9911796707
TMI Blog2015 (7) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... he said order is a legally correct order. It is settled law that the complaint under Section 630 of the Company Law may be maintainable despite of pendency of the civil litigation, but the facts in the present case are distinct as it is doubtful whether the complaint in the existing circumstances when the board resolution itself is under dispute is maintainable whether the proceedings can continue, therefore, instead of dismissal of complaint, I am of the view that the summoning order are liable to be quashed. The trial Court is directed not to further proceed with the complaint, the same is sine die adjourned till final conclusion is arrived out between the parties about the validity of board resolution. The respondent is granted liberty to revive the complaint if such situation would arise i.e. after deciding the issue of validity of board resolution by the Civil Court. - Crl.M.A. Nos.4197/2011 & 17460/2014 in CRL.M.C. 1149/2011 - - - Dated:- 5-6-2015 - MR. MANMOHAN SINGH, J. For The Petitioner : Mr.S.S. Gandhi, Sr. Adv. with Mr.Vikram Singh Panwar, Adv. For The Respondent : Mr.Suhail Dutt, Sr. Adv. with Mr.Sujoy Kumar, Adv. MANMOHAN SINGH, J. 1. The pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suppressing the aforementioned material facts. Had they been not suppressed, trial court unlikely to pass the summing order, even otherwise it is a family dispute of civil nature and one of the properties of the complainant company. 4. The complaint was filed by the respondent Company through its Directors, Mr. Rajendra Kumar Gupta and Mr. Raviraj Gupta; both allegedly jointly authorized by the respondent Company, by board resolution dated 14th February, 2005, the board resolutions dated 6th January, 2005 i.e. including 14th February, 2005, by Complainant Company are already under challenge before this court in a suit filed by the petitioner herein (i.e. CS (OS) No. 43/2005), who is claiming to be one of the Directors of the respondent company, the brother of the said Sh. Rajendra Kumar Gupta. Further, Mr. Ravi Raj Gupta is the son of Mr. Deshraj Gupta, brother of the Petitioner and the said Mr. Rajendra Gupta. This court in the said proceedings being CS (OS) No. 43/2005 had passed the order directing status quo vide order dated 14th January, 2005 while the impugned complaint was filed much later on 29th May, 2007, without disclosing the said order. In violation of the order pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque for ₹ 20,000,00/- (Rupees Twenty Lacs only). Even otherwise the petitioner being Director-ln-charge of the respondent company and some time in September 2002 along with his wife were put in possession of the said property for residential purpose in accordance with his rights and entitlements. 7. The respondent company claims to be the owner of the subject property being the farmhouse bearing Khasra no. 53-20/2, 21/1, 54-16/1, 25/2, 68/27, 80-6, 7, 14, 15/1, 16/2, 17, 8/1, 13/2, 18/1, 27, 28 total of 16 KITA and having area of44 Bighas, 17 Biswas located at Village Bizwasan, Tehsil Vasant Vihar, Distt. South West Delhi, New Delhi (hereinafter referred to as the 'said property'). 8. In the said complaint under Section 630 of the Companies Act, 1956 the respondent stated that it is the owner of the said property and that in the year 1990 the petitioner in the-present proceedings before this court had filed an application being CA No.403 of 1990 in CP 115 of 1986 indicated that the petitioner has no right or authority to occupy the said property. The same belongs to and is owned by the respondent company. 9. In the complaint it is also the case of the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ummoned the accused under Section 630 of the Companies Act, 1956. The said order is a legally correct order. 13. The respondent submits that the grounds raised by the petitioner in the present petition under Section 482 of the CrPC do not entitle the petitioner to seek an order for quashing of the summoning order and the criminal complaint filed under Section 630 of the Companies Act, 1956. 14. Mr. Suhail Dutt, learned Senior counsel appearing on behalf of respondent has made his submissions which are outlined as under : a) That both civil and criminal remedies are available to the aggrieved party. The mere filing of civil proceedings would not be a sufficient ground to quash the summoning order. In the present matter the trial court has prima facie observed that there are prima facie sufficient grounds exist to proceed against the petitioner under Section 630 of the companies act, 1956 who has referred to the sale deed in favor of the respondent company as well as the order dated 1st November, 1990 passed by this court and other documents and on the basis thereof passed the summoning order. The impugned order does not suffer from any infirmity. From the facts of the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent is entitled to seek recourse to the statutory remedy enshrined under Section 630 of the Companies Act, 1956. It is submitted by him that in case, the respondent is about to prove his case before the trial court then in the civil proceedings pending before the high court similar- relief cannot be granted as the civil court has no power or jurisdiction to award a sentence of punishment against the petitioner/accused as envisaged by Section 630 of companies act, 1956. e) Lastly, he stated that the respondent is not insisting for personal appearance of the petitioner on every date being old person and his client has no objection if he be exempted from personal. 15. It is argued on behalf of respondent that at the stage of passing a summoning order the trial court is only required to consider the averments in the complaint and if the averments are taken as true and offence is made out then the summoning order cannot be quashed. In the present case the said property admittedly belongs to and is owned by the respondent company. It is stated in the complaint that no right title or interest has ever been created in favor of the petitioner to use the said property and docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f, be punishable with fine which may extend to one thousand rupees. (2) The Court trying the offence may also order such officer or employee to deliver up or refund, within a time to be fixed by the Court, any such property wrongfully obtained or wrongfully withheld or knowingly misapplied, or in default, to suffer imprisonment for a term which may extend to two years. 20. After examining the averments made in the complaint and having gone through the decisions referred by Mr. Dutt, learned Senior counsel, I am of the view that in normal cases both remedies may be available. The complainant under Section 630 of the Companies Act, 1956 can be filed if the averment made in the complaint prima facie are correct or the complaint is validly filed by the competent person before the trial court. If the conditions are fulfilled and court is satisfied, the summoning order may not be interfered. The defence raised in the petition under Section 482 Cr.P.C. is to be postponed for the later stage. 21. However, in the present case the petitioner has challenged the validity of filing of complaint itself. It is the case of the petitioner that the board resolution dated 14th February, 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntained by the parties vide order dated 14th January, 2005 while the complaint was filed much later on 29th May, 2007, without mentioning about the said order. The respondent had so far acknowledged that there was an order of status quo and no action could have been taken, and hence no action was taken for the next 2 years despite the resolution. 24. It is not denied by Mr. Gandhi that the status quo order was modified by an order dated 31st January, 2015 to the limited extent of permitting the holding of the AGM of the Complainant Company on 5th February, 2005 and it was further observed that resolution, if any, passed affecting the directorship of the Plaintiffs therein (i.e. Mr. Shivraj Gupta, the accused herein and his son, Mr. Jayant Gupta) shall not be given effect to. Prior to the status quo order. Powers (Financial Legal) of the Complainant Company were jointly exercised by Mr. Shivraj Gupta (petitioner herein) and Mr. Ravi Raj Gupta. However, in a Board Meeting dated 14th February, 2005, Powers (Financial Legal) exercised by Mr.Shivraj Gupta and Mr. Ravi Raj Gupta were changed to either of Mr.Shivraj Gupta and Mr, Rajendra Kumar Gupta together with Mr.Ravi Raj Gupta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the only embargo put by the Court were limited to the decision with regard to the directorship of the plaintiffs and no other business, which was to be transacted on 05.02.2005, we have to keep in mind that these are the interim orders. That would not mean that all other decisions taken on 05.02.2005 automatically become legal only because the Court had permitted the AGM to go ahead. It is stated at the cost of repetition that this AGM convened on 05.02.2005 is a sequel to the resolution passed on 06.01.2005, validity whereof is the subject matter of the suit. Therefore, the outcome of the suit will have direct bearing on the AGM held on 05.02.2005. Subsequent meetings, viz.. EGM held on 04.06.2005 and board meetings held on 14.02.2005.21.06.2005 and 26.09.2005 are the off shoots of the said AGM. Thus, it is clear that the events which have taken place subsequent to the board meeting held of 06.01.2005 form one single chain. These are the incessant and continuous events arising out of the same transaction. Amendment based on such subsequent events is permissible and is to be allowed to do complete justice in the matter... [ Emphasis supplied ] 26. It is argued by Mr. Gan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o dismiss the complaint if he is of opinion that there is no sufficient ground for proceeding after considering the said statement on oath. Such examination of the complainant on oath can be dispensed with only under two situations, one if the complaint was filed by a public servant, acting or purporting to act in the discharge of his official duties and the other when a court has made the complaint. Except under the above understandable situations the complainant has to make his physical presence for being examined by the magistrate. 29. Even otherwise, in the present matter the board resolution dated 14th February, 2005 which authorized the institution of the complaint was not proved at all during the pre summoning evidence. The board resolution specifically authorized Mr. Rajendra Gupta Mr. Raviraj Gupta, to pursue legal action in the instant case. But, none of the two authorized persons appeared before the Trial Court at stage of the pre-summoning evidence to pursue the complaint may be some reason or otherwise in order to face the proceedings . The learned Trial Court did not verify the said aspect of the matter or it was not brought to the knowledge of the trial Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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