1995. The appellant had joined the services of M/s. Rallis India
Ltd. on march 10, 1965. He had occupied a residential flat at Morena No.
11, M.C. Dhanuka Road, Bombay. The resigned on July 15, 1986. The
Rallis India Ltd., the second respondent ('the company' hereinafter), in-       B
itiated proceedings in January, 1987 against the appellant under s.408 IPC
and s.630 of the Companies Act for· the continued occupation of the
appellant in the said flat. The Magistrate, by his order dated October 12,
1994, found the appellant guilty of offence under s.630 of the Companies
Act and directed restitution of the flat. On appeal, the Session Judge partly
allowed it by his Judgment dated March 20, 1995, altering the sentence          C
while confirming the conviction. The High Court confirmed the same by
the impugned order.

       The primary question in this case is whether the conviction under
s.630 of the Companies Act sustainable? We have heard the counsel on D
both sides. Pending. criminal proceedings, the Company laid L.E. & C. Suit
No. 104/126 of 1989 in Small Causes Court, Bombay for eviction of the
appellant. The case set out in the plaint and evidence adduced in proof of
the issues framed therein was that the Company had tenancy rights in the
flat. Consequent upon joining the service, the appellant was inducted into
possession. On his resignation and acceptance thereof, he ceased to be an E
employee of the Company. Consequently, the appellant is enjoined to
deliver possession of the premises to the Company but he failed to do so.

      The case set up by the appellant and evidence adduced in proof
thereof was that there is no jural relationship between the appellant and       f
the Company. he is not in occupation of the premises in his capacity ~s an
employee of the company. He is a tenant under Mr. Badani and others on
a monthly payment of rent to his landlord. The Company had surrendered
the tenancy rights in the flat to the owners due to dilapidation of the
building etc. Thereafter, the appellant occupied the flat and was in posses-    G
sion thereof as a direct tenant with the landlords.

      The trial court after considering the entire evidence recorded the
findings by his judgment and decree dated June 9, 1995 holding that the
Company failed to prove that they are the tenant in respect of the suit
premises. They had not given the premises to the appellant under leave H
    82                    SUPREME COURT REPORTS (1995) SUPP. 3 S.C.R.

A   and licence agreement, as pleaded by them in the plaint. The Company
    failed to prove that the appellant is a licensee of the suit premises. It also
    failed to prove that the premises were given to the appellant in lieu of his
    services. On the other hand, the appellant proved that he is a monthly
    tenant of the premises with the landlords Badami etc. Accordingly, the suit
    was dismissed. We are informed that an appeal has been filed before the
B   bench of Small Causes Court and it is pending.

           Sri Santosh Hegde, learned Senior counsel for the appellant, con-
    tended that whatever may be the findings recorded by the criminal court
    and affirmed by the High Court on the liability of the appellant to deliver      '
C   possession to the Company by operation of s.630(1) of the Companies Act,
    they are no longer tenable in view of the findings recorded by the Civil
    Court. Therefore, the orders passed under s.630(1) of the Companies Act
    is illegal and unsustainable. Sri Maisty, learned counsel for the Company,
    contended that the findings of the small Causes Court are contrary ta the
D   evidence and clearly unsustainable. In view of the concurrent findings
    recorded by the criminal courts for offence under s.630(1) of the Com-
    panies Act, the order passed thereunder does not become illegal. There-
    fore, the appellant is liable to be ejected and needs no interference under
    Art. 136 of the Constitution.

E          In Ba/dev Klisltna v. Shipping Corpn. of India Ltd., AIR (1987) SC
    2245, this Court considered the scope of sub-s.(1) of s.630 of Companies
    Act and held that an officer or an employee of a Company who obtains
    possession of any property of the Company during the course of his
    employment, to which he is not entitled but for employment, if he does not
F   deliver possession of such property to the Company, after termination of
    his property to the company, he would be in wrongful possession of such
    property. Therefore, the existence of the relationship of employer and
    employee is a condition precedent of an employee. If the Company, having
    any property of the Company in his pqssession wrongfully withholds it or
    knowingly applies it to purposes other than those expressed or directed in
G   the articles of company and authorised by the Companies Act, he will be
    liable for the punishment under s.630.

           lnAtul Mathur v.Atul Katra &Anr., (1989] 4 SCC 514, another bench
    of this Court, held that because of mere pendency of a suit in a civil court
H   it cannot be said that the civil court is in seizin of the bona fide dispute
                               V.M.SHAH v. STATE                                83

    between the parties, and as such the criminal court should have stayed its        A
    hands when the Company filed a cqmplaint under s.630 of the Act. Such
    a view would lead to miscarriage of justice and render s.630 ineffective.
    Dispute regarding claim of property between Company and its employee
    depends upon facts in each case. Merely because Company's claims to
    possession was refuted by the employee, it would not amount to bona fide
                                                                                      B
    dispute. The criminal court, therefore, would be entitled and competent to
    proceed with the enquiry on the complaint filed on behalf of the Company
    and decide the matter according to law.

           Gokak Patel Volkmt Ltd. v. D.G. Hiremath and Ors., JT (1991) 1 SC
    376 is also relied on Sri Maisty. Therein, the question was whether the           C
    failure to deliver possession and the wrongful withholding of the property


-   would be a continuing offence? This Court held that failure to deliver
    possession or wrongful withholding the property would be a continuing
    offence and period of limitation must be counted accordingly.
                                                                                      D
          M.S. Sliatiff v. State of Madras, AIR (1954) SC 397 is also pressed
    into service. Therein, this Court held that as between the civil court and
    the criminal proceedings, the criminal matters should be given precedence.
    No hard and fast rule can be laid down but the possibility of conflicting
    decisions in the civil and criminal Courts is not a relevant consideration.
    Law envisages such an eventuality when it expressly refrains from making          E
    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 is the likelihood of embarrassment. Another relevant factor
    to be noted is that a civil suit often drags on for years and it is undesirable
    that a criminal prosecution should await till everybody concerned had             F
    forgotten all about the crime. Public interest demands that criminal justice
    should be swift and it should ensure that the guilty is punished while the
    events are still fresh in public mind 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 have grown
    too dim to trust. This, however, is not a hard and fast rule. Special             G
    considerations obtaining in any particular case may make some other
    course more expedient and just. Therefore, each case had to be considered
    on its own facts.

          As seen that the civil court after full dressed trial recorded the H
    84                    SUPREME COURT REPORTS [1995) SUPP. 3 S.C.R.

A finding that the appellant had not come into possession through the Com-
    pany but had independent tenancy rights from the principal landlord and,
    therefore, the decree for eviction was negatived. Until that finding is duly
    considered by the appellate Court after weighing the evidence afresh and
    if it so warranted reversed, the findings bind the parties. The finqings,
    recorded by the criminal court, stand superseded by the findings recor<;led
B   by the civil court. Thereby, the findings of the civil court get precedence
    over the findings recorded by the trial court, in particular, in summary trial
    for offences like t~e one under s.630. The mere pendency of the appeal
    does not have the effect of suspending the operation of the decree of the
    trial Court and neither the finding of the civil court gets disturbed nor the
c   decree becomes inoperative.

           In these circumstances, we are clearly of the opinion that it cannot
    be held that the appellant has been in wrongful possession of the property
    entailing his conviction and punishment urider s.630 of the Companies Act
    and requiring handing over of the possession of the flat. The appeal is
D   accordingly allowed. No Costs.

    T.N.A.                                                       Appeal allowed.