9911796707
TMI Blog2015 (10) TMI 1716X X X X Extracts X X X X X X X X Extracts X X X X ..... INDIA] followed - Decided in favour of Respondent - Crl. Misc. No.M-42348 of 2014 - - - Dated:- 24-7-2015 - MS. ANITA CHAUDHRY, J. For The Petitioner : Mr. Anand Chhibbar, Sr. Advocate with Mr. Vaibhav Sahni, Advocate For The Respondent : Mr. S.S. Sandhu, APP, Mr. Anshul Singh, Advocate ANITA CHAUDHRY, J(ORAL) 1. This is a petition filed under Section 446 of the Companies Act read with Section 482 Cr.P.C. seeking quashing of FIR No. RC-BD- 1/2000/e/0005 and Sections 120-B, 420, 467, 468 and 471 IPC dated 22.12.2000, registered by Central Bureau of Investigation, Bank Securities and Fraud Cell, New Delhi. 2. The primary question which requires adjudication is whether the FIR registered in Delhi can be quashed in the proceedings filed in this High Court. Secondly, whether the expression other legal proceedings occurring in Section 446 of the Companies Act would include Criminal Proceedings. 3. It would be useful to give the factual matrix, the petitioners claim themselves to be Ex-Directors/Promoters of Asian Consolidated Industries Ltd. which was earlier in liquidation in the proceedings decided on 12.05.2014. It has been pleaded that the company is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es pledged with IDBI for a bridge loan were not parted with and the loan was repaid on 04.01.1994 much prior to the agreement of pledge with SIDBI. The case of the petitioners further is that the company in liquidation had arrived at one time settlement with the respondent no.2 bank and a communication was given to the company on 01.07.2013 and one time settlement had been arrived at and entire dues had been paid and no outstanding amount was pending. It was pleaded that the complainant of the said FIR had filed recovery proceedings before Debt Recovery Tribunal, Delhi and they had withdrawn the recovery certificate in July, 2013 and an order was passed in this regard. It was pleaded that the company in liquidation did not have any intention to cheat any secured or unsecured creditors. It was pleaded that the petitioners and complainant/respondent no.2 had reconciled their grievances and had buried their disputes and therefore, they were approaching this Court for quashing of the FIR as continuation of further proceedings would be waste of judicial time and resultantly lead to miscarriage of justice. The petitioners had pleaded that in view of the five Judges Bench judgment reporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of two share certificates of ₹ 20 lacs shares and 13,20,000 shares of ACIL having same certificate number, folio number and distinctive number besides other securities. It was pleaded that the same shares had been pledged with M/s. Rajasthan Breweries Ltd. It was pleaded that investigations revealed that the share certificate issued in the name of M/s. Ganesh Exports for 20 lac shares was pledged with SIDBI as normal security and another share certificate for 13,20,000 shares was dishonestly pledged on 30.08.1995 as additional security and when this fact was brought to the notice of the company Mr. Sanjay Jain sent a letter that it was a case of wrong printing and had asked for the certificates for necessary correction. It was pleaded that M/s. ACIL forwarded 20 cheques of ₹ 10 lacs and two cheques of ₹ 50 lacs and knowing that there was no funds in the account in order to get back the disputed duplicate share certificate. Thereafter, the company sent two bank drafts of ₹ 50 lacs each and asked for return of the two cheques sent earlier and gave an assurance that the remaining 20 cheques of ₹ 10 lacs would be honoured. It was pleaded that the bank dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bank would not automatically absolve the directors. It was further pleaded that they had sent a query to the bank who had clarified that the pending criminal and civil matters had not been compromised. 10. Respondent no.2-SIDBI took the same stand as CBI and pleaded that this Court had no jurisdiction and the cause of action had not accrued within the jurisdiction of this Court and the petition was not maintainable in the present form and Section 446 of the Companies Act was not relevant and the petition was misconceived. It was pleaded that one time settlement was communicated to the company/directors on 30.03.2013 with a rider which contained the following condition:- The OTS offer of SIDBI should not be construed as constituting any commitment on the part of the Bank of withdraw criminal/civil proceedings against the company and its promoter(s), that may be pending with various Courts. 11. The matter came up before this Court on 06.07.2015 when the counsel for CBI had stated that the CBI had registered the FIR in Delhi and quashing petition had been filed in this Court and stay should be vacated. The counsel for the petitioners had sought time to argue. 12. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaded that they had not filed any such similar petition in this Court or before the Apex Court. The petitioner was asked to file an affidavit that no such or similar petition had been filed in any other Court in the country. That affidavit had been filed and was taken on record. 16. It would be relevant to first refer to the provisions of Company Act, 1956 referred to by the petitioner. Section 10 reads as under:- Section 10 (1) The Court having jurisdiction under this Act shall be- (a) the High Court having jurisdiction in relation to the place at which the registered office of the company concerned is situate, except to the extent to which jurisdiction has been conferred on any District Court or District Courts subordinate to that High Court in pursuance of subsection (2); and (b) where jurisdiction has been so conferred, the District Court in regard to matters falling within the scope of the jurisdiction conferred, in respect of companies having their registered offices in the district. (2) The Central Government may, by notification in the Official Gazette and subject to such restrictions, limitations and conditions as it thinks fit, empower any Distr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in Section 446(1) do not include criminal proceedings. Reference may be here made to Pennar Paterson Ltd. Vs. Shikshak Sahakari Bank Ltd., (2010) 155 Com Cases 338 . 19. The object of Section 446 of the Companies Act is to see that the assets of the company are brought under the control of the winding up Court to avoid wherever possible, expensive litigation and to see that all matters in dispute which are capable of being expeditiously disposed of by the winding up Court are taken up by that Court. This does not, however, mean that all disputes wherein a company is involved should be proceeded with only by the company court or that if they are pending with other statutory bodies leave of the company court has to be obtained. The requirement of the provision only is that a company cannot be proceeded against without the knowledge and consent of the company court. The Section, however, does not prohibit proceedings being taken by the company against this nor does it prohibit the taking of any proceedings against any directors or officers or other servants of the company. In Devasi (KP) Vs. Official Liquidator (1997) 90 Com Cases 438, proceedings against the Managing Dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed principles of law that where different expressions have been used in different sections of the statute, the same should be given different meanings. 14.The words suit and other legal proceedings may be read ejusdem generis. Had the intention of the Legislature been to include prosecution within the expression 'other legal proceedings', there was no reason as to why it could have been said so. Although the heading of section is not relevant for construction of a statute, where the wordings of the section are clear, the same in the case of obscurity can be referred to for ascertaining the true meaning of the provision. 19. It is now trite that even assuming that prosecution has been launched illegally, the remedy of the Official Liquidator would be either to file an application under Section 633 of the Companies Act and or to file an application before the concerned High Court to which the Court of Magistrate is subordinate either under Article 226 or 227 of the Constitution of India or under Section 482 or 397of the Criminal Procedure Code. The order taking cognisance by criminal Court can be interfered with either by a Magistrate, Sessions Judge or by the H ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
