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TMI Blog2015 (7) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. ii) Contempt Application being lA No. 1218/2005 in CS (OS) No. 43/2005 pending against Mr. Rajendra Kumar Gupta and Mr. Ravi Raj Gupta for violation of order dated 14-01-2005 pending before this Court. iii) Agreement to sell entered into between the Respondent Company and the Petitioner for sale of the farm house property in respect of which the Complaint is filed. The said Agreement is the subject matter of suit for specific performance on the basis of part payment of consideration receipt thereof was filed being CS (OS) No. 915 OF 2009 pending before this Court. Similarly the suit for possession filed by the Respondent/Complainant Company in respect of the farmhouse property against the Petitioner/Accused being CS (OS) No. 2626 OF 2008 pending before this Court. An Order of injunction dated 22.05.2009 passed by this Court directing the Respondent/Complainant Company to maintain status quo with respect to the title of the suit property i.e. the farm house property in the suit for specific performance filed by the Petitioner against the Respondent/Complainant Company being CS (OS) No.915/2009. In another suit, an order of injunction dated 17.12.2008 passed by this Court in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary to refer long history of litigation pending between the parties as the same is not required in order to decide the issue in hand. 6. In nut-shell, it is stated that the criminal complaint has been filed with an ulterior motive, personal vengeance on the petitioner. Having failed to get vacated the status quo orders of the this Court, the complaint has been filed against the petitioner n order to harass him. It is alleged that the complaint has been filed pursuant to the Resolution dated 14th February, 2005 of the Board of Directors of the Respondent Company in which meeting Shri Rajendra Gupta participated, who had ceased to be a director of the respondent Company with effect from 31st December, 2004 and could not have participated in any meeting of the Board of Directors of the respondent/complainant Company subsequently and for which proceedings for contempt of court are pending. The same has been filed in contravention of the status quo order dated 14th January, 2005, 30th January, 2005 passed by this Court in CS (OS) 43/2005, which is operational till date. The Magistrate passed the summoning order mechanically, without due application of mind. It is a family dispute in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the said property. 11. The respondent has in para 15 of the said criminal complaint has stated as under : ".....that the complainant at no point of time authorized him to use the said property as his residence, despite the fact further that the said occupation is illegal in view of the clear order passed by the Delhi High Court to that effect, the accused has starting quoting the said property as his residence in the official communication. The audacity of the accused could be very easily established from the fact that the accused even in the judicial proceedings filed before the same Hon'ble Delhi High Court which specifically restrained the accused from using the said property as his residence....". 12. In the summoning order dated 20th April, 2010 the Magistrate has referred to the sale deed in favor of the complainant/respondent company as well as the order dated 1st November, 1990 passed by this Court in CA No. 403/90 in CP 115/86 and also taken into account that the petitioner/accused was entitled to receive Rs. 7000 per month House rent allowance. The Magistrate has further recorder in the summoning order that the respondent company is the owner of the said propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Senior counsel has referred few decisions in support of his submissions. The details of the some are given as under : (i) Gopika Chanrabhushan Saran and Anr. vs. XLO India Ltd. and Anr., (2009) 3 SCC 342 It was held that pendency of a civil suit and the existence of an interim order directing maintenance of status quo does not bar criminal proceedings under section 630 of the companies act, 1956. (ii) Maratt Rubber Ltd. vs J.K. Marattukalam, 2001 SCC (Cri) 646 It was held that in a case instituted on complaint the High Court was possibly not entitled to look to the several documents purported to have been' filed by the accused in several civil proceedings, and rely on some orders/observations made there under. The defence of the accused cannot be looked into. (iii) Ravindra Kumar Madhanlal Goenka and Anr. vs. Rugmini Ram Raghav Spinners Pvt. Ltd., (2009) 11 SCC 529 It was held that while entertaining a petition under section 482, materials furnished by defence cannot be looked into and can be entertained only at the time of trial. (iv) J.P. Sharma vs. Vinod Kumar Jain and Ors., (1986) 3 SCC 67 It was held that if prima facie offences are made out on the basis of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7th December, 2008 was passed in the suit filed by the respondent directing maintenance of status quo regarding title and possession in as much as the respondent is seeking recovery of possession of its property and heeded protection so that the petitioner did not alienate or create third party rights in the said property in furtherance of his illegal and mala-fide designs. The order date 22nd May, 2009 was passed in the suit for specific performance filed the petitioner directing the maintenance of status quo with respect to title of the said property. 18. Therefore the submission is made on behalf of petitioner that the complaint itself is bad as the same has been filed on the basis of a resolution which in itself could not have been passed in view of the status quo order of the court. The next ground taken by the petitioner is that the summoning order could not have been passed as the complainant were not examined before the court which is contrary to the mandatory provisions of Cr.P.C. 19. The said Section 630 of the Companies Act, 1956 for ready reference is reproduced hereunder. "Section 630: Penalty for wrongful withholding of property. (1) If any officer or employee o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 5th February, 2005 may be held but the decisions in regard to Directorship of the company if any action taken in the AGM shall not be given effect. He submits that the very constitution of the board was under challenge in the said suit filed by the Petitioner alongwith his son. The proceedings of the Board Meeting dated 14th February, 2005 being in contempt of the civil proceedings being CS (OS) No. 43 of 2005. The status-quo order dated 14th January, 2005 was recorded and reflected in the minutes of the meeting dated 14th February, 2005 filed along with the Complaint. Relevant portion of the minutes of the meeting read as under: "........... the minutes were confirmed subject to the outcome of the High Court proceedings." And also as : "...Letter of Shri Rajendra Gupta dated 11.02.2005 convening the Board Meeting and agenda contained therein is in contempt of order dt.14.1.2005 of Delhi High Court, as per which status Quo is to be maintained between the parties..." The Petitioner had immediately initiated contempt proceedings before this Court being I. A. No. 1218/2005 in CS (OS) No. 43 I of 2005 for passing of the said board resolution in contempt of the status quo order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiffs have become infructuous. We think that it is not so. In this suit, business transacted in the meeting held on 06.01.2005 is challenged on the ground that defendant No.l could not have attended that meeting, as he ceased to be the Director on 31.04.2004. The Court had granted status quo order as prayer of the plaintiffs in the suit was to restrain the defendants from acting any furtherance of the resolution passed in the meeting held on 06.01.2005. What would be the effect if this suit is decreed ultimately? Naturally, any action taken pursuant to the resolutions passed on 06.01.2005 shall be rendered illegal. One of the resolutions passed in that meeting was that AGM be held on 05.02.2005. Thus, if the suit is decreed, it would have direct bearing of the outcome of AGM which was held on 05.02.2005. In this view, we have to take note of the interim orders dated 14.01.2005 and 31.01.2005. On 14.01.2005 status quo as on that date was directed to be maintained by the parties. Moreover, it is also to be borne in mind that according to the plaintiffs, these meetings are held in violation of status quo order and therefore for this purpose, even contempt application is filed wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Magistrate need not examine the complainant and the witnesses (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complainant; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, then the latter Magistrate need not re-examine them. 28. There is a force in the submission of Mr. Gandhi, learned Senior counsel as the word 'shall' used in the said provision signifies that the examination of the complainant is mandatory and only under three exceptions provided in the proviso can it be dispensed with. The said view was taken by the Supreme Court in Associated Cement Co. Ltd. vs Keshavanand [(1998) 1 SCC 687] wherein it was categorically held that: "Chapter XV of the new Code contains provisions for lodging complaints with magistrates. Section 200, as the starting provision of that chapter enjoins on the Magistrate, who takes cognizance of an offence on a complaint, to examine the complainant on oath. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner filed a suit for specific performance of the agreement to sell for the same property against the respondent. The interim orders are already been passed in both the matters. The dispute with respect to board resolution is also raised. Issues are already framed. One of the issue is about the said alleged illegal occupation of the farm house i.e. suit property. Onus of the said issue is upon the respondent. The evidence in both these suits is being led together & has already started and being led by the respondent company presently. 32. Had it been a normal matter, this Court ought not have interfered with the summoning order as 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 s ..... 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