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TMI Blog1991 (9) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... nt alleged the commission of offences under sections 120B, 409 read with section 120B of the Indian Penal Code, 1860, and under section 630 of the Companies Act, 1956. It was primarily alleged in that complaint that accused No. 1, Baburam Lila, who is a director of the Binod Mills Co. Ltd., is alleged to have surrendered to the second accused, who is styled as the landlord of the building, flat No. 10 on the third floor of "Ram Mahal" Building, situated at Churchgate in South Bombay. The company was the tenant of this flat and it appears that the flat was being used as a company guest house. There is no dispute about the fact that the company was paying the rent in respect of this flat to the second accused till about June, 1984. It appears that the company addressed a letter dated January 24, 1985, to the second accused pointing out that they have not received the monthly rent bills for the period July, 1984, to December, 1984. According to averments in paragraph 12 of the complaint, accused No. 2 sent a reply that "the aforesaid flat was surrendered to accused No. 2 by accused No. 1 and that possession of the aforesaid flat was given by accused No. 2 to one Smt. Saraswati Damani, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judicial process of a criminal court and that this is a fit case in which the proceedings be quashed as against him. Mr. K.M. Desai, learned counsel appearing on behalf of the petitioner, has taken me in detail through the averments in the complaint and the annexures thereto which apparently was all the material that was placed before the learned Magistrate. Mr. Desai has submitted that no case whatsoever has been made out against the present petitioner either under section 409 of the Indian Penal Code or under section 630 of the Companies Act. I shall deal with the first aspect of the matter presently, but it needs to be emphasised that the order of the learned Magistrate issuing process is rather vague in so far as it is not very clear as to whether or not he has issued process under the provisions of section 630 of the Companies Act against the present petitioner. A plain reading of the provisions of this section will indicate that it is the elementary requirement of law that the person against whom action is contemplated must be an employee or a person connected with the company as prescribed by that section and that there can be no application of section 6,30 of the Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese observations are for purposes of justifying the reasons for the decision of this court in the present petition. There has been considerable debate with regard to the power of attorney which, admittedly, the company appears to have issued to its director who is original accused No. 1. Mr. Desai, advanced an argument that apart from the letter given to the landlord by the first accused that the present petitioner was justified in having accepted the surrender of the flat from him because of the additional factor, namely, the existence of that power of attorney. Among other things, Mr. Desai submitted that admittedly a civil suit has been filed in the High Court which was subsequently transferred to the court of competent jurisdiction, namely, the Court of Small Causes which encompasses the total gamut of the complaint in relation to the surrender of the flat in question and to which suit even the present occupant of the flat, Mrs. Damani is made a party. Mr. Desai submits that the civil proceedings will effectively take care of the entire dispute because that court will go into the validity or otherwise of the surrender and, furthermore, that as far as the complainant mills are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is seriously disputed under the umbrella of such a document, then that document cannot be used as a justification. On the bare averments made out in the complaint there is a clear cut admission about the second accused that the flat was surrendered to him. Under these circumstances, the learned Magistrate was justified in issuing process also against the present petitioner on the basis of the material placed before him because it was contended that the present petitioner had acted in conspiracy with the first accused. It needs to be clarified here that it is certainly open to the present petitioner to establish his innocence before the forum of the trial court, and to this extent the observations made above are confined to the present proceedings alone. Mr. Desai has placed strong reliance on the judgment of the Supreme Court in the case of Madhavrao v . Sambhajirao, AIR 1988 SC 709. The Supreme Court had in that case considered a decision relating to a criminal proceeding instituted in relation to a dispute concerning the "Shrikrishna Madhava Trust". On the facts of that case, the Supreme Court observed that there would be certain situations where it would predominantly be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... need to mention that there are no allegations to this effect in the complaint and, therefore, I refuse to take cognizance of such wild statements. What, however, needs to be taken note of is the fact that it would be too much to expect this court to believe that the surrender of the flat was as innocent a transaction as has been made out to be. An investigation by the criminal court into the circumstances of this surrender is, therefore, to my mind, very essential and is also in the public interest. To this extent, I will categorise this case as being one of those categories of cases where the public interest requires that the forum before which the complaint is presented needs in the public interest to embark upon an enquiry of the suspicious circumstances in which an important transaction has taken place and that such an enquiry should not be stifled by having resort to the provisions of section 484 of the Code of Criminal Procedure. Perhaps this is an angle which has not hitherto come up in many cases, but since it has come up in the present instance, these observations are necessary. In this view of the matter, no interference is justified at this stage. The criminal writ pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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