9911796707
TMI Blog2018 (1) TMI 1094X X X X Extracts X X X X X X X X Extracts X X X X ..... the Companies Act by this Court, or the further dismissal of the SLP by the Supreme Court has absolutely no bearing on the continuation of the criminal proceedings since the said development cannot be said to be relevant or material development qua the criminal proceedings undertaken in respect of the aforesaid FIRs. The present petitions are completely misconceived and they are liable to be dismissed. - CRL.M.C. 2345/2015 and Crl. M.A. Nos.8181/2015 & 11749/2015 & CRL.M.C. 2365/2015 and Crl. M.A. Nos.8240/2015 & 11755/2015 & CRL.M.C. 2366/2015 and Crl. M.A. Nos.8242/2015 & 11744/2015 & CRL.M.C. 2369/2015 and Crl. M.A. Nos.8246/2015 & 11747/2015 - - - Dated:- 23-1-2018 - MR. VIPIN SANGHI J. Petitioner Through: Mr. Vikas Pahwa, Senior Advocate along with Mr. Gurpreet Singh and Mr. Jatin S. Sethi, Advocates. Mr. Sunil Mittal Mr. Tarun Chandoik Mr. Yudvir Singh Dalal, Advocates. Mr. Tanvir A. Mihir, Respondents Through: Mr. Rajat Katyal, APP for the State. Mr. Dayan Krishnan, Senior Advocate along with Mr. Harish Pandey, Mr. Rajbir Singh Gulia, Mr. Ashok Kumar Sharma, Mr.Vikram Singh Panwar, Mr.Raghvendra Mishra Ms. Vedika Mittal, Advocates for respondent No.2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. 315/2005 24.10.2005 Naraina Satya Pal Gupta Pradeep Kr Dhingra 380, 411/ 120-B IPC Crl. M.C No. 2366/2015 2. As per the case of the prosecution, the petitioners who are the Directors and Promoters of Sunair, and Sunair approached VLS Finance Ltd (VLS, for short), respondent No. 2 herein around December 1994, with a proposal to finance their hotel project. VLS, Sunair, Vipul Gupta and S.P. Gupta entered into an MOU dated 11.03.1995. The petitioners represented that they would invest ₹ 21 Crores towards equity share capital in the company, namely Sunair, in case VLS invests ₹ 7 Crore towards 25% equity share capital in Sunair. As per the prosecution, VLS invested the said amount of ₹ 7 Crores. 3. VLS made complaints alleging the commission of offences under various sections of the IPC, including Sections 420, 406, 409, 468, 471 and 120B by the petitioners, on the ground that the petitioners had not made their contribution of ₹ 21 Crores in the equity share capital of Sunair and had manipulated their accounts to show the making of such sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding consideration, an application was filed by the learned APP on 24.11.2011 in the Court of ACMM, stating that the prosecution had decided to withdraw from prosecution u/s 321 Cr.P.C. in case FIR Nos. 90/2000, 99/2002 and 148/2002, on the ground that the matter in issue was of a civil nature. Shortly afterwards, on 16.12.2011 another application was filed by learned APP that they would not press the earlier application under section 321 Cr.P.C., withdrawing from prosecution. The Trial Court entertained this subsequent application made by the learned APP, and the subsequent application was allowed vide order dated 07.01.2012. 8. This order dated 07.01.2012 was challenged by the accused by preferring five separate revision petitions before learned ASJ, which were dismissed vide common order dated 15.11.2014. The same was further challenged before this Court vide Crl. M.C. 2055/2015, Crl. M.C. 2054/2015 and Crl. M.C. 2053/2015. The aforesaid orders were quashed, and the petitions were disposed of vide order dated 30.07.2015. The relevant extract of the said order is produced hereinbelow: Consequentially, impugned orders are quashed with direction to the trial court to decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port of the submission, that the present petitions are maintainable, learned counsels for the petitioners have relied on SMS Pharmaceuticals Ltd. Vs. Neeta Bhalla And Anr., (2007) 4 SCC 70, wherein this issue of maintainability of a second quashing petition before the High Court was dealt with as follows: 28. Another submission of Mr Mishra was that the second application was not maintainable. Such a question had not been raised before the High Court. Even otherwise, the High Court was not denuded from exercising its inherent jurisdiction in a matter of this nature. The principles of res judicata are not attracted. Reliance placed by Mr Mishra on Simrikhia v. Dolley Mukherjee [(1990) 2 SCC 437 : 1990 SCC (Cri) 327 ] is misplaced. The question which arose for consideration therein was as to whether despite dismissal of an earlier application, a second application would be maintainable which would virtually amount to review of the earlier order which would be contrary to the spirit of Section 362 of the Code of Criminal Procedure. It was held: (SCC p. 440, para 7) 7. The inherent jurisdiction of the High Court cannot be invoked to override bar of review under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate Of Bihar And Another, (1999) 9 SCC 247. In this case, the High Court dismissed an application under Section 482 Cr.P.C. for quashing of FIR, on account of default of appearance. The appellant then preferred a second application for the same relief before the High Court. The High Court dismissed the second application on the ground that the earlier application having been dismissed, there was no scope for entertaining the second one. The High Court further observed that the appellants could disclose their defence to the investigating agency. In appeal, the Supreme Court disapproved of the approach of the High Court. It observed: 5. The learned counsel for the appellants is right in his submission that the High Court ought not to have rejected the application on the ground that it was not maintainable. We also agree with him that the contentions raised by the appellants should have been considered by the High Court before rejecting their application. As that has not been done by the High Court, we allow this appeal, set aside the judgment and order passed by it and remit the matter back to it for deciding it afresh after hearing the parties. (emphasis supplied). 14. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of over one and half years. It was for this reason that, despite the earlier order dated December 12, 1968, the High Court proceeded to consider the subsequent application of Respondents 1 and 2 for the purpose of deciding whether it should exercise its inherent jurisdiction under Section 561-A. This the High Court was perfectly entitled to do and we do not see any jurisdictional infirmity in the order of the High Court (emphasis supplied). 16. In support of the same proposition, reliance was also sought to be placed on State Versus K. V. Rajendran And Others, (2008) 8 SCC 673. 17. Mr. Mittal, learned counsel on behalf of petitioner S.P. Gupta argued that the petitioners are entitled to maintain the present petitions even after withdrawal of the earlier petitions, since, it is their case that even on a reading of the FIRs, no criminal offence is disclosed, and that the disputes between the parties are purely civil in nature. He placed reliance on Mrs. Nanda Khemka Anr. Versus State (NCT) Delhi Anr., 2016 (155) DRJ 544 , which is an instance of quashing of the FIR by this Court, where the dispute between the complainant and the accused was of pure civil nature. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogress in the criminal case even though it was filed as far back as 1965 and the criminal case rested where it was for a period of over and half years. The Supreme Court has reiterated the above observations in Neeta Bhalla II while rejecting a similar contention as to maintainability of a second petition under Section 482 CrPC. Therefore, the objection to the maintainability of the present petition is negative. (emphasis supplied) 20. The maintainability of these petitions is vehemently opposed by VLS. Mr. Krishnan on behalf of the respondent VLS argues that Yelchuri Ranganayakalu Chetty (supra) is no more good law in view of Kishan Singh (Dead) Through LRs. Versus Gurpal Singh And Others, (2010) 8 SCC 775 , wherein the Supreme Court observed: 18. Thus, in view of the above, the law on the issue stands crystallised to the effect that the findings of fact recorded by the civil court do not have any bearing so far as the criminal case is concerned and vice versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court on 09.08.2010. The order dated 24.03.2005 passed in W.P.(Crl.) No. 1163/2003 was assailed before the Supreme Court vide SLP (Crl.) No.14264/2005, which was dismissed by the Supreme Court on 03.07.2006. Similarly, the order passed in Crl.M.C. Nos.352/2009 and 1021/2009 dated 02.07.2009 (in respect of the summoning order in case FIR No.148/2002) was dismissed by the Supreme Court vide SLP No.127/2010 on 29.01.2010. Another Crl.M.C. No.3694/2011 was preferred to assail the charge-sheet and summoning order in respect of case FIR No.315/2005. The same was dismissed with costs of ₹ 25,000/-, with the observation that the petition is an abuse of the process of the Court, on 09.11.2011 by M.L. Mehta, J. It is pointed out by the respondent VLS that the same petitioner Pradeep Dhingra had earlier preferred a petition under a different name, i.e. Pradeep Kumar, like the other petitioner S.P. Gupta. 23. Having heard the submissions of learned counsel for the petitioners, the learned APP and the learned counsel for respondent No.2/VLS, I am of the considered opinion that the present petitions are completely misconceived and the petitioners are not entitled to seek ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners have tenaciously again approached this Court by way of these petitions. Several decisions, as taken note of hereinabove, have been cited by learned counsel for the petitioners to contend that the present petitions are maintainable despite the background taken note of hereinabove. In my view, none of these decisions come to the aid of the petitioners and support their claim with regard to maintainability of the present petitions in the fact and circumstances of the case. 31. SMS Pharmaceuticals Ltd. (supra) holds that the High Court is not completely denuded of its power to exercise its inherent jurisdiction for the second time, despite the earlier petition having been dismissed as not pressed, but while holding so, the Supreme Court highlighted the distinguishing feature in Rajinder Prasad (supra) namely that no special circumstances were spelt out in the subsequent application for invoking the jurisdiction of the High Court under Section 482 of the Code . 32. Krishna Narain Lal (supra) also holds that the High Court should not have rejected the second quashing petition under Section 482 Cr.P.C. merely on the ground that the earlier one had been dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact, the said order dated 23.04.2012 itself records in paragraph 20 the view of the Court that: 20. the CLB cannot be said to have really rejected the allegations of VLS against SUNAIR and Guptas as being not well founded and final decision has been kept pending there cannot be any perversity in the impugned order. So, all the allegations made by VLS are yet to be decided afresh by CLB while disposing of C.P. No.45/98 and since VLS shall have all the opportunity of substantiating the same before the CLB it cannot have any grievance against the impugned order nor can it have any effect on its case since the CLB has not at all gone into the merits of the allegations of VLS while rejecting the Government s petition under Section 237(b) of the Act. 37. I may also observe that the issue that arose for consideration by the CLB while considering the application of the Central Government under Section 235(b) of the Companies Act and the application preferred under Section 340 Cr.P.C. preferred by VLS, in any event, would not be the same as the issues which would arise for consideration before the Court dealing with the aforesaid criminal cases. 38. Moreover, as held in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xercise a great deal of caution. For the accused it is a serious matter. (emphasis supplied) 40. Thus, the dismissal of the appeal preferred by the VLS under Section 10F of the Companies Act by this Court, or the further dismissal of the SLP by the Supreme Court has absolutely no bearing on the continuation of the criminal proceedings since the said development cannot be said to be relevant or material development qua the criminal proceedings undertaken in respect of the aforesaid FIRs. 41. The further submission of learned counsel for the petitioners is that the nature of the dispute is primarily civil. This aspect, in my view, cannot be permitted to be agitated by the petitioners in the present petitions since the said aspect was raised by them in the earlier rounds, as taken note of hereinabove, and this Court did not find favour with the same. This is evident from the fact that the earlier preferred quashing petitions have repeatedly been rejected by this Court, or have been withdrawn by the concerned petitioners by stating that they shall pursue their remedy before the Trial Court. 42. In view of the aforesaid, I am of the view that the present petitions are complet ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
