TaxTMI 
TaxTMI 
1983 (4) TMI 195
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....of the complainant company on several occasions requested Ashok Rai to vacate the premises but he had been assuring to do so but has not vacated the premises till date and that instead of vacating the premises the respondent had started using part of the premises for commercial purpose. The company alleged that the respondent was wrongfully withholding the property and thereby had committed an offence under section 630 of the Companies Act. The complainant in support of its case examined Shri Prithvi Raj. Shri Prithvi Raj gave evidence that at the time of the employment the respondent was given free furnished accommodation at 22, Ferozeshah Road and the services of the respondent were terminated on 11th October, 1976, and that after the termination of the services in spite of repeated requests and reminders the respondent had not vacated the said premises. The complainant further stated that the respondent had been repeatedly assuring the complainant that he would vacate the said premises but he had failed to do the same. The respondent filed an application raising a few preliminary objections and one of them being that the complaint is barred by time. The Magistrate after....
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....rozeshah Road; (b)the company had terminated the services of the respondent on 11th October, 1976; and (c)in spite of repeated requests by the company to vacate the said premises the respondent continues to hold the property. The expression "wrongfully" used in clause (b ) of section 630(1) would mean that a person continues to remain in possession or hold the property otherwise than in due course of law. There can be no doubt that after the termination of the services on 11th October, 1976 (assuming that the respondent was given possession of the property 22, Ferozeshah Road, as a condition of his employment), the possession of the respondent had become wrongful unless it is shown or proved that he continued in possession under some legal sanction. The expression "continuing offence" has been defined in the following terms by a Division Bench of the Bombay High Court in State v. Bhiwandiaallah, AIR 1955 Bom. 161 (headnote): "The expression 'continuing offence' though not a very happy expression, has acquired a well-recognised meaning in criminal law. If an act committed by an accused person constitutes an offence and if that act continues from day to day, then from ....
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.... 11th October, 1976, the company had at the request of the respondent or otherwise permitted the respondent to further stay on for any particular period. The only allegation is that the respondent had been assuring to vacate the premises but he had not done so. As already observed, the expression "wrongful" would mean withholding without legal sanction. There is no allegation that after 1Kb. October, 1976, the company had permitted the respondent to stay on for any period of time in which case the stay, during the permitted period, could be considered with authority, otherwise the period of limitation would commence the day the withholding was wrongful. This date, according to the complaint, was 11th October, 1976, or soon thereafter. Thus we find that the limitation had commenced to run on or about 11th October, 1976. The complaint was filed in the court on 10th December, 1980. Sub-section (2) of section 630 provides for an imprisonment which may extend to two years. Section 468(1)(c) of the Code of Criminal Procedure provides that where the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years, the limitation shall be three years. ....
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....limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment". It is clear from a reading of the above provisions that the court under sub-section (2) could make an order directing the respondent to deliver the possession of the property or in default to undergo imprisonment for a term extending up to two years. In this view, the limitation would be three years and not six months as held by the Magistrate. The main reason given by the Magistrate for not extending the period of limitation is that the company had filed no application for condoning the delay. We find from a reading of section 473 of the Code of Criminal Procedure that there is no legal requirement for making an application. Section 473 gives a discretion to the court that in case it is satisfied, on the facts and in the circumstances of the case, that the delay has been properly explained or that it is necessary so to do in the interest of justice, it may take cognizance of an offence after the expiry of the period of limitation. The only explanation given i....