- (1.) THIS application under Section 482 of the Code of Criminal Procedure has been filed for quashing the proceeding being complaint Case No. 362 of 1990 under Section 630 of the Companies Act, 1956 pending in the Court of the learned Chief Judicial Magistrate, South 24-Parganas at Alipore. The petitioner, Shir A. C. Bose (Ashoke Chandra Bose)was an officer of the Opposite Party No. 2,i. G. E. (India) Ltd. , Calcutta Branch (hereinafter referred to as the Company ). The Company filed a petition of complaint under Section 630 of the Companies Act, 1956 against the petitioner. The allegation of the Company against the petitioner in substance is that the Company hired the first floor flat at 5/2a, Old Ballygunge Road along with the servant's room at 5/ 1c, Old Ballygunge road under certain terms and conditions and the said flat was allotted to the petitioner herein who was an officer of the Company for his use as his residence during the continuance of his service under the Company and the petitioner occupied the same on 1 -1 -1975. It is also the allegation of the Company that the petitioner tendered resignation from service on 20-4-87 which was accepted by the Company but as the petitioner earnestly requested the Company to allow him to occupy the premises in his occupation for some time just to enable him to procure an alternative accommodation elsewhere, the Company considering his promise to vacate as early as possible allowed him to continue to occupy the same. It is further allegation of the Company that time and again the petitioner was requested orally as well as by letter to hand-over vacant possession of the flat to the Company but the petitioner with dishonest intention to continue his illegal stay took different pleas at different times and did not vacate the same in spite of his undertaking to deliver up possession positively by the end of december, 1991. There are also certain other allegations in the petition of complaint which however need not be mentioned here. Suffice it to say that the learned Magistrate took cognizance under Section 630 of the Companies Act, 1956.
(2.) ON the other hand, the plea of the petitioner is that initially he took tenancy of the ground floor of premises No. 5/2a, Old Ballygunge Road of which Shri A. K. Basu was the owner and he was also given possession of one garage and a servant's quarter as a part of that tenancy at the adjacent premises No. 5/1c which was also owned by said Shri Basu and that while he was occupying the said tenancy, the land-lord proposed to him to give better accommodation in the first floor in lieu of the tenancy in ground floor but wanted the tenancy to be taken in the name of the Company and accordingly on the request of the petitioner the Company accepted the proposal of the landlord and there was a lease agreement on 18-12-1974 between the. Company and the landlord and it was settled that the Company would pay Rs. 1000/- per month in respect of the said first floor to the landlord. The petitioner thereafter shifted from the ground floor to the first floor. It is the allegation of the petitioner that the Company used to realise the rent from him by deduction from his salary and used to pay the same to the landlord as rent. It is the further allegation of the petitioner that he resigned from the service of the company with effect from 1-6-87 and continued to occupy the said premises as a tenant. The company by a letter dated 22-6-87 intimated the petitioner that it had made an advance of Rs, 1000/- to the landlord and the same was recoverable on termination of lease agreement and as the petitioner would be occupying the said tenancy he should refund Rs. 1000/- to the company and accordingly the petitioner refunded the said amount to the company. The petitioner however used to pay rent to the Company and the company also used to accept the same and pay the rent to the landlord. It is the contention of the petitioner that the Company granted rent receipts in the name of the petitioner and by a letter dated 14-9-87 the Company informed the petitioner that it had no objection if the petitioner entered into an agreement with the landlord in respect of the said tenancy and be a tenant of the same directly under the landlord and in that event the petitioner should pay rent directly to the landlord and all responsibilities would lie with the petitioner. According to the petitioner the landlord was however not willing to record the tenancy in the name of the petitioner and wanted that the Company's name should remain recorded as tenant. In view of these facts and circumstances it is the contention of the petitioner that the criminal proceeding under Section 630 of the Companies Act, 1956 is not at all tenable inasmuch as while the company is a tenant under the landlord of the first degree, the petitioner is the sub-tenant under the Company in respect of the said tenancy which is independent of and unconnected with the status of the petitioner as an employee or for that matter as an ex-employee of the company.
(3.) THE factual position, therefore, is that the company hired the flat as a tenant under the landlord and allotted the same to the petitioner who was their employee at the relevant time to occupy the same for his residential purpose. Subsequently, the petitioner resigned from the service of the company on 1st june, 1987, but in spite of his such resignation he continued to occupy the flat and also paid the rent amount to the Company and the Company in turn paid the rent to the landlord. It also appears that the petitioner after his resignation from service of the Company tried to obtain direct tenancy of the flat from the landlord and the Company had no objection to that but the landlord did not agree to the proposal. It further appears that there was a written agreement on 12th January, 1989 between the Company and petitioner wherein it was stated that as the petitioner approached and/or requested the company to give him permission to stay at the said flat upto 31st December, 1989 the Company gave him permission to stay in the flat upto 31st December, 1989 on payment of a licence fee of Rs. 1500/- per month to the Company and the petitioner licensee would be bound to give peaceful vacant possession of the said flat to the Company on or before the 1st January, 1990. It was further stipulated in the said agreement that the licence granted thereby would stand revoked automatically and the Company would have the right of re-entry and to take possession of the flat on 1st January, 1990 without any further reference to the licensee and without recourse to any Court of law. It has been submitted by Mr. Bimal Dutta for the petitioner that the facts and circumstances obtaining in the case, including the fact that in spite of his resignation in June, 1987 the petitioner continued to occupy the flat all these years and paid rent to the Company would show that his present occupation of the flat is by no means connected with or related to his status as an employee or ex-employee of the Company. It is his argument that altogether a new relationship, namely, the relationship of landlord and tenant has come into existence between the company and the petitioner after his resignation from the service of the company and that being so the proceeding under Section 630 of the companies Act, 1956 was not tenable and therefore the said proceeding is liable to be quashed.;