# Amar Dayal Singh v. State of U.P. & Anr

- **Citation:** (2022) 9 ILRA 385
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-20
- **Case number:** Criminal Misc. Application U/S 482 No. 22092 of 2021
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amar-dayal-singh-v-state-of-u-p-anr-49033
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Procedure,
1973-Section
482
-
Companies
Act,
2013-Section
452Quashing of summoning order-Applicant
was appointed as an employee of M/s
Hindalco Industries Ltd., later he was
dismissed from service-After dismissal,
he had to leave company's quarter
allotted to him-After several reminders
and final notice, a complaint was filedFunds for which the applicant was
entitled, was already paid to him with
interest, but the applicant was illegally
withholding the same-Hence, the Court
below rightly summoned the applicant
u/s
452
of
the
Companies
Act,
2013.(Para 1 to 20)

The application is rejected. (E-6)
List of Cases cited:

## Text

9 All. Amar Dayal Singh Vs. State of U.P. & Anr.
385
cannot be used as an afterthought to fill the
gaps.

29. Considering the materials brought
on record and keeping the principles laid
down by the Hon'ble Supreme Court for
exercise of power under section 311
Cr.P.C., this Court is of the opinion that
observations and findings recorded by the
trial Court in rejecting the application
under Section 311 Cr.P.C. of the applicant
under the facts and circumstances of the
case are fully sustainable. The trial Court
has committed no illegality or infirmity in
the order impugned by rejecting the
application of the applicant. There appears
no abuse of process of the Court also.
There is no evidence on record to satisfy
this Court that trial would be seriously
prejudiced if the said witnesses is not
recalled for re-examination or further
examination.

30. In view of the above, the
application of the applicant having no merit
deserves to be rejected. In the result, the
application is rejected.

31. The office is directed to
communicate this order to the court
concerned to proceed with the case in
accordance with law.

32. The Court would like to
appreciate the hard work put in by Mr. Hari
Harsh Gaur, Law Clerk, who has drawn
attention to detail and the same shows in
his work of providing legal assistance in
this matter.
----------
(2022) 9 ILRA 385
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.07.2022

BEFORE
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Criminal Misc. Application U/S 482 No. 22092 of
2021

Amar Dayal Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Hari Nath Chaubey

Counsel for the Opposite Parties:
G.A., Sri Anil Kumar Ray

A. Criminal Law - Code of Criminal
Procedure,
1973-Section
482
-
Companies
Act,
2013-Section
452Quashing of summoning order-Applicant
was appointed as an employee of M/s
Hindalco Industries Ltd., later he was
dismissed from service-After dismissal,
he had to leave company's quarter
allotted to him-After several reminders
and final notice, a complaint was filedFunds for which the applicant was
entitled, was already paid to him with
interest, but the applicant was illegally
withholding the same-Hence, the Court
below rightly summoned the applicant
u/s
452
of
the
Companies
Act,
2013.(Para 1 to 20)

The application is rejected. (E-6)
List of Cases cited:

1. Beer Bala Gupta Vs 15th Addl. Session Judge,
Meerut (2002) 0 Supreme(All) 307

2. Jagdish Chandra Nijhawan Vs S.K. Saraf
(1999) 1 SCC 119

3. Gopika Chandrabhushan Saran &anr. Vs M/s
XLO India Ltd. & anr.. (2009) 3 SCC 342,

4. St. of Har. & ors. Vs Bhajan Lal & ors. (1992)
Suppl. 1 SCC 335

5. Ramveer Upadhyay & anr.. Vs St. of U.P. &
anr.. (2022) LiveLaw SC 396
386 INDIAN LAW REPORTS ALLAHABAD SERIES
6. R.P. Kapur Vs St. of Punj. (1960) AIR SC 866

7. St. of Har. Vs Bhajan Lal (1992) SCC Cr. 426

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Sri Hari Nath Chaubey,
learned counsel for the applicant, Sri Anil
Kumar Ray, learned counsel for the
opposite party no.2, Sri Mayank Awasthi,
learned AGA for the State and perused the
records.

2. The present 482 Cr.P.C. application
has been filed to quash the entire
proceedings of Complaint Case no. 859 of
2020 (Hindalco Industries Ltd. Vs. Amar
Dayal Singh), under Section 452 of the
Companies Act, 2013 (Erstwhile Section
630 of Companies Act, 1956), Police
Station-Pipri, District-Sonebhadra, pending
before the Court of Special Chief Judicial
Magistrate, Allahabad

3. The brief facts of the case, which
are required to be stated as alleged in the
application are that:-

(i) The applicant was appointed
as an employee of M/s. Hindalco Industries
Limited (hereinafter called as "Company"),
which is represented by Mr. Ashok Kumar
Singh, Deputy Officer, who was duly
authorized representative of the company.

(ii) The appointment letter was
issued to the applicant on 24.11.1994 and
he joined the services of company.
Thereafter, the applicant was allotted
company's quarter No.PB-318 by the
company in its colony vide License of
Quarter dated 11.09.2006 subject to certain
conditions mentioned therein. One of the
conditions as mentioned in the license is
that the license shall stand automatically
revoked on termination of service, for any
reason whatsoever, retirement, resignation,
transfer etc. Subsequently, the applicant
was dismissed from services of the
company vide letter dated 07.03.2011.

(iii) Accordingly, the applicant
was no more an employee of the company
with effect from 07.03.2011, i.e. the date of
his dismissal from service, therefore, he
had to leave the company's quarter as
allotted to him. When the quarter was not
vacated by the applicant, notice dated
11.03.2011 was given to the applicant to
vacate the aforesaid quarter of the company
by 21.03.2011 and handover the possession
of the same to the company.

(iv) After several reminders and
final notice, when the company's quarter
was not vacated, a complaint was filed on
20.10.2020 by opposite party no.2. On the
aforesaid complaint, the concerned court
below has summoned the applicant under
Section 452 of the Companies Act, 2013
(erstwhile Section 630 of the Companies
Act, 1956).

4. Submissions of the learned counsel
for the applicant are that:-

(i)
While
summoning
the
applicant, the court concerned has formed
its opinion that the applicant is in wrongful
possession
of
the
company's
quarter
without realizing the fact that the company
has not paid the entire gratuity amount to
the applicant for which he is entitled. No
offence
under
Section
452
of
the
Companies Act, 2013 is made out against
the applicant.

(ii) For delayed payment of funds
for which the applicant is entitled, he has
already filed a C.P. No.19 of 2014 before
the Deputy Labour Commissioner, Pipri,
Sonebhadra, which is still pending.
9 All. Amar Dayal Singh Vs. State of U.P. & Anr.
387

(iii) The applicant has also filed
an
application
dated
25.10.2018
for
payment of interest on delayed payment of
gratuity
as
the
Assistant
Labour
Commissioner,
Pipri,
Sonebhadra
has
passed the order dated 30.06.2018 directing
for payment of 10% interest on gratuity
amount of Rs. 2,10,610/-, which was paid
to the applicant on 17.01.2018. The
aforesaid application dated 25.10.2018
filed by the applicant is still pending.

(iv) As per the relevant section, the
applicant cannot be said to be wrongfully
withholding the company's quarter. As the
interest on gratuity amount has not been paid
to the applicant, hence the summoning order
is not justified in the eyes of law and the
entire proceedings are bad in the eye of law.
In support of his contention, he has relied
upon the judgment of this Court in the case of
Beer Bala Gupta vs. 15th Additional Session
Judge,
Meerut
reported
in
2002
0
Supreme(All) 307 wherein it has been held
that company did not discharge its obligation,
inasmuch as it did not pay the gratuity
amount to the petitioner and in such view of
the matter, the petitioner cannot be said to
have
wrongfully
retained
the
quarter
belonging to the company and, therefore, the
applicant is not liable for punishment under
Section 452 of the Companies Act, 2013
(erstwhile Section 630 of the Companies Act,
1956).

(v) He has also placed reliance
upon the judgment of Jagdish Chandra
Nijhawan vs. S.K. Saraf reported in (1999) 1
SCC 119

(vi) Therefore, the prosecution
against the applicant is bad in law and the
entire proceedings of the aforesaid complaint
case is liable to be quashed by this Court.

5. On the other hand, Mr. Mayank
Awasthi, learned AGA as well as Mr. Anil
Kumar Ray, learned counsel for the
opposite party no.2 have opposed the
submission advanced by the learned
counsel for the applicant by submitting that
as per the license of quarter wherein one of
the conditions of license mentioned is that
the license
shall
stand automatically
revoked on termination of service, the
applicant was not entitled to retain the
quarter after being dismissed from service
on 07.03.2011, therefore, after 07.03.2011,
the applicant, who had retained the
company's
quarter
was
illegally
withholding the same, hence he was liable
to be punished under the relevant section of
Company Act.

6. So far as the submission made by
the learned counsel for the applicant
regarding payment of the funds for which
the applicant was entitled, learned counsel
for the opposite party no.2 has stated in his
counter affidavit that the provident fund of
Rs. 1,17,896/- and gratuity of Rs.2,10,610/-
has already been paid through Cheque
No.668080 dated 27.12.2017 and interest
on gratuity of Rs.1,42,806/- has already
been paid to the applicant through Cheque
No.015289 dated 18.08.2018. Therefore, as
per the Section 452 of the Companies Act,
2013, the applicant is liable to be punished
for withholding the company's quarter.

7. Learned AGA as well as learned
counsel for the opposite party no.2,
therefore, submits that the application filed
by the applicant for payment of interest on
delayed payment, is nothing but a via
media to show that certain payments have
not been paid to the applicant in order to
wrongly withhold the company's quarter
allotted to him.

8. Learned counsel for the opposite
party no.2 further submits that the applicant
is not entitled for any relief, as, once the
388 INDIAN LAW REPORTS ALLAHABAD SERIES
right of the employee to retain the
possession of property on account of
dismissal from services has extinguished,
then he is under an obligation to return the
property back to the company. In support
of his contention, he has relied upon the
judgment of Apex Court in the case of
Gopika
Chandrabhushan
Saran
and
Another vs. M/s. XLO India Ltd. and
Another reported in (2009) 3 SCC 342,
wherein the Apex Court has held as under:-

"The capacity, right to possession
and the duration of occupation are all
features which are integrally blended with
the employment. Once the right of the
employee or the officer to retain the
possession of the property, either on
account
of
termination
of
services,
retirement, resignation or death, gets
extinguished, they (persons in occupation)
are under an obligation to return the
property back to the company and on their
failure to do so, they render themselves
liable to be dealt with under Section 630 of
the Act for retrieval of the possession of the
property."

6. On the cumulative strength of the
aforesaid, learned AGA as well as learned
counsel for the opposite party no.2 submits
that available material is enough to
summon accused person and considering
material on record, it can not be said that
no evidence is made out against the
applicant, therefore, the proceedings of the
aforesaid case cannot be quashed, as such
no interference is required in the matter by
this Court at this stage.

10. I have considered the submissions
advanced by the learned counsel for the
parties as well as have gone through the
records of the present application along
with the impugned order.

11. Before proceeding to deal with the
submissions made by the learned counsel
for the parties, it will be appropriate to
place the extract of Section 452 of the
Companies Act, 2013, which is as follows:-

"Section 452: Punishment for
wrongful withholding of property.

(1) If any officer or employee of a
company--

(a) wrongfully obtains possession
of any property, including cash of the
company; or

(b) having any such property
including
cash
in
his
possession,
wrongfully withholds it or knowingly
applies it for the purposes other than those
expressed or directed in the articles and
authorised by this Act, he shall, on the
complaint of the company or of any
member or creditor or contributory thereof,
be punishable with fine which shall not be
less than one lakh rupees but which may
extend to five lakh rupees.

(2) The Court trying an offence
under sub-section (1) may also order such
officer or employee to deliver up or refund,
within a time to be fixed by it, any such
property or cash wrongfully obtained or
wrongfully
withheld
or
knowingly
misapplied, the benefits that have been
derived from such property or cash or in
default, to undergo imprisonment for a
term which may extend to two years.
{Provided that the imprisonment of such
officer or employee, as the case may be,
shall
not
be
ordered
for
wrongful
possession or withholding of a dwelling
unit, if the court is satisfied that the
company has not paid to that officer or
employee, as the case may be, any amount
relating to--(a) provident fund, pension
fund, gratuity fund or any other fund for the
welfare of its officers or employees,
maintained by the company;
9 All. Amar Dayal Singh Vs. State of U.P. & Anr.
389

(b) compensation or liability for
compensation
under
the
Workmen's
Compensation Act, 1923 in respect of death
or disablement.}

12. Proviso to the aforesaid section
provides that the punishment of the officer
or employee, as the case may be, cannot be
ordered
for
wrongful
possession
or
withholding of the company's quarter, the
company has not paid to that officer or
employee the provident fund, pension fund,
gratuity fund or any other funds for which
the officer or employee is entitled.

13. From the records, it is clear that
the complaint contains the allegation that
the company's quarter allotted to the
applicant was not vacated in spite of
repeated notices to him, after the applicant
was dismissed from service on 07.03.2011
and the funds for which the applicant was
entitled, was already paid to him with
interest, therefore, as per the provisions of
Section 452 of the Company's Act, the
applicant is liable to be punished for
withholding the company's quarter.

14. In exercise of power under
Section 482 of the Cr.P.C., the Court does
not examine the correctness of the
allegations in a complaint except in
exceptionally rare cases where it is patently
clear that the allegations are frivolous or do
not disclose any offence. The Court can not
look into the fact as to whether the
allegations in the complaint are true or
untrue and the same has to be decided by
the trial court, thus no interference is
required in such cases as the present one.
Even though, the inherent power of the
High Court under Section 482 Cr.P.C., to
interfere with criminal proceedings is wide,
such power has to be exercised with
circumspection,
in
exceptional
cases.
Jurisdiction under Section 482 of the
Cr.P.C. is not to be exercised for the
asking.

15. The aforesaid has been held by the
Apex Court in the case of State of Haryana
and Ors. vs. Bhajan Lal and Ors. reported
in 1992 Suppl.(1) SCC 335. The relevant
paragraph of the aforesaid judgment reads
as under:-

"103. We also give a note of
caution to the effect that the power of
quashing a criminal proceeding should be
exercised
very
sparingly
and
with
circumspection and that too in the rarest of
rare cases; that the court will not be
justified in embarking upon an enquiry as
to the reliability or genuineness or
otherwise of the allegations made in the
FIR or the complaint and that the
extraordinary or inherent powers do not
confer an arbitrary jurisdiction on the
court to act according to its whim or
caprice."

16. The following observations has
also been made by the Apex Court in the
latest judgment of Ramveer Upadhyay &
another vs. State of U.P. & another
reported in 2022 Livelaw (SC) 396.
Paragraph no.39 of the aforesaid judgment
reads as under:-

"39. In our considered opinion
criminal proceedings cannot be nipped in
the bud by exercise of jurisdiction under
Section 482 of the Cr.P.C. only because the
complaint has been lodged by a political
rival. It is possible that a false complaint
may have been lodged at the behest of a
political
opponent.
However,
such
possibility would not justify interference
under Section 482 of the Cr.P.C. to quash
the criminal proceedings. As observed
390 INDIAN LAW REPORTS ALLAHABAD SERIES
above, the possibility of retaliation on the
part of the petitioners by the acts alleged,
after closure of the earlier criminal case
cannot be ruled out. The allegations in the
complaint constitute offence under the
Attrocities Act. Whether the allegations are
true or untrue, would have to be decided in
the trial. In exercise of power under
Section 482 of the Cr.P.C., the Court does
not examine the correctness of the
allegations in a complaint except in
exceptionally rare cases where it is
patently clear that the allegations are
frivolous
or
do
not
disclose
any
offence............."

17. In fact while exercising the
inherent jurisdiction under Section 482
Cr.P.C. or while wielding the powers under
Section 226 of the Constitution of India the
quashing of the complaint can be done only
if it does not disclose any offence or if
there is any legal bar which prohibits the
proceedings on its basis. The Apex Court
decisions in R.P. Kapur Vs. State of
Punjab reported in AIR 1960 SC 866 and
State of Haryana Vs. Bhajan Lal reported
in 1992 SCC(Cr.) 426 make the position of
law in this regard clear recognizing certain
categories by way of illustration which may
justify the quashing of a complaint or
charge sheet.

18. In view of the above, this Court
finds that the applicant was dismissed from
services on 07.03.2011, thus he is under an
obligation to return back the company's
quarter, but the applicant was illegally
withholding the same, hence he is liable to
be punished under the relevant section. The
payment for which he was entitled has
already been paid, therefore, the case laws
referred by learned counsel for the
applicant is not applicable in the present
case and the court concerned has rightly
summoned the applicant under Section 452
of the Companies Act, 2013.

19. Considering the facts and
circumstances of the case, this Court finds
that the present matter does not fall in any
of the categories recognized by the Apex
Court, which might justify interference by
this
Court
in
order
to
quash
the
proceedings. Therefore, the prayer for
quashing
the
entire
proceedings
of
aforesaid complaint case is refused as I do
not see any abuse of the court's process
either.

20. The present application lacks
merit and is, accordingly, rejected.
----------
(2022) 9 ILRA 390
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.08.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Misc. Bail Application No. 4988 of 2022

Pushpa Devi ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Suresh Kumar Yadav

Counsel for the Opposite Party:
G.A.

(A) Criminal Law - Bail - Indian Penal
Code, 1860 - Sections 302, 120-B - The
Code of criminal procedure, 1973 - Section
319 - Power to proceed against other
persons appearing to be guilty of offence -
Constitution of India - Article 21 - Power
under Section 319 CrPC is a discretionary
and an extraordinary power - to be
exercised sparingly and only in those