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TMI Blog2021 (5) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... ections 403, 406, 409, 415, 418, 420, 424, 120 B and 114 of the Indian Penal Code so far as the petitioner is concerned and therefore, considering the bare averments made in the complaint, the same deserves to be quashed and set aside qua the petitioner and accordingly same is hereby quashed and set aside. Application allowed. - R/CRIMINAL MISC.APPLICATION NO. 5585 of 2020 With R/SPECIAL CRIMINAL APPLICATION NO. 3100 of 2018 - - - Dated:- 5-11-2020 - HONOURABLE MR. JUSTICE BHARGAV D. KARIA Appearance: MR. NAVIN PAHWA, SENIOR ADVOCATE WITH MR. JAIMIN A GANDHI(8065) for the Applicant(s) No. 1 MS. JIRGA JHAVERI, APP for the Respondent(s) No. 1 MR. CHIRAYU MEHTA FOR MR. DEVANG VYAS, ASG for the respondent no.2 COMMON CAV JUDGMENT CORAM: HON'BLE MR. JUSTICE BHARGAV. D. KARIA ORDER IN SPEC.CRI.APP. No. 3100 of 2018: 1. Heard the learned Senior Advocate Mr. Navin Pahwa assisted by the learned advocate Mr. Jaimin A. Gandhi for the petitioner, the learned advocate Mr. Chirayu Mehta for the learned Additional Solicitor General Mr. Devang Vyas for the respondent no. 2 and the learned Additional Public Prosecutor Ms. Jirga Jhaveri for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters mentioned in the prospectus issued by the Company for the public issue of the shares. 4.5 It is the case of the petitioner that being professional director of the Company, the petitioner was not responsible for day-to-day transactions including the financial transactions of the Company. The petitioner resigned from the post of director of the Company vide letter dated 07.04.1995 which was accepted by the Company, however, the Form No. 32 as required under the Act,1956 was not filled by the Company with the Registrar of Companies for the same. 4.6. It appears that the Assistant Registrar of Companies, Gujarat filed a complaint before the Court of Additional Chief Metropolitan Magistrate, Ahmedabad being Criminal Case No. 145 of 2002 for the offences punishable under Sections 63, 68 and 628 of the Companies Act, 1956 against the petitioner and other directors of the Company for non-fulfillment of the statutory requirement, such as, not filing of the balance-sheet before the Registrar of Companies, etc. 4.7. The Security Exchange Board of India (for short 'the SEBI') by letter dated 10.01.2002 informed the petitioner for non-compliance of the listing agreement by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation at Exh.62 in Criminal Case No. 15072 of 2010 under Section 205 of the Code for granting exemption to remain present before the Court and by an order dated 12.03.2018, the petitioner was granted exemption by the Court. 4.14. The petitioner thereafter preferred various applications before the trial court for obtaining the passport at various point of time and he was granted permission to release his passport on stipulated conditions. The petitioner obeyed the conditions of order releasing the passport at each time. 4.15. It appears that as the Criminal case was not proceeded further, the petitioner preferred Special Criminal Application No. 3100 of 2018 with a prayer to direct the trial Court to dispose of the Criminal Case No. 15072 of 2010 within a period of six months on the ground that the case was still at the stage of evidence of the prosecution and is lying in a dormant stage since years. The petitioner also pointed out that despite issuance of various summons by the trial Court, the complainant respondent no.2- ROC was avoiding the trial for more than 13 years. The petitioner relied upon the case status as reflected on the website. The petitioner further contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the petitioner and two of such conditions were to the effect that the petitioner shall declare the details of address, contact number of his stay at foreign country before leaving the country and the petitioner to deposit the passport within three days of expiry of nine months i.e. on or before 15.12.2019. 4.20. However, it appears that as the brother- in-law of the petitioner suffered a cardiac arrest and passed away in the early morning on 18.09.2019, the petitioner executed an affidavit declaring his stay at U.S.A. and left for U.S.A. by flight on the same day and affidavit was sent through Registered Post A.D. to the concerned Police Station and the trial Court and as the petitioner did not have much time to intimate his itinerary and in such circumstances, he could not fulfill the conditions laid down in the order dated 12.03.2019 and on that ground the application made by the petitioner for extending the period of releasing of the passport was rejected. 4.21. This Court passed the following order on 15.06.2020 directing the registry to place both the matters i.e. Special Criminal Application No. 3100 of 2018 with Criminal Misc. Application No. 5585 of 2020 together: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Anil Khadkiwala v. State (Government of NCT of Delhi) reported in AIR 2019 SC 3583 to submit that the contentions and materials not considered in the first petition does not bar the second petition and it is maintainable. 5.5. It was submitted that apart from the petitioner, there are four other directors who are also named in the F.I.R., and therefore, the interest of the respondent no.2 ROC is adequately protected. It was further submitted that there is a clear violation of right of speedy trial inasmuch as the respondent complainant has already filed one complaint being Criminal Case No. 145 of 2002 in which though summons were issued by the Court to the petitioner, but were not served upon the other accused persons and therefore, no second complaint is maintainable. 5.6. The learned Senior Advocate Mr. Pahwa referring to the complaint filed by the respondent no.2 ROC pointed out that there is no averment in the complaint against the petitioner to show that how the petitioner is responsible for failure to disclose false statement in the prospectus. The learned Senior Advocate Mr. Pahwa also submitted that there is a delay in filing the complaint and all such groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (VI) P.Ramachandra Rao v. State Of Karnataka reported in 2002 (4) SCC 578. (VII) Lokeshkumar Jain v State of Rajasthan reported in 2013 (11) SCC 130. (VIII) Moti Lal Saraf Versus State Of Jammu and Kashmir reported in 2006 (10) SCC 560. 5.11. With regard to the contentions of the second complaint for the same offence is not maintainable, the learned Senior Advocate Mr. Pahwa submitted that the respondent no.2 filed Criminal Case No. 145 of 2002 before Judicial Magistrate First Class for offences u/s 63, 68 and 628 of Companies Act arising from the same facts regarding misstatement in prospectus and misappropriation of public money and for the same offence second complaint / F.I.R. being C.R. No.I 192 / 2004 could not have been filed before Sanand Police station for the alleged offences under sections 406, 415, 418, 420 and 424 of Indian Penal Code. 5.12. The learned Senior Advocate Mr. Pahwa relied upon the following decisions in support of his submissions: (I) Gaurang Shethwala v/s State of Gujarat rendered in Criminal Misc. Application No1.032 of 2007. (II) K.S. Ranganathan v/s State of Gujarat rendered in Criminal Misc. Application No. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o initiate actions against the Vanishing Companies. While issuing notices, the respondent authority has not pointed out any specific instances stating that which false or deliberate statements were made in the Prospectus or that such statements were made to induce the public for subscribing the shares of the Company. 5.16. The learned Senior Advocate Mr. Pahwa further submitted that the petitioner was appointed as a professional director on board of the Company and the petitioner was never a signatory to any of the accounts of the Company or listing agreements or bank accounts of the company as he had no power in the said company and all decisions were taken by Shri Bipin Mehta, who was the Managing Director of the Company. It was also pointed out that the petitioner was never assigned any executive or managerial responsibility nor the petitioner participated in the day-to-day affairs of the company. It was submitted that the petitioner never received any remuneration from the Company nor attended any meeting of the board of directors or general meeting and hence, the petitioner was not an officer in default as per Section 5 of Companies Act, 1956. In support of such submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v/s State of Gujarat. 5.20. The learned Senior Advocate Mr. Pahwa, therefore, submitted that considering the above submissions as well as the case law relied upon on behalf of the petitioner, the petition deserves to be allowed by quashing the impugned complaint as well as Criminal Case pending before the Chief Judicial Magistrate Court, Ahmedabad (Rural) at Mirzapur qua the petitioner. 5.21. The learned Senior Advocate Mr. Pahwa further submitted that so far as Criminal Misc. Application No. 5585 of 2020 is concerned, the only prayer made by the petitioner is to the effect that the trial Court should permit the petitioner to retain the passport during the pendency of the proceedings of Criminal Case No. 15072 of 2010, considering the facts and circumstances of the case of the petitioner and therefore prayed that the order dated 16.12.2019 passed in Criminal Misc. Application No. 4267 of 2018 be quashed and set aside and the petitioner be permitted to hold the passport for further period of two years. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO. 2: 6.1 The Learned Standing Counsel Mr. Chirayu Mehta appearing for the respondent no.2 submitted that the FIR for the of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndment, the petitioner has sought quashment of the Criminal Case No.15072 of 2010 on the ground of delay in trial. It was therefore, submitted by Mr. Mehta that the petitioner is having alternative efficacious remedy to seek discharge from the charges levelled against him under Section 227 of the Code. 6.6 It was also submitted that if the complainant remained absent, the accused persons can prefer appropriate application as per Section 249 and 256 of the Code seeking discharge from the charges levelled on the ground that the complainant is remaining absent and not cooperating with the trial, however, in the present case, neither the petitioner did not file any such application seeking discharge under Section 227 of the Code nor has filed any such application under Section 249 and 256 of the Code and has accepted the situation which is pending before the learned Trial Court. It was therefore, submitted that without approaching the trial Court first, the present petition is filed seeking quashing of the said criminal proceedings, which is not maintainable and deserves to be dismissed on the said ground alone. 6.7 The learned Advocate Mr. Mehta placed reliance upon the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case as the facts of case before the supreme Court were altogether different from the facts and circumstances of the present case. Mr. Mehta referred to the paragraph 8 of the said judgment in support of his submissions to distinguish the facts, as under:- 8. It was contended for the appellant that the order of this Court permitting the appellant to withdraw the leave petition should be read as it is and that so read the order only means that the Company had withdrawn the leave petition. It was urged that the mere fact that the appellant chose to withdraw the leave petition after some arguments will not alter the nature of the order and that by no stretch of imagination can it be said that the leave petition had been dismissed by this Court. It may be, it was argued that the Company chose to withdraw the leave petition on the ground that this Court was not favourably inclined to grant it or that the Company chose to avail of a better remedy before the High Court under Article 226 of the Constitution, which had a wider scope. 6.11 It was submitted that the aforesaid paragraph clearly goes to show that the SLP was withdrawn with a liberty to avail the remedy before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur Ors. reported in (2007) 1 SCC 486 and Paragraph 8 of the said judgment reads thus:- 8. Whether any new ground has been taken, has to be decided by the Court dealing with the application and no hard and fast rule can be laid down in that regard. But one thing is clear; it is the substance and not the form which is relevant. If some surgical changes are made with the context, substance and essence remaining the same, it cannot be said that challenge is on new or fresh grounds. 6.13 It was submitted the allegations as alleged in the FIR has culminated in subsequent filing of the charge sheet as well as the same is further culminated in the framing of charge by the competent criminal Court which has exercised its discretion and has framed the charge after considering the relevant evidences produced before him, therefore, at this stage, when the charges have been framed by the Trial Court and the case is pending for the trial at the stage of evidence of prosecution, the petitioner cannot challenge the said criminal proceedings by way of a petition under Article 226 of the Constitution of India, more particularly in absence of any such attempt or application made before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t this stage, the criminal proceedings may not be quashed merely because there is a delay in the trial. The fact remains that the petitioner has also enjoyed the said aspect of delay by acting as a mute spectator by not making any such request before the Trial Court or by not raising any grievance before the Trial Court that the complainant is not cooperating with the trial and is not remaining present before the learned Trial Court. In fact, when the petition was filed initially in the year 2018, at that relevant point of time also, the petitioner has sought the main relief seeking disposal of Criminal Case No.15072 of 2010 within a period of six months. In view of the afore-referred set of facts and circumstances of the case as well as in view of the judgment cited in support of the said contention, it was prayed that appropriate direction may be issued to the learned Trial Court to try and decide the said criminal case as expeditiously as possible. 6.17 The learned Advocate Mr. Mehta further submitted that as far as other material aspects and submissions not considered in the first petition is concerned, except the aspect of delay in the Trial Court, all other aspects can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on the said ground. It was submitted that the Court had not considered the earlier petition in the case of Superintendent and Remembrancer of Legal Affairs of West Bengal (supra) on the ground that evidence was to be led before the concerned Trial Court. However, after the withdrawal of the said petition, the evidence was not led and therefore, the Court has considered the quashing petition on merits. It was submitted that in the present case, even the petitioner has also enjoyed the period of delay by being a mute spectator and has not filed any application seeking discharge which is specifically provided under the statute. Therefore, in view of the specific provisions of Sections 227 and 249 and 256 of the Code, the present petition may not be entertained and petitioner may be relegated to the Trail Court to make an application seeking discharge either under Section 227 or under Section 249 and 256 of the Code. 6.20 The learned Advocate Mr. Mehta lastly submitted that reliance placed by the petitioner upon the other cases where the Court has entertained the quashing petition on merits on the facts of those cases and that the concerned accused persons have also made an applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that charge is also not framed. 8.2 The learned Senior Advocate Mr. Pahwa further submitted that the ROC- complainant of criminal Case no. 145 of 2002 has not made any application to separate the case against the petitioner from the case against other accused and there are at least 50 similar cases u/s 63, 68 and 826 of Companies Act are filed against vanishing companies in Ahmedabad and in not a single case, conviction is achieved. 8.3 The learned Senior Advocate Mr. Pahwa submitted that Rojkaam of Criminal Case No. 15072 of 2010 shows that Petitioner has regularly appeared before the Trial Court and the petitioner has applied various times for order for release of Passport from Sessions Court. It was submitted that the petitioner applied for exemption for personal appearance which was granted by order dated 12/03/2018, whereas the Criminal Case No. 145 of 2002 is being conducted at Metropolitan Court, Gheekanta, which is around 1 km from the JMFC Court at Mirzapur, where Trial of Criminal Case No. 15072 of 2010 is being conducted and there is no material to sow that petitioner was issued any summons by the court in Criminal Case No. 145 of 2002 and still petitioner has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd record a conflicting decision It was submitted that in the said judgment it is held that the review is not permissible and in second petition conflicting decision is not permissible and hence, it would apply to a case where the first petition is dismissed then second petition if allowed would be a contradictory decision. It was therefore, submitted that the withdrawal of petition does not amount to dismissal. 8.5 With regard to contention of alternative remedy raised by the respondent, it was submitted that one of the grounds of challenge by the petitioner is violation of right of speedy trial under Article 21, being violation of Constitutional provision, it can be challenged only before the High Court. Reliance was placed upon following observations in case of Abdul Rehman Antulay Versus R.S.Nayak reported in 1992 (1) SCC 225 : AIR 1992 SC 1701, (Para 86 (11)):- An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High court. 8.6 With regard to other grounds also, it was submitted that the availability of alternative remedy is no bar to maintainability of quashing petition u/s 482 of Code. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solve the conflict and it was held that: 6, In our considered view any attempt to explain the law further as regards the issue relating to inherent power of High Court under Section 482 Cr.P.C. is unwarranted. We would simply reiterate that Section 482 begins with a non- obstante clause to state: Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. A fortiori, there can be no total ban on the exercise of such wholesome jurisdiction where, in the words of Krishna Iyer, J. abuse of the process of the Court or other extraordinary situation excites the court's jurisdiction. The limitation is self- restraint, nothing more. We venture to add a further reason in support. Since Section 397 Cr.P.C. is attracted against all orders other than interlocutory, a contrary view would limit the availability of inherent powers under Section 482 Cr.P.C. only to petty interlocutory orders! A situation wholly unwarranted and undesirable. 7. As a sequel, we are constrain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f CRPC was available. Whether an application u/s. 482 of the Code can be dismissed only on the premise that an alternative remedy of filing a revision application u/s. 397 of the Code is available, was the question involved. (7) In case of, Anand Kumar Mohatta Versus State (Govt. Of Nct Of Delhi) Department Of Home, reported in 2019 (11) SCC 706 : AIR 2019 SC 210, FIR was filed on 20/08/2014. Petition for quashing u/s 482 was filed before the High Court which was dismissed by order dated 02/02/2016. Criminal Appeal was filed before the Supreme Court. During pendency of Criminal Appeal, charge sheet was filed on 03/08/18. FIR is filed by Respondent No. 2. High Court dismissed petition holding it to be pre- mature, but the Apex Court held as under: 12. Shri Sanjiv Sen, learned Senior Counsel for the Respondent No.2 submitted that the petition for quashing of FIR was untenable since the proceedings have gone past the stage of FIR and have resulted in a charge sheet. 17. There is nothing in the words of this Section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S. 256 of the Code is not applicable as complainant is represented by a pleader. ANALYSIS 9. Having considered the submissions made on behalf of the respective advocates and considering the materials on record, the following undisputed facts emerge: (I) The petitioner who is a Chartered Accountant was appointed as professional director w.e.f. 12.11.1993 in Sushil Packaging (India) Limited by the board of directors and promoters. (II) The petitioner resigned as a professional director from 07.04.1995. (III) The petitioner being a professional director was not involved in day-to-day affairs of the company nor he has received any benefits from the company. (IV) The petitioner admittedly was never a beneficiary of any of the transactions carried out by the company and therefore, was not responsible for any day-to-day transactions including financial transactions of the company. (V) The petitioner never received any summons in Criminal Case No. 145 of 2002 filed by the Registrar of Companies for offence punishable under Sections 63, 68 and 628 of the Companies Act, 1956, for not filling the balance-sheet, etc. (VI) The petitioner also replied to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n if the earlier application under Sec. 482 of the Code of quashing was made and stood disposed off either as withdrawn or dismissed even. In fact, more than the right of the accused, it is indeed the foremost duty of the High Court to entertain any such subsequent application in the light of changed circumstances as not to do so, would be unnecessarily imposing self-imposed fetters on the extraordinary inherent powers of preventing the abuse of the process of law to secure the ends of justice specially invested by the Legislature in the High Courts itself. (III) In the case of Anil Khadkiwala v. State (Government of NCT of Delhi) reported in AIR 2019 SC 3583, the Apex Court has held that the second application for quashing of the complaint was maintainable merely because of the dismissal of the earlier application. (IV) In the case of Paresh Chaturdas Patel v/s State of Gujarat reported in 2009 (4) GLR 3553, this Court has held as under: 35 It is true that the petitioner has approached this Court earlier by filing Misc. Criminal Application No.242 of 2002 and the same was ultimately withdrawn. However, considerable time was elapsed since the withdrawal of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time for conclusion of trial. 18. The lackadaisical manner of investigation spread over a period of four years in a case of this type and inordinate delay of over eight years (excluding the period when the record of the trial court was in the High Court), is manifestly clear. Thus, on facts in hand, we are convinced that the appellant has been denied his valuable constitutional right to a speedy investigation and trial and, therefore, criminal proceedings initiated against him in the year 1987 and pending in the court of Special Judge, Latur, deserve to be quashed on this short ground alone. (II) In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m any default on the part of the appellant. 30. Thus, on facts in hand, in our opinion, the stated delay clearly violates the constitutional guarantee of a speedy investigation and trial under Art. 21 of the Constitution. We feel that under these circumstances, further continuance of criminal proceedings, pending against the appellant in the court of Special Judge, Muzaffarpur, is unwarranted and despite the fact that allegations against him are quite serious, they deserve to be quashed. (IV) In the case of Moti Lal Saraf V. State Of Jammu and Kashmir reported in 2006 (10) SCC 560, the Apex Court has held as under: 33. It is the bounden duty of the court and the prosecution to prevent unreasonable delay. 34. The purpose of right to a speedy trial is intended to avoid oppression and prevent delay by imposing on the courts and on the prosecution an obligation to proceed with reasonable dispatch. 36. In the instant case not a single witness has been examined by the prosecution in the last twenty six years without there being any lapse on behalf of the appellant. Permitting the State to continue with the prosecution and trial any further would be total abus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first question to be put and answered is who is responsible for the delay? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained on ex parte representation. (5) While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded as may be deemed just and equitable in the circumstances of the case. (10) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that not Fixing any such outer limit in effectuates the guarantee of right to speedy trial. (11) An o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A. R. Antulay's case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time- limits cannot and will not by themselves be treated by any court as a bar to further continuance of the trial or proceedings and as mandatorily obliging the court to terminate the same and acquit or discharge the accused. ] (5) The criminal courts should exercise their available powers such as those under Secs. 309, 311 and 258 of Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial judge can prove to be better protector of such right than any guidelines. In appropriate cases, jurisdiction of High Court under Sec. 482 of CrPC and Arts. 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions. ] (6) This is an appropriate occasion to remind the Union of India and the state governments of their constitutional obligation to strengthen the judiciary- quantitatively and qualitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents are available in the office of CAG and the original documents are available in the office of the Directorate, State Literacy Programme. 31 In the departmental proceeding identical allegation was made that as per the Inquiry Officer Report, an embezzlement of ₹ 4,39,617/- was found to be done by the appellant. 32 During the investigation inspite of several requests made by the Investigating Agency (Police), the records in respect of allegation were not produced. No evidence came against the appellant-Lokesh Kumar Jain, from the file of the education department. As the case was pending since long and there was no possibility of availability of record in the near future, FR No.67/2000 against the appellant was filed before the CJM, Dausa. The CJM, Dausa by his order dated 18th November, 2000 on perusal of Final Report, in exercise of power conferred under Section 156(3) Cr.PC directed the SHO, Dausa to re-investigate the case with the assistance of complainant and to procure the original records. Inspite of order dated 18th November, 2000, for nine years, records were not made available, as apparent from the Inquiry Report dated 15th December,2008. 33 Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on its own facts and circumstances. 33. It is the bounden duty of the court and the prosecution to prevent unreasonable delay. 34 The purpose of right to a speedy trial is intended to avoid oppression and prevent delay by imposing on the courts and on the prosecution an obligation to proceed with reasonable dispatch. 36 In the instant case not a single witness has been examined by the prosecution in the last twenty six years without there being any lapse on behalf of the appellant. Permitting the State to continue with the prosecution and trial any further would be total abuse of the process of law. Consequently, the criminal proceedings are quashed. The appeal is accordingly allowed and disposed of. 14. The facts of the case of the petitioner is similar to the case of Bhagyesh Bhatnagar v/s State of Gujarat in Criminal Misc. Application No. 2403 of 2005, wherein, this court held as under: 12. It appears that in respect of all companies placed on the vanishing companies list, identical first information reports have been filed without actually ascertaining the true position. Consequently, the allegations made in the first information report are very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offences under other enactments, then also, they are free to furnish such information to the same court, to consider the further proceedings with such additional information, but law does not permit to file separate complaint raising identical allegations in the complaint. 13. The sum and substance of all above reported cases are common to the effect that there cannot be a second FIR for the same offences. 14. We are having similar situation in the present case and, therefore, I do not hesitate to held that the impugned FIR is required to be quashed for the reason that the allegations are for the year 1999 onwards only whereas petitioner has resigned in the year 1997, impugned FIR is second one and more particularly complainants respondent no. 2 was very much aware about the activities of the company right from the year 1996, but they waited till the year 2002 - 03 and tried to harass the petitioner by not disclosing the correct information to the police while while filing the impugned FIR, therefore, the petition deserves to be allowed. 16. This Court in the case of K.S. Ranganathan v/s State of Gujarat rendered in Criminal Misc. Application No. 5534 of 2008 has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and other material on record, it appears that the second complaint being FIR No. I -1160/2004 before the Navrangpura Police Station is filed based upon the same set of allegations and factual details for which already one Criminal Case is pending before the Addl. Chief Metropolitan Magistrate. Therefore, submission of the respondent no. 2 that in addition to offences under the Companies Act, when petitioners have committed offences under the IPC, they are entitled to file separate complaints, cannot be accepted if at all the respondent no. 2 is of the opinion that the petitioners shall be charged and tried for the offences under the IPC also, then they could have certainly taken appropriate steps to add such charges in the complaint being Criminal Case No. 91/2002, which is already pending before the Addl. Chief Metropolitan Magistrate, Ahmedabad. It is clear and certain that when the entire allegations are based upon the factual details for which documentary evidence is already available with the complainant/ respondent no. 2, there is no reason for filing fresh complaint before the police authority for further investigation as alleged. 17. There is no averments or allegat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with directions or instructions the Board of Directors of the Company is required to act. The averments made in the complaint are totally silent in this regard and when the complaint is considered in connection with said 4 accused Nos. 8, 9, 13 and 15 and when they are not shown to be falling into any of the aforesaid categories, obviously, they cannot be held answerable for the alleged offence under the Companies Act. Merely because they are Directors, the cannot be held responsible. There are two more provisions in S.5 indicating that a person may be charged by the Board with responsibility of complying with the provisions of the Companies Act or a Company that does not have any of the officer specified over here, then Director or Directors, who may be specified by the Board in this behalf can be held answerable. As this is not the situation, in the instant case, obviously, these provisions will not be attracted. 24 Now comes the question of offences under the Indian Penal Code. 27 Apart from this, when a Company is said to be an offender for the purpose of offences under the Indian Penal Code, merely because a person happens to be a Director to consider his or her invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany way brick on 08.05.1992 and the notice under reference was issued by the opponent on 01.06.2002 i.e. after more than ten years. Even if one takes the view that law of limitation is not applicable to the proposed action, the same is clearly barred by delay and latches and the Court is certainly reluctant to take cognizance of alleged defaults after the expiry of period of more than ten years. 20. In Criminal Misc. Application No.1032 of 2007 in the case of Gaurang Shethwala v/s State of Gujarat , the Court has held as under: 14. We are having similar situation in the present case and, therefore, I do not hesitate to held that the impugned FIR is required to be quashed for the reason that the allegations are for the year 1999 onwards only whereas petitioner has resigned in the year 1997, impugned FIR is second one and more particularly complainants respondent no. 2 was very much aware about the activities of the company right from the year 1996, but they waited till the year 2002 - 03 and tried to harass the petitioner by not disclosing the correct information to the police while filing the impugned FIR, therefore, the petition deserves to be allowed. 21. Wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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