KANNANKANDI GOPAL KRISHNA NAIR Vs. PRAKASH CHUNDER JUNEJA

JUDGEMENT

(1.) THOUGH this appeal is just one more of the numerous litigations relating to the non-return of a company flat by an ex-employee, it raises certain interesting legal aspects of far-reaching consequences. This first question that arises is as to whether the employee whose wife has subsequently purchased the premises and, therefore, become the owner thereof can still be ordered to restore the possession to the company which continues to be the tenant. Since section 630 of the Companies Act, 1956 deals essentially with the question of wrongful withholding, the restoration of possession is a necessary relief which can and must be granted regardless of the change of ownership.

(2.) THE more important dimension, however, surrounds the anatomy of the offence. The accused resigned from the services of the company on 28-2-1977 and the resignation was accepted with effect from 1st March 1977 and the company called upon him to restore possession of the flat by 31-3-1977. The accused is in possession of the premises upto date, which works out to a period of a little over 16 years. The offence under section 630 of the Companies Act is a continuing offence and, consequently, it is an offence which recurs for the period during which it continues. Where an offence is repeated, in relation to premises, a Court will have to define the unit in relation to which the offence can be associated and the penalty awarded would, therefore, have to be in consonance with the number of times the offence is repeated. This is the only fair and logical approach which a Court ought to adopt in a situation such as this. It is pointed out that the accused has retained the possession of the premises with a degree of brazenness for as long as 16 years and deprived the company of the use thereof. It would be irrational, therefore, to award a fine of Rs. 1,000/- in such a case where the occupation has continued for 16 years and the punishment would, therefore, have to be in consonance with the number of times that the offence has been repeated. In keeping with that principle, therefore, since the premises are let out on a monthly basis as is the position in the present case, the Court would have to treat the offence as one recurring from month to month and the accused would, therefore, be liable for payment of fine in respect of the offence that recurs for every month starting from 1-4-1977 until the date of restoration of possession. As regards the incidental relief, even though it is submitted that the accused cannot be ordered to restore possession to the company since the flat now belongs to his wife, the argument is fallacious and as long as the tenancy rights are alive, the Company would be entitled to an order for restoration of possession, in default of which the accused would be liable to a sentence of two years rigorous imprisonment.

(3.) A curious position in law arises in the case of a continuing offence and it was traditionally contended that in such instances the continuation of the offence upto its cessation must be treated as constituting one punishable act. If this view were to be upheld, it would provide a premium to an offender who indulges in a legal wrong over a protracted period of time and is awarded a single punishment as prescribed by law. It is essential to adopt a more rational and fundamentally correct approach in such cases whereunder the offence must be treated as having been repeated from day to day or from month to month during its pendency and the unit of punishment prescribed for the offence be applied in accordance with that time frame. This concept alone will be in consonance with the view that the punishment must bear a direct nexus and proportion to the gravity of the offence and should not be inversely proportioned thereto.