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TMI Blog2004 (3) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 3820/03, 3836/03, 3837/03 and 3838/03, are similar petitions filed by the accused No. 2 praying the Court for setting aside the order dated 4-2-2003 passed in CC No. 2141/2003, 2139/2003, 2140/2003 and 2142/2003 on the file of the 13th Addl. C.M.M., Bangalore, wherein the learned Magistrate had taken cognizance of the case against the accused No. 2 -- petitioner and others for the similar offence. 5. The Crl. Pet. No. 3821/03 filed by the accused No. 1 and 2 praying the Court for setting aside the order dated 26-11-2002 passed in CC No. 21668/2002, on the file of the 14th Addl. C.M.M., Bangalore, wherein the learned Magistrate had taken cognizance of the case against the accused petitioners and others for the similar offence. 6. The Crl. Pet. No. 3842/03, 3843/03, 3844/03, 3845/03 and 3846/03 are similar petitions filed by the accused No. 1, 4, 5, 7 praying the Court for setting aside the order dated 4-10-2002 passed in CC No. 27331/2002, 27333/2002, 27334/2002, 27335/2002 and 27336/2002, on the file of the 14th Addl. C.M.M., Bangalore, wherein the learned Magistrate had taken cognizance of the case against the accused -- petitioners and others for the similar offence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the prosecution. The learned counsel also contends that the learned Magistrate in each of these cases has made use of printed format. The settled law in this regard is to the effect that the order of taking cognizance is a judicial act and the same has to be exercised after due application of mind. The material on record clearly discloses that there is absolutely no application of judicial mind at all by the lower Court. The learned counsel also contends that there is absolutely no averment in the complaint that the petitioners had been in charge of the affairs of the company and had been responsible for conduct of the business of the Company. Such being the case the learned Magistrate had not been justified at all in passing the order impugned. The learned counsel also contends that the accused Prakash Jain, has placed on record the certified copy of the documents issued by Registrar of Companies and the same substantiate his contentions; 1. 2003 SCC (CRI) 151; 2. ILR (2002) 1 Kant 475 : (2002 AIR--Kant HCR 544 ; 2002 Cri LJ 1353); 3. ILR (1997) Kant 3239; 4. 1983CriLJ159 ; 5. 2003 Cri LJ 3292 (Guj); 6. ILR (2000) Kant 4773; 7. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso been responsible for the affairs of the company. Such being the case, the petitioners cannot now contend anything to the contrary. Moreover, the material on record also shows that the grounds urged by the petitioners in these cases will have to be thrashed out at full dressed trial. 17. The learned counsel for the complainant-respondents in Crl. Pet. Nos. 3679/ 03, 3680/03, 3681/03, 3682/03, 3683/03 and 3684/03, in particular, contended that there has been ample material to show that subsequent to the alleged date of resignation of the accused-Pattabhiraman, the Bank had honoured other cheques issued by the said accused and in the 9th Annual Report of M/s. S. N. Finance Limited, shows that Smt. Jyotsna Pattabhiraman, as a Board of Director of the accused Company and such being the case the contentions raised by the accused in this behalf cannot be considered by this Court at this stage. 18. All the learned counsel also contended that the accused-company had received deposits from the public and the accused cannot get-away from the prosecution on technical grounds. 19. The learned counsel also relied upon the following decisions in support of their contentions; 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsible for conduct of the business of the company. Thirdly, it is contended that so far as the petitioner in Crl. P. Nos. 3819, 3820, 3836, 3837, 3838, 3821/2003, first petitioner in Crl. P. Nos. 3842, 3843, 3844, 3845, 3846/2003, second petitioner in Crl. P. No. 3839/2003, and fourth petitioner in Crl. P. No. 3840/2003 is concerned, he ceased to be the Director of the Company with effect from 4-10-2000. The other petitioners in Crl. P. Nos. 3842, 3843, 3844, 3845, 3846, 3839, 3840/2003 are nothing to do with the affairs of the company and they are in no way liable to answer the claim of the complainant in each of these cases. The learned counsel also contended that the petitioners in Crl. P. Nos. 2046 and 2047/ 2003, second petitioner in Crl. P. Nos. 3679, 3680, 3681, 3682, 3683 and 3684/2003 had ceased to be Directors of the Company with effect from 20-3-2002, and the other petitioner in the said bunch of cases, by name Smt. Jyotsna Pattabhiraman, did not accept the post of Director in the accused company at all and as such she has nothing to do with the affairs of the accused company and she is not liable for prosecution in any of these cases. 27. In the first instance, let m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raigned as accused in cases of this nature. Moreover, it is an elementary principle of law that the Court, while considering a case of this nature, should go by substance of the complaint and should not be hyper-technical in. this regard. In this regard, it is also necessary to mention a decision of the Apex Court reported in 1999CriLJ1833 , rendered in the case of Rajesh Bajaj v. State NCT of Delhi, wherein it has been held that the complainant is not required to reproduce verbatim of the Ingredients of the offence alleged in the body of the complaint and when the averments in the complaint prima facie make out a case for investigation, quashing of FIR is not proper. In view of the facts and circumstances of the case and in view of the law laid down by the Apex Court in the said decision and in view of the discussion made supra, in the opinion of this Court, it would not be proper for this Court to act upon the submission of the learned counsel for petitioners. Moreover, there has been ample material to show that each of the said petitioners had been responsible for conduct of the business of the accused company and had also been in charge of the affairs of the company. Under thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that a proceeding under Section 482 Cr. P.C. cannot be allowed and proceedings before the criminal Court cannot be quashed against some of the Directors on the ground that they cease to be the Directors of the Company, where there has been specific averment to the effect that all the accused had been in charge of and responsible for conduct of business of the company at the relevant time. Moreover, in these cases, in addition to the specific averment, there has been sufficient material in this regard. Having regard to the facts and circumstances of the case, taking cue from the ratio laid down in the said decisions, this Court is of the considered opinion that the facts in issue will have to be thrashed out at the full dressed trial and this would not be the stage for this Court to interfere with the proceedings before the trial Court and grant relief to the petitioners by exercising inherent powers. 30. Having regard to the peculiar facts and circumstances of the cases, in the opinion of this Court, the ratio laid down in the other decisions cited by the Bar cannot be pressed into service to spell out a case in favour of the petitioners. It is also necessary to mention the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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