SHUBH SHANTI SERVICES LTD Vs. MANJULA S AGERWALLA

JUDGEMENT

(1.) THIS appeal arises from the Judgement and Order dated 30. 10. 99 passed by the Additional Chief metropolitan Magistrate, 40th Court, Girgaum, Mumbai, in case No. 4/s/1995 acquitting the accused-Respondents of the offence punishable under Section 630 of the companies Act.

(2.) THE said order is impugned interalia on the grounds that the learned Magistrate has given an erroneous finding that since the property is in custody of Court Receiver, he could not pass the order of restoration of the property to the complainant. It is contended that the Magistrate had erred in holding that since the property is in the custody of the Court receiver, the rights of the parties which are civil rights will be decided by the Competent Civil Court in a suit filed by both the parties. Another ground of challenge is that the Magistrate has wrongly concluded that the complainant has failed to prove that the property in question was wrongly held by the accused despite the Appellants having proved the same by the evidence of prosecution witnesses no. 1 and 2 as well as various Exhibits which have gone unchallenged. Yet another ground of challenge is that Magistrate has wrongly decided that the Respondents-accused were permitted to continue in occupation of the Said flat by mr. Goenka, a Notexecutive Chairman of the Board of directors of the Appellants. It is submitted that the case of the accused has been demolished by the evidence of PW 2 and letters written on behalf of the Appellants viz. Exhibits P 11 and P-12 which were sent after discussion with Mr. Pandya, Managing Director, Mr. Goenka and other Directors. The case of the Respondents is further demolished by Exhibit-16, the unanimous board resolution of the Appellants, at which Mr. Goenka was also present authorising PW 2 to take necessary steps for recovery of the flat wrongly withheld by respondents.

(3.) BRIEFLY, the case of the complainant is that late S. C. Agerwalla was an officer of complainant, viz. Herdallia Chemicals Limited. That by a Scheme of arrangements approved by this Court, the non-chemical business of the company was demerged and vested in Shubh shanti Company Limited. This was after the impugned order was passed and present appeal filed. Hence, M/s. Shubh Shanti Services Limited came to be substituted in place of M/s, Herdallia Chemicals Limited as Appellants during the pendency of the appeal by order of this Court dated 25. 11. 2002 (Coram : V. K. Tahilramani, J. ). Mr. S. C. Agerwalla was an employee of the Company from april 1971 till his death in November 1992 and worked in different capacities in the said company. He was promoted as the Managing Director of the company for a period of five years with effect from 15. 6. 88 vide resolution of Board of Directors dated 14. 6. 1988. Flat no. 35 in "sonmarg" Building at 67-B, Jagmohandas Marg, mumbai, was purchased in the year 1973. The same was allotted to Mr. S. C. Agerwalla on 19. 3. 73. The flat has an area 2400 sq. ft. and the outgoings in respect of the flat were paid by the company. Since allotment, the said Agerwalla was residing in the said flat with his family members in the Sonmarg Building.