9911796707
TMI Blog1997 (1) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... the DIL thought of floating a subsidiary company Nepal for manufacture of instant powder, strained, dry baby food products etc. based on vegetables and fruits. It accordingly ap-proached the Central Government for requisite permission as per provi-sions contained in section 27(3) of the Foreign Exchange Regulation Act, 1973 (FERA). The Central Government permitted the DIL to set up its subsidiary company in Nepal in the name of Dalmia Industries (Nepal) Ltd. (Nepal Company) with Equity of Rs. 5.39 crores comprising of investment of Rs. 0.80 crores in Nepal currency and of Rs. 4.59 crores in import of plant and machinery. The permission so accorded to DIL on its application dated 4-4-1986 was subsequently modified on 19-8-1987 by making it obligatory for the DIL to have and retain at least 51 per cent of the share capital of the Nepal Company. The DIL accordingly set up the Nepal Company, as its subsidiary and made an investment of Rs. 15,86,115 (Nepali Rupees 26,64,673) from time to time upto 31-3-1988 reflecting the same in its balance-sheet for the year 1988 which was duly sent alongwith a letter dated 22-8-1988 to the Registrar of Companies, the complainant-respondent (Annex 1). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Procedure, 1898 against his summoning as an accused (Annex 6) and also filed written submission (Annex 7) but the learned Magistrate vide his impugned order dated 17-11-1995 (Annex 8) rejected his objection leading to his petition before this Court with the prayer that the pendency and continuance of the present criminal pro-ceedings against the petitioner and other co-accused amount to gross abuse of the process of the Court of the learned Magistrate inasmuch as no offence, in the position of law as it stood at the relevant time, was committed by them and, therefore, such proceedings must be quashed. 6. Ordinarily this Court is least inclined to quash the criminal proceedings in their inception, in exercise of its exceptional powers under section 482 of the Code of Criminal Procedure. It is by now well settled that the powers of this Court under section 482 are quite exceptional in the sense that those are required to be sparingly exercised in the rarest of rare cases. As was observed by the Apex Court in State of Himachal Pradesh v. Prithi Chand 1996 (2) SCC 37 (2) and reiterated in State of Bihar v. Rajendra Agarwal 1996 (4) SCC 164(3) and Keshub Mahendra v. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... companies in same group. (1) A company (hereinafter in this section and section 373 referred to as ('the investing company') shall not be entitled to subscribe for, or purchase, the shares or debentures of any body corporate belonging to the same group as the investing company, except to the extent and except in accordance with the restrictions and conditions specified in this section. (2) The board of directors of the investing company shall be entitled to invest in any shares or debentures of any' other body corporate in the same group up to ten per cent of the subscribed capital of such other body corporate: Provided that the aggregate of the investments so made by the Board in all other bodies corporate in the same group shall not exceed twenty per cent of the subscribed capital of the investing company. (3) The investing company shall not make any investment in the shares or debentures of any other body corporate in the same group, in excess of the limits specified in sub-section (2) and the proviso thereto, unless the investment is sanctioned by a resolution of the investing company and unless further it is approved by the Central Government. (4) No investment shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meeting and unless (previously) approved by the Central Government: Provided that the investing company may at any time invest up to any amount in shares offered to it under clause ( a ) of sub-section (1) of section 81 (hereafter in this section referred to as rights shares) irrespective of the aforesaid percentages: Provided further that when at any time the investing company intends to make any investments in shares other than rights shares, then, in computing at that time any of the aforesaid percentages, all existing investments, if any, made in rights shares upto that time shall be included in the aggregate of the investments of the company. (5) to (13) ** ** ** (14) This section shall not apply, ( a )to any banking or insurance company; ( b )to a private company, unless it is a subsidiary of a public company; ( c )to any company established with the object of financing, whether by way of making loans or advances to, or subscribing to the capital of private industrial enterprises in India, in any case where the Central Government has made or agreed to make to the company a special advance for the purpose or has guaranteed or agreed to guarantee the payment of m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablished its subsidiary in Nepal with the requisite approval of the Central Govern-ment under section 27(3) of the FERA but also that investment to the tune of Rs. 15,86,115 was made by it in the Nepal Company from time to time upto 31-3-1988. The balance-sheet ending 31-3-1988 was duly submitted on 22-8-1988 to the complainant making him aware of the position of investment in the Nepal Company. Surprisingly enough no mention of that fact, which clearly made the amended provisions of section 272(4) in-applicable to the facts in the present case was made in the complaint. This material fact was deliberately suppressed as the reply of the petitioner to the notice issued to DIL was not at all heeded to. No doubt the simulta-neous non-prosecution of the DIL itself and/or its managing director(s) in the case do not adversely affect the maintainability of the complaint against other officers/directors/employees of DIL, but no explanation was offered for not arraying them as co-accused in the case. In the lower Court exemption to the complainant from personal attendance was sought for and duly granted by the Court and despite service of notice of date and place of hearing to the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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