1995 (11) TMI 331 - HC - Companies Law

Issues Involved:
1. Whether the order of framing charge by the trial court is sustainable.
2. Whether Mr. Dighe committed any offence in signing the vakalatnama and is liable for action.

Issue-wise Detailed Analysis:

Issue 1: Whether the order of framing charge by the trial court is sustainable.

Background:
The petitioner, a former General Manager of the respondent company, was accused of not vacating a company-provided flat after resigning. The company filed a complaint under Section 630 of the Companies Act, 1956, and Section 408 of the Indian Penal Code, 1860. The trial court found sufficient material to frame charges against the petitioner.

Arguments:
- Petitioner: Argued that the complainant company no longer exists due to amalgamation with another company, and thus, the prosecution cannot continue. Also argued that the company sold the flat, so it cannot continue the prosecution.
- Respondent: Argued that the new company (Forbes Gokak Ltd.) will continue the prosecution and will file an appropriate application. Claimed the framing of charges does not suffer from any illegality.

Judgment:
- The original complainant company (Forbes Forbes Campbell & Co. Ltd.) amalgamated with Gokak Patel Vokart Ltd., forming Forbes Gokak Ltd. The new company alone can continue the prosecution as per Clause 6 of the amalgamation scheme and Section 394 of the Companies Act.
- The court can invoke Section 302 of the Code of Criminal Procedure to allow the new company to continue the prosecution.
- The subsequent sale of the flat by the complainant does not affect the maintainability of the prosecution. The relevant date is the date of the offence, not the date of framing charges.
- The court held that the original complainant company, being non-existent, cannot continue the prosecution. However, the transferee company can file an application under Section 302 of the Code of Criminal Procedure to continue the prosecution.
- The court dismissed the argument that the complainant must be the owner of the flat on the date of framing charges, emphasizing that the offence is determined by the date of the complaint.
- The court confirmed that Mr. Dighe, as an officer of the new company, has the right to give evidence, with or without a power of attorney.

Conclusion:
The petition challenging the framing of charges was dismissed. The new company was permitted to file an application to continue the prosecution within six weeks. The trial court was directed to expedite the trial.

Issue 2: Whether Mr. Dighe committed any offence in signing the vakalatnama and is liable for action.

Background:
The petitioner alleged that Mr. Dighe committed forgery by signing a fabricated vakalatnama without mentioning his designation or the company's name.

Arguments:
- Petitioner: Claimed that Mr. Dighe's vakalatnama was improper and constituted forgery.
- Respondent: Argued that Mr. Dighe had the right to file the vakalatnama as he was representing the company.

Judgment:
- The court found the application to be wholly misconceived. If the vakalatnama was improperly signed, it could be rejected by the court, but it did not constitute forgery.
- Mr. Dighe, being an officer of the new company, had the right to file the vakalatnama. Any irregularity could be cured under Section 465 of the Code of Criminal Procedure.
- The court dismissed the criminal application alleging forgery against Mr. Dighe.

Conclusion:
The criminal application alleging forgery against Mr. Dighe was dismissed. The court confirmed that Mr. Dighe had not committed any offence in signing the vakalatnama.

Final Order:
Both Criminal Revision Application No. 319 of 1994 and Criminal Application No. 2103 of 1995 were dismissed. The order of framing charges by the learned Magistrate was confirmed, and the trial court was directed to expedite the trial and dispose of it within four months.

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