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TMI Blog2018 (8) TMI 1841X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be stretched to mean that Court is barred from hearing them at all at the stage of formation of opinion under the aforesaid provision. I do not find any error apparent on the face of the record or any other ground which would warrant review of my order passed on 18th April, 2017. Petition dismissed. - Company Application No. 502 of 2017 - - - Dated:- 9-8-2018 - ANIRUDDHA BOSE, J Mr. Deepak Khosla, Adv., Fatena Nissa Adv. for the applicant Anunoy Basu, Adv. Srinjoy Bhattacharya, Adv for the respondent JUDGMENT 1. In this application the applicant seeks review of an order passed by this Court on 18th April, 2017 in a proceeding taken out by the applicant under Section 340 of the Code of Criminal Procedure, 1973. I had chosen to pass an order for hearing the persons against whom the applicant wants to initiate the proceeding before I formed my opinion as to whether it was expedient in the interest of justice that an enquiry should be made into an offence which may come within Clause (b) of sub-section 1 of Section 195 of the 1973 Code. 2. Argument of Mr. Khosla, learned Counsel for the applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid four pleadings is in connection with an application registered as C.P. No. 33 of 1988. That application, instituted under Sections 397 and 399 of the Companies Act, 1956 was dismissed by a learned Single Judge of this Court on 21st June 2007, and the order of dismissal was sustained by an Hon ble Division Bench of this Court. Subsequently, Hungerford Investment Trust (H.I.T.) had taken out an application on 2nd July 2006, registered as C.A. No. 491 of 2012 seeking to substantiate control over Turner Morrison Co. Ltd. and its subsidiaries, and various directions were prayed for in that regard. The main ground for dismissal of the petition under Sections 397 and 399 of the Companies Act, 1956 was lack of locus on the part of the applicant and it was found by the Court that the applicant had lost the eligibility criteria. A petition seeking to review the dismissal order of the Appellate Bench was also dismissed by a Division Bench of this Court on 7 th April, 2015. 3. The specific plea of the applicant is making of false statements have been outlined in paragraph 2(a) of the subject application. The facts narrated in the aforesaid pleadings, which accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, any affidavit or application is there in support of the aforesaid two applications, such affidavits or applications will be heard together. I also want to make it clear that it is not possible for this Court to fix a specific date for hearing of applications in connection of CP No. 33 of 1988, as I am in the midst of hearing of another application in which, there are some contesting sides who are common to the both sets of litigants, the said proceeding being CP No. 90 of 1983. The applications involving CP No.33 of 1988 would be posted for hearing after conclusion of the proceedings taken out in connection with CP No. 90 of 1983 and for that purpose liberty is given to the learned Counsel for the parties to mention the same before this Court for listing after the proceedings arising out of CP 90 of 1983 are concluded. Subsequently, this application was called on for hearing at the instance of Mr. Khosla. 6. The Companies Act 2013 has become operational in the meantime. By a notification dated 1st June 2016 bearing no. S.O. 1933 (E), issued by the Central Government, the National Company Law Appellate Tribunal has become functional. A further notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication, no elaborate argument has been advanced on that count. 4. So far as the ratio of the four authorities is concerned, I had observed: 7. Under the aforesaid provisions of the 1973 Code, the Court is required to make a preliminary inquiry and come to a prima facie finding about the offence alleged and Mr. Khosla s submission, as I have already recorded, is that no service of notice ought to be effected on the persons in respect of whom his client wants proceedings to be commenced. None of the four authorities cited by Mr. Khosla, however, lays down that a Court considering an application brought under Section 340 of the 1973 Code is enjoined from hearing any of the accused persons, against whom inquiry is asked for. These authorities lay down the proposition that the persons against whom an inquiry is contemplated do not have the right of prior opportunity of hearing before such an inquiry is directed. The legislature has not provided in what manner an inquiry contemplated in Section 340 of the 1973 Code is to be conducted. It is for the Court making preliminary inquiry for the purpose of formulation of opinion that it is expedient in the intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prayer of the applicant for initiation of proceeding for contempt, that plea is also founded on the same set of allegations. I shall examine the prayer of the applicant on that count after hearing the aforesaid individuals. Let this matter be listed on 10th May 2017. 5. In this application it has been argued by Mr. Khosla that in the order of 18th April, 2017 I have misconstrued the ratio of the four authorities relied upon by him. He has referred to Paragraph 7 (of the report) in the case of Madan Lal Sharma, (supra) , which reads: 7 . A reading of Section 340, Cr. P.C. shows that the Court is empowered to make such preliminary inquiry as it thinks necessary. The very word used in Section 340, Cr. P.C. contemplates that it is always for the Court to hold a preliminary inquiry. The Section does not envisage hearing of the accused before filing a complaint. It is always open to the accused to raise all the defences that are open to him under Law before the Magistrate in whose Court the complaint has been filed. The principle of audialteram- partem only means that no party should be condemned unheard. It does not postulate that before making complaint, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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