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TMI Blog2011 (7) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 19-2-2010.) A.C.O. NO. 35 OF 2010 C.P. NO. 363 OF 2007 - - - Dated:- 25-7-2011 - PINAKI CHANDRA GHOSE AND HARISH TANDON, JJ. P.C. Sen, S.N. Mitra, V.N. Mishra and Deepak Agarwal for the Appellant. Susanta Dutta and Madhu Sudhan Sarkar for the Respondent. JUDGMENT Harish Tandon J. - This appeal is directed against the judgment and order dated February 19, 2010, passed in C. P. No. 363 of 2007 ( Subhas Agarwal, Prop. of Ankit Co. v. Bijoy Nagar Tea Co. Ltd. [2010] 154 Comp. Cas. 428 (Cal.)) by which a company petition for winding up of an appellant-company was allowed with cost assessed at 5,000 gms. and the Registrar, original side was directed to file a complaint against the deponent of the company's affidavit before a Magistrate of competent jurisdiction for making a false and frivolous defence before the company court. 2. Before dealing with the respective contentions raised by the parties it would be pertinent to bring on record that the parties before us have reached the settlement and have withdrawn the claim and rival claims so raised before the company court. 3. Since the monitory claim of the petitioning creditor is satisfied, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor and the same was duly replied by the appellant-company taking a multifarious defence including a defence as to the issuance of a debit note in one of the letters relating to charging excessive rates and also substitution of three of seven cheques issued earlier. 9. The defence which has been set up in reply to the statutory notice has weighed much to the company court who having found the same to be a moonshine defence having smack of falsehood. 10. Mr. P. C. Sen, the learned senior advocate appearing for the appellant-company argues that merely the defence which was set up by the appellant-company was found by the company court to be untenable, does not confer power upon the court to invoke section 191 of the Indian Penal Code, 1860. He further argues that because of reply to a subsequent statutory notice having been given and reply to an earlier statutory notice was not given, does not make the defence based on falsity. 11. He strenuously argues that the company court has proceeded on a mere presumption and assumption without recording its positive finding of fabrication, manufacture and creation of a document in order to deceive not only the other party but also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutory notice as by that time the advocates have intervened the reply to a subsequent statutory notice has been shown the light of the day. 16. Admittedly, the petitioning creditor could not annex a sheet of paper evidencing the service of the statutory notice upon the appellant-company in an earlier company petition. The appellant-company has categorically denied to have received any such statutory notice. If it is a specific defence taken by the appellant-company that such statutory notice has not been received and the petitioning creditor could not have proved satisfactorily that such notice has been served, there is no occasion on the part of the appellant-company to have replied to such statutory notice which has not been served upon it. 17. The company court has further proceeded that the story of issuing the debit note is not probable as audits are done at the interval of every financial year. The company court has put much stress on the fact that once having confirmed the balance, the appellant-company could not have raised any dispute as to the difference in rates of the price of the goods so sold and delivered. It is further recorded that there is no explanation f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r passed by the High Court directing the Prothonotary and Senior Master of the High Court to file a complaint against the appellant was vitiated." 21. On some what similar facts, the apex court in case of K.T.M.S. Mohd. ( supra ), held that mere contradiction in statement itself does not justify the prosecution in the following words (page 1840) : "The mere fact that a deponent has made contradictory statements at two different stages in a judicial proceeding is not by itself always sufficient to justify a prosecution for perjury under section 193 of the Indian Penal Code, 1860, but it must be established that the deponent has intentionally given a false statement in any stage of 'judicial proceeding' or fabricated false evidence for the purpose of being used in any stage of the judicial proceeding. Further, such a prosecution for perjury should be taken only if it is expedient in the interest of justice." 22. The three-judge Bench of the Supreme Court in the case of Chajoo Ram ( supra ), held that the prosecution for forgery should be sanctioned by the courts in those cases where it appears to the court that the same has been made deliberately and consciously and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 41 provides for an appeal against an order directing filing of the compliant. The hearing and ultimate decision of the appeal is bound to take time. Section 343(2) confers a discretion upon a court trying the complaint to adjourn the hearing of the case if it is brought to its notice that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen. In view of these provisions, the complaint case may not proceed at all for decades specially in matters arising out of civil suits where decisions are challenged in successive appellate for a which are time consuming. It is also to be noticed that there is no provision of appeal against an order passed under section 343(2) whereby hearing of the case is adjourned until the decision of the appeal. These provisions show that, in reality, the procedure prescribed for filing a complaint by the court is such that it may not fructify in the actual trial of the offender for an unusually long period. Delay in prosecution of a guilty person comes to his advantage as witness become reluctant to give evidence and the evidence gets lost. This important consideration dissuades us from accepting t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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