1. These two matters arising out of the same proceeding and against the same judgment of the learned Sessions Judge dated 23rd April, 1984 can be disposedd of by a common judgment.

2. Criminal Writ Petition No. 259 of 1984 under Article 227 of the Constitution and also under S. 482 of the Criminal Procedure Code is by the Complainant Company challenging the validity of the judgment and order of the learned Sessions Judge dated 23-4-1984 acquitting Respondent. No. 1 the accused, of the charge under S. 630 of the Companies Act by reversing in appeal the judgment and order of the learned Metropolitan Magistrate dated 30-11-1983 convicting the accused of the said offence under Section 630 of the Companies Act and sentencing him to pay a fine of Rs. 500A and in default one month's simple imprisonment. Criminal Application No. 806 of 1984 is filed for seeking leave of this Court to file an appeal against the said order of acquittal of the accused by the said Sessions Judge. The said application was directed to kept along with the Writ Petition.

3. At the outset the learned Counsel for the accused has contended that a Writ Petition under Art. 227 of the Constitution against the order of acquittal cannot be maintained in view of the remedy by way of appeal against the said order of acquittal being provided for under sec. 378(4) of the Criminal Procedure Code. It was also contended by the learned Counsel that in view of the specific provisions of section 401(3) of the Criminal Procedure Code barring this Court's Revisional Powers in converting an order of acquittal into an order of conviction, the petition under section 482 of the Criminal Procedure Code involving inherent powers of this Court also cannot be maintained. The learned Counsel for the Complainant Company had no satisfactory answer to the said contentions. In my opinion in view of the said provisions of the Criminal Procedure Code neither the Writ Petition under Article 227 of the Constitution nor an application under S. 482 of Criminal Procedure Code involving inherent powers of this court was maintainable. The result therefore was that Rule granted in Writ Petition No. 259 of 1984 would stand discharged.

4. Being aware of these difficulties in case of the Writ Petition, the Complainant Company has also filed an application under Section 378(4) of the Criminal Procedure Code being Criminal Application No. 806 of 1984 seeking leave to appeal against the said order of acquittal by the learned Sessions Judge. Since I heard in this matter full arguments of the learned Counsel on both sides, while dealing with the said Writ Petition, as regards the Criminal Court's power under Section 630 of the Companies Act, I thought it proper to condone the delay of 7 days in filing the said application, grant leave, admit the appeal and treat the arguments advanced as being the arguments advanced in the appeal itself.

5. In this case proceedings commenced on a complaint by a company called Indian Textile Company (Pvt.) Ltd. (hereinafter called ‘the Company’) with its head office at Benaras and Branches at Bombay and Calcutta, against the accused-Respondent No. 1 who was in the employment of the Company till October 1979 charging him under Section 630 of the Companies Act for wrongfully withholding company's property being a flat No. 6 at ‘Shirin Colaba, Bombay 400005, converting the same to his own use and also under sections 408 and 381 of I.P.C for removing the record of the Company. The said complaint came to be filed under the following circumstances:—

6. The Accused was an employee of the said Company having joined its service at Calcutta in 1943. In 1947 he was transferred to Bombay Branch where he continued to work as a Company's salesman till May 1969 and thereafter continued in the employment of the co. as Manager and Officer till 1979. In May 1979 he was again transferred to Calcutta but he did not join his duties there. The Company thereupon terminated his services and the accused by his letter dated 1-12-1979 intimated to the Company, his acceptance of termination of his services from 4-10-1979. Admittedly there was no agreement in writing between the Company and the accused setting out the terms and conditions of the service of the accused with the Company. Thereafter on 22-1-1980 the accused filed a dispute with the Labour Court claiming certain dues from the Company by reason of wrongful termination of his services, which dispute is pending.

7. It seems that during his employment with the Complainant in Bombay till 1973, the accused was allowed to occupy the Company's flat at Esplanade Mansion, opposite Kala Ghoda, Bombay. Thereafter sometime in July 1973 the Company through its director one Mahendrakumar Gupta (since deceased) entered into an agreement termed as “Paying Guest” agreement in respect of Flat No. 6 in a building called ‘Shirin’, Colaba, Bombay 400005, with its owner one R.L Rodrigues (since deceased) for a period of 9 months from 1-4-1973 with an option to renew the same on the same terms and conditions for the same period. Another agreement of the same date for the use of fixtures and furniture was also executed between the parties simultaneously. It was not disputed that the accused had countersigned the said agreements and that the said agreements in terms permitted the Company as a paying guest to allow the accused by his name to use and occupy the said flat on purely paying guest basis. Accordingly the accused came to occupy the said premises. The said agreements were thereafter renewed only twice once on 6-9-1974 and the other on 1st April, 1975 for a period of 9 months each, the period under the 2nd agreement dated 1-4-1975 expiring on 31-12-1975. Admittedly after the expirty of the said 2nd agreement no further agreement was executed although the accused continued to occupy the said premises. The Company also did not pay compensation charges payable in respect of the said premises thereafter till 10-4-1982. Although the services of the accused were terminated as far back as October 1979, it was for the first time that the Company by its letter dated 24-9-1981 had demanded possession of the premises from the accused. As aforesaid, as the accused refused to hand over possession, the Company through its director filed a complaint against the accused being Case No. 114.S/1981 charging the accused under Section 630 of the Companies Act as also under sections 408 and 381 of I.P.C alleging that the accused had wrongfully withheld the Company's premises and had dishonestly converted the premises to his own use and for removing the record of the Company. However as the Company did not press for charges under sections 408 and 381, the learned Magistrate took cognisance only of the charge under Section 630 of the Companies Act and issued process against the accused in respect of the said charge.

8. The accused denied the charge. His case firstly was that premises were not the property of the Company. Secondly he contended that he was in possession of the premises in his own right and was a tenant of the premises directly from the landlord and thirdly he contended that not being an employee of the Company at the date of complaint the charge under Section 630 of the Companies Act cannot be sustained.

9. Pending Criminal proceedings the accused has also filed a suit in the Court of Small Causes at Bombay being Declaratory Suit No. 1366 of 1983, against the Company and the owner of the premises, for a declaration that he was a tenant which suit was pending hearing and had obtained an interim injunction against eviction, which was at present in operation.

10. At the hearing on behalf of the Company various witnesses were examined and documents produced. The learned Magistrate by his judgment and order dated 30-11-1983 inter alia, held on the interpretation of the agreements produced, that the Company was a licensee under the said agreements and that in view of there being no agreement between the parties after the agreement of 1st April, 1975 expiring on 31st December, 1975, the Company had become a tenant of the premises. The court further held that the accused was given the premises while he was in service on an understanding that he should occupy the same till such time as he was in service of the Company. He negatived the claim of the accused as being a tenant of the premises based on the letter dated 9-4-1973 (Ex. J) on the Company's letter-head under the admitted signature of Company's then director Mahendrakumar Gupta inter alia stating that the Company had no right or claim on the said premises, on the ground that the said letter was forged as being subsequently written by stealing a blank letter-head of the Company containing the signature of the Company's said director. He also of the Company containing the signature of the Company's said director. He also negatived the other contentions of the accused. In the result the learned Magistrate convicted the accused of the charge under Section 630 of the Companies Act and sentenced him to pay a fine of Rs. 300/-, in default one month's simple imprisonment. He also granted time till 31-3-1984 to the accused to vacate the premises and in default to suffer simple imprisonment for 6 months.

11. Against the said judgment and order of the learned Magistrate the Accused filed an appeal to the Sessions Court, Bombay, being Criminal Appeal No. 463 of 1983.

12. The learned Sessions Judge mainly addressed himself to the question whether on the evidence on record it was possible to come to a definite conclusion that the concerned premises were the property of the Company, to give jurisdiction to the learned Magistrate to deal with the complaint under Section 630 of the Companies Act. The court held that section 630(1) presupposed that the property of the Company must be definite one and should not be a subject matter of controversy, as procedure under section 630 was a summary procedure. The Court also pointed out that on the expiry of the last agreement dated 1-4-1975 termed as ‘Paying Guest’ agreement, on 31-12-1975, no fresh agreement having been executed, the Company had no existing right in premises and that was why in reply to the landlord's letter dated 28-10-1976 (Ex. 11) the Company had stated to the landlord that it was willing to vacate the premises. The Court also on the interpretation of the agreements between the Company and the landlord specifically termed as ‘Paying Guest’ agreements held that the said agreements being mainly licence agreements they would not create any interest in the premises in favour of the Company and that it was difficult to say that the Company had any existing interest in the disputed premises. The court further found that the real dispute between the parties was as to the nature of the agreements which was purely of a civil nature and the question whether the Company had become a tenant of the premises by virtue of the agreements or not, was entirely a question falling within the jurisdiction of the Civil Court. The Court therefore by its order and judgment dated 23-4-1984 allowed the appeal and set aside the order of the learned Magistrate and acquitted the accused:

13. It was this order of the learned Sessions Judge that is challenged in this appeal filed with the leave of the Court.

14. The main question in this case 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.

15. Section 630 of the Companies Act so far as relevant, under which the accused in the present case was charged provided as under:

16. Section 630: Penalty for wrongful withholding of Property:

(1) If any officer or employee of the company

(a) wrongfully obtains property of the Company

(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 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.

17. On the plain reading of the said section particularly where a complaint thereunder could be also at the instance of a creditor or a contributory of the Company, it appears that the Magistrate's jurisdiction thereunder would extend only to those cases where there was 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 particularly involving title to the property, which would be purely of a civil nature, the Magistrate cannot and should not venture to determine the same in exercise of his jurisdiction under the said section, which determination could only be of a summary nature. The courts have looked at with disfavour attempts made by the creditors to convert disputes purely of a civil nature which could be more appropriately decided by a civil court into a criminal dispute. Further as was pointed out by the Supreme Court in its decision in the case of Karamchand Ganga Pershad v. Union of India . 1971 Cr. L.J 1072., referred to by the learned Sessions Judge it was well established principle of law that the decisions of Civil Courts were binding on the criminal courts but the converse was not true. In my view therefore if such a bona fide dispute as regards the title to the property were to exist between the parties, where the accused were to claim that the property involved was not the property of the Company and the Company were to contend to the contrary, the said dispute would be purely of a civil nature and the Magistrate before exercising jurisdiction under the said Section 630 of the Companies Act will be required to allow the civil Court which was a proper forum for the purpose, to determine the said dispute as to the title to the property involved.

18. Then the question was whether in this case such a bona fide dispute existed between the parties as to the suit premises being the property of the company. The main dispute was as to the interpretation of the three agreements between the Landlord and the Company, which were styled as ‘Paying Guest’ agreements each being for the period of 9 months, permitting the Company to allow the accused by his name to use the same as a paying guest. The question was whether on the proper interpretation of the said agreements the Company was a licensee or a tenant in the premises. Admittedly after the expiry of the agreement dated 1-4-1975 on 31-12-1972 there was no fresh agreement between the landlord and the Company with the result that if the said earlier agreements were interpreted only as licence agreements then after the expiry of the last agreement the Company could have no interest in the premises but if the earlier agreements were interpreted as tenancy agreements, the consequences would be different. Further the accused has also based his claim as being a direct tenant of the landlord in the premises and the Company had no interest therein, on a letter dated 9-4-1973 Ex. (E) by the Company to the accused admittedly on the letter-head of the Company and under the signature of the Company's then director Mahendrakumar Gupta (since deceased) stating inter alia that it was mutually agreed that as the employer the Company will not have any right and claim on the said flat No. 6 in any manner whatsoever. The accused had supported his claim by further correspondence between the landlord and the Company wherein the Company had, in reply to the landlord's letter dated 28-10-1976 (Ex. 11) claiming compensation, stated that they were prepared to vacate the said flat. The Company has alleged that the said letter was forged as being subsequently got typed by the accused after stealing from the Company, a blank letter-head under the signature of the Company's director which some of the directors used to keep. The learned Magistrate accepting the said case of the Complainant Company, held that the said letter must not be genuine.

19. I am not much concerned at this stage with the said finding of the learned Magistrate excepting just mentioning that from the reasoning of the learned Magistrate, he appears to have arrived at the said finding by a process of reasoning which could not be accepted under the Criminal Law. However the afore-stated circumstances were sufficient to indicate that the dispute between the parties as to the title to the premises was bona fide viz., the Company itself claiming to be the tenant in the premises having allowed the accused to occupy the same as a term of his employment, while the accused claiming himself to be the tenant of the premises directly of the landlord. In my view, such a dispute between the parties was of a purely civil nature which could be best left to the Civil Court to determine. Furthermore in this case it appears to be more imperative for the learned Magistrate to have done so, as the suit filed by the accused in the Court of Small Causes at Bombay for declaration of his tenancy was already pending and an injunction obtained against eviction was in operation. On the facts and circumstances of this case therefore the learned Sessions Judge appears to be right in holding that such a dispute between the parties fell outside the ambit of the inquiry envisaged under Section 630 of the Companies Act and the same fell within the jurisdiction of the Civil Court.

20. The danger of leaving such disputed questions of purely civil nature, as regards the title to the premises as involved in this case, to be summarily dealt with by the Criminal Court, is well highlighted in this case from the propositions of civil law propounded by the learned Magistrate in his judgment which are foreign to civil law.

21. Firstly while dealing with the three agreements between the Company and the landlord, merely by the label given to the agreements as ‘Paying Guest Agreements’ and without going into the other clauses of the agreement and the intention of the parties thereto, the learned Magistrate came to the conclusion that they were leave and licence agreements and thereunder the Company was a licensee in the premises. This the Civil Court would not ordinarily do. Further strangely enough while holding that under the said agreements the Company was merely a licensee in the premises, by reason of the fact that the said agreements were not renewed and/or no agreement was entered into between the parties thereafter, the court held that the Company had become a tenant in the premises. It was difficult to see how in law such a result could ever come about. Further even after holding that the Company had become a tenant in the premises, the learned Magistrate continued to deal with the case on the basis that the Company was a licensee. But even then he came to the conclusion that as a licensee the Company had interest in the premises, and the Company's said property was being withheld by the accused to be liable under Section 630 of the Companies Act. This contention appears to have been based on the ignorance of the court about the difference between the lease and a licence. While it is well known that lease creates interest in the property, by the very definition of a licence under section 52 of the Indian Easements Act, 1882, the licence was a mere permission to occupy the premises and created no interest in the property.

22. The learned Counsel for the Company in support of his contention that, while acting under Section 630 of the Companies Act, the criminal courts could deal with the disputed questions of purely civil nature, has relied upon two decisions of this court viz., (1) in the case of Dr. Suresh Venkatrao Nerlekar v. Sharanghdhar Pandurang Nadkarni . 1982 1 Bom. C.R 867. and (2) in the case of Harkishan Lakhimal Gidwani v. Achyut Kashinath Wagh . 52 Company Cases 1.. The said decisions cannot be availed of by the Company as they do not deal with the point at issue before me in this case.

23. In the first decision in the case of Nerlekar (Supra) the Court was dealing with the question of stay of Criminal Proceedings by the Company against its employee under section 630 of the Company, pending the Civil Proceedings i.e suit, filed by the accused employee for declaration of his tenancy. Firstly in that case there was no dispute as to the property concerned being the property of the Company the Company being admittedly a tenant thereof. The only question was whether the employee was the tenant of the premises as claimed by him. Secondly in that case there was a written agreement between the Company and the employee showing that the premises were given by the Company who was admittedly a tenant thereof to the employee in the course of his employment with the Company, with an express condition that the employee was to return the same to the Company on his ceasing to be the Company's employee. The court in its decision negativing the employee's application for stay of the criminal proceedings had observed that in that case it was not necessary for the criminal court to determine the status of the employee at all. In this case the facts and the point at issue being different the said decision can be of no help.

24. In the 2nd decision of Gidwani v. Wagh (Supra), the main question was whether the person not an employee of the Company at the date of the complaint was covered under Section 630 of the Companies Act, the Court holding on the wording of the said Section that he was equally liable under the said section for withholding Company's property. The said decision equally has no application to the point at issue before me. Under the circumstances, the finding of the learned Sessions Judge was correct. The appeal would stand dismissed.

25. Declaratory Suit No. 1366 of 1983 filed by the accused against the Company in the Court of Small Causes at Bombay, claiming to be a tenant of the premises, is expedited. So also dispute before the Labour Court, being I.D.A No. 199 of 1980 by the accused is also expedited.

Order accordingly.