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TMI Blog2010 (7) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... [hereinafter referred to as "IPC"] and under section 630 of the Companies Act, 1956 (hereinafter referred to as "the Act") was dismissed. Against the said order of dismissal, the appellant herein filed an application before the learned Single Judge of the High Court in Criminal Application No. 450 of 2007 seeking leave to file the appeal which was also dismissed on 14-7-2008, giving rise to filing of this appeal by the original complainant. Unfortunately, the accused have also with vehemence supported hypertechnicalities adopted by the aforesaid two courts, to contend that no interference is called for in the light of the facts as found in the aforesaid two orders. 3. Facts shorn of unnecessary details are mentioned herein below : 4. Appellant is a Company (hereinafter shall be referred to as "the Company") duly registered under the Act and is carrying on business of manufacturing two and three wheelers automobile products. Mr. V.S. Parthasarthy is the Factory Manager of the Appellant-Company and has been posted in Mumbai. A resolution has been passed by the Company on 31-12-2001 to authorise Mr. V.S. Parthasarthy, Factory Manager to represent the company and to sign, veri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al court but it is not required to be considered at this stage as Appellant s Criminal Complaint has been dismissed on technical ground. 10. Defence of the accused in short was that the complaint as filed by company through Mr. V.S. Parthasarthy is not maintainable inasmuch as the Power of Attorney dated 31-12-2001, said to have been executed in favour of Mr. V.S. Parthasarthy is a fictitious document. The services of accused No. 1 were never terminated and even after retirement he came to be re-appointed. Thus, he has a right to continue in its possession. As regards his undertaking given to the Chairman of the Company on 5-1-2000, wherein he specifically agreed to vacate the premises on or before 31-1-2000, he contended the same was not tendered voluntarily, meaning thereby the same was given under coercion, threat, undue influence, thus it was not binding. 11. Learned trial court critically examined the Power of Attorney and came to the conclusion that the same was executed on 31-12-2001, was notarised on 5-6-2001, and the stamp papers were purchased on 18-4-2002, which gives rise to suspicion with regard to genuineness and correctness of Power of Attorney. Ultimately, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same. After doing so, we do not find either of the two documents can be termed as fictitious or manufactured documents so as to oust the appellant from the arena of justice. 18. No doubt, it is true that Power of Attorney was executed on 31-12-2001, but has been scribed on a stamp paper purchased on 18-4-2002. But it has been notarised on 5-6-2002 and not on 5-6-2001 as has been noted by the trial court. The Rubber stamp seal put by the notary clearly depicts it as 5-6-2002. 19. Thus, after going through the same, it leaves no shadow of doubt in our mind that the same are genuine and duly authorised Mr. V.S. Parthasarthy to file and prosecute the complaint against the accused. We had also passed on the originals to the learned counsel for the respondent-accused to satisfy himself but still, after going through the same he persisted in his arguments tooth and nail that the date of Power of Attorney in fact is 5-6-2001 and not 5-6-2002. However, we are unable to agree to the argument as advanced by the learned counsel for the accused as he is trying to stretch it beyond our comprehension. 20. Admittedly, neither the Trial Court nor the High Court have gone into the mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly taken by the Magistrate but committed a grave error in rejecting it on technical grounds, instead of deciding it on merits. 24. Learned counsel for appellant has also placed reliance on section 621 of the Act, dealing with offences against the Act to be cognizable only on complaint by Registrar, shareholder or Government. To appreciate the arguments in this regard, the said section 621 of the Act is reproduced hereinbelow : "621. Offences against Act to be cognizable only on complaint by Registrar, shareholder or Government. (1) No court shall take cognizance of any offence against this Act, which is alleged to have been committed by any company or any officer thereof, except on the complaint in writing of the Registrar, or of a shareholder of a company, or of a person authorised by the Central Government in that behalf : Provided that nothing in this sub-section shall apply to a prosecution by a company of any of its officers : Provided further that the court may take cognizance of offence relating to issue and transfer of securities and non-payment of dividend on a complaint in writing by a person authorised by the Securities Exchange Board of India. (1A) Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... October, 2010 and to hand over its peaceful vacant possession to the Company. 30. We have done so exercising the powers conferred on us by virtue of provisions of Article 142 of the Constitution which cast a duty on us to do complete justice between the parties. 31. It is clear from the impugned orders that there is manifest illegality in the same and have resulted in palpable injustice to the Appellant/Company curable at this stage under article 142 of the Constitution as the aforesaid powers are inherent on this Court as guardian of the Constitution. 32. According to us, no useful purpose would be served even if the matter is remitted to Magistrate for trial on merits. We hold so because equity also does not swing in favour of the accused, who have displayed adamant and dilatory attitude. 33. From the date of retirement of accused No. 1 till date, more than 18 years have passed by and he has used the servant quarter without having any right to do so. No further mercy or sympathy can be shown to such an accused. 34. Thus, looking to the matter from all angles we are of the considered opinion that the order passed by Metropolitan Magistrate as also by the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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