IMPORTANT POINT
Persons defying law and acting unauthorizedly and not honouring their own undertakings are not entitled to any further mercy or sympathy.

JUDGMENT

Deepak Verma, J. —

1.Leave granted.

2.Under the web of hypertechnicalities justice has taken a back seat as is projected in the order dated 22.11.2006, passed by Additional Chief Metropolitan Magistrate, Girgaum, Mumbai in Crl. Case No. 38/S/2005 filed by appellant herein against accused respondent No.1 and 2, whereby and whereunder the appellant’s criminal complaint filed under Section 406 read with Section 34 of the Indian Penal Code [hereinafter referred to as “IPC”] and under Section 630 of the Companies Act, 1956 (hereinafter referred to as “the Act”) was dismissed. Against the said order of dismissal, the appellant herein filed an application before the learned Single Judge of the High Court in Criminal Application No. 450 of 2007 seeking leave to file the appeal which was also dismissed on 14.7.2008, giving rise to filing of this appeal by the original complainant. Unfortunately, the accused have also with vehemence supported hypertechnicalities adopted by the aforesaid two courts, to contend that no interference is called for in the light of the facts as found in the aforesaid two orders.

3.Facts shorn of unnecessary details are mentioned herein below:

4.Appellant is a Company (hereinafter shall be referred to as “the Company”) duly registered under the Act and is carrying on business of manufacturing two and three wheelers’ automobile products. Mr. V.S. Parthasarthy is the Factory Manager of the Appellant-Company and has been posted in Mumbai. A resolution has been passed by the Company on 31.12.2001 to authorise Mr. V.S. Parthasarathy, Factory Manager to represent the company and to sign, verify, execute and deliver all vakalatnamas, pleadings, complaints, affidavits, declarations, petitions, written statements, rejoinders, papers, deeds, receipts, assurances etc. in a court of law. On the same day, he has been duly authorised by virtue of the Power of Attorney executed in his favour by the Appellant Company to file and prosecute the aforesaid complaint.

5.On the complaint having been filed before the Additional Chief Metropolitan Magistrate, the same was registered. The allegation in the complaint is that company is having a flat situated at 17, Carmichael Road (behind Jaslok Hospital), Mumbai. One room near the garage (hereinafter shall be referred as the ‘servant quarter’) is also under the ownership of the company for being used by its servants. Even though, the complaint was filed under Section 406 / 34 of the IPC as also under Section 630 of the Act, but cognizance was taken by the trial court only under Section 630 of the Act.

6.Respondent No. 1 (accused No.1 herein) was working as a caretaker with the Company to look after the flat. It is not in dispute that he has retired from the service of the Company with effect from 6.3.1992. The servant quarter was allotted to accused No. 1 by virtue of his service in the company. Obviously, after his attaining age of superannuation, he was supposed to have delivered its peaceful and vacant possession to the appellant/company. Instead of doing so, he gave its possession to his daughter, accused No.2, and shifted to Ambernath. As on date, it is accused No. 2, daughter of accused No.1, who is in actual physical possession of the said servant quarter.

7.It is pertinent to note that a written undertaking is said to have been tendered by respondent no.1 on 5.1.2000 to the effect that he will vacate the servant quarter within one month thereof.

8.Since despite serving several legal notices to the accused, they refused to hand over its peaceful vacant possession to the appellant, it was constrained to file the aforesaid complaint.

9.Shri V.S. Parthasarthy, appeared as PW-1, and deposed before the Court circumstances under which accused No.1 was handed over possession of the servant quarter, where he had worked as caretaker. After his retirement, despite promise made to the Company he has failed to vacate the servant quarter. His evidence has been dealt with extensively by the t