2012 (12) TMI 1212 - HC - Companies Law

Summary

Issues Involved:
1. Quashing of the second FIR.
2. Liability of the petitioner post-resignation.
3. Abuse of process of law.
4. Legal precedents on multiple FIRs and delayed complaints.

Summary:

Issue 1: Quashing of the second FIR
The petitioner, a Chartered Accountant and Professional Non-Executive Director of Nisu Fincap Ltd., filed a petition u/s.482 of the Criminal Procedure Code for quashing the complaint lodged by the Registrar of Companies, Gujarat, on 28.3.2003 u/ss.403, 406, 415, 418, 420, and 422 of the Indian Penal Code. The court noted that the FIR in question (C.R.No.I - 861 of 2003) was filed on 28.8.2003, whereas a prior criminal case (No.136 of 2002) was already pending before the Metropolitan Magistrate Court, Ahmedabad, for the same irregularities. The court held that there cannot be two complaints for the same offences, and thus, the second FIR amounts to an abuse of process of law and needs to be quashed.

Issue 2: Liability of the petitioner post-resignation
The petitioner resigned as Director on 1.4.1997, which was supported by Form No.32 and an affidavit. The court found no reason to disbelieve the resignation date, as the respondents did not contest it. The allegations in the FIR pertained to the period from 1999 onwards, and since the petitioner had resigned in 1997, he could not be held liable for any activities or offences committed by the company after his resignation.

Issue 3: Abuse of process of law
The court observed that the complainant/respondent No.2 had willfully hidden and failed to disclose the petitioner's reply to the show-cause notice. The impugned FIR was lodged after six years, indicating a deliberate delay. The court emphasized that the proceedings should not be used to harass the petitioner and should not degenerate into a weapon of harassment and persecution.

Issue 4: Legal precedents on multiple FIRs and delayed complaints
The petitioner relied on several legal precedents, including T.T. Antony Vs. State of Kerala, which confirms that a second FIR for the same set of allegations is an abuse of process of law. The court also referred to the case of Sagar Suri and Anr. Vs. State of U.P. & Ors., which highlights the duty of criminal courts to exercise caution in issuing processes, especially when matters are civil in nature. The court reiterated that there cannot be a second FIR for the same offences and that complaints filed after several years cannot be entertained. The court also noted that the primary requirement for an offence of cheating u/s.415 punishable u/s.420 of the IPC is dishonest/fraudulent intention at the time of inducement.

Conclusion:
The court allowed the petition, quashing the FIR (C.R.No.I-861 of 2003) against the petitioner. It clarified that the quashing is specific to the petitioner, and the complainant/respondent No.2 retains the right to take action against the company or its other Directors as per law. Rule is made absolute accordingly.