- (1.) What falls for consideration in this appeal by special leave is whether the High court has erred in law in setting aside the judgments of the courts below in a matter arising under S. 630 of the Companies Act in exercise of its powers under S. 482, Criminal Procedure Code.
(2.) The facts are as under: Messrs Jenson and Nicholson (India) Ltd. (appellant company) , has secured a flat in Bombay (No. 84, Mehr-Dad, Cuffe Parade) belonging to one Mehdi Mandil, on leave and licence basis for the residential occupation of the flat by its officers/employees. The leave and licence agreement was entered into on behalf of the company by respondent 1 who was then the Divisional Sales Manager of the company at Bombay, the registered office of the company being at Calcutta. It is common ground respondent 1 acted on behalf of the company under a power of attorney executed in his favour by the company. The leave and licence was for an initial period of II months but subject to renewal for a total period of 66 montfis. The agreement provided for payment of advance compensation of Rs-16,500. 00 for 11 months and a monthly compensation of Rs-1,500. 00 and a deposit of Rs. 3,50,000. 00 free 516 of interest to be returned at the end of the licence period. The company paid the deposit and the advance compensation and was paying the monthly compensation of Rs. l,500. 00 thereafter. On taking possession of the flat on November 1, 1980, the company allowed respondent 1 to occupy it as an employee of the company. More than three years later, i. e. on 23/03/1984, respondent 1 filed a suit (Suit No. 1360 of 1984 in the court of Small Causes, Bombay against the company and the owner of the flat for a declaration that he is the actual licensee of the flat and for permanent injunction to restrain the defendants from interfering with his possession of the flat. Respondent 1 claimed to be the licensee of the flat on the basis of two letters dated 25/01/1984 and 1/02/1984 written to him by a junior employee of the company, viz. one Mr. Jain who was the Office Manager of the company at Bombay and working under respondent 1. In those letters Mr. Jain has made it appear that respondent 1 was the tenant of the flat. Besides the reliefs of declaration and injunction, certain other reliefs such as fixation of standard rent etc. were also asked for in the suit against the owner of the flat. Three days after the filing of the suit i. e. on 26/03/1984, respondent 1 tendered a letter of resignation to the company and his resignation was accepted by the management on 27/03/1984. In accordance with his claim to be the licensee of the flat, respondent 1 offered to reimburse the company the deposit amount of Rs. 3,50,000. 00 but the company declined the offer and asserted that it was the licensee of the flat and not respondent 1.
(3.) As respondent 1 failed to vacate the flat after resigning his post, the company filed a complaint against him under S. 630 of the Companies Act in the court of the Additional Chief Metropolitan Magistrate, Bombay. The complaint was filed on behalf of the company by its power of attorney Mr. Atul Mathur who had been appointed as Divisional Sales Manager, Bombay in place of respondent 1 after his resignation. The Additional Chief Metropolitan Magistrate took the complaint on file and after trial found respondent 1 guilty under S. 630 of the Companies Act and sentenced him to pay a fine of Rs. 1,000. 00 and also directed him to deliver possession of the flat to the company on or before 15/06/1987 in default to suffer S. I. for three months. Against the said judgment, respondent 1 preferred an appeal to the Sessions court but by judgment dated 22/10/1986, the Additional Sessions Judge, Greater Bombay dismissed the appeal. The trial Magistrate as well as the appellate court concurrently held that the company was the licensee of the flat, that respondent 1 had acted only as the power of attorney of the company in entering into the agreement, that his occupation of the flat was only as an employee of the company and consequently respondent 1 was in unlawful occupation of the flat after he ceased to be an employee of the company. Respondent 1 was therefore directed to deliver possession of the flat to the company.;