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TMI Blog2023 (5) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... gement under Section 241 read with Sections 242, 246, 339, 340, 341, 447, 450, 120, 207, 208 and 56 of the Companies Act was instituted in the year 2018 against the present petitioners. During pendency of the said company petition the present respondent filed an interim application No.124/2019 under Sections 119(4) read with Section 119(3) of the Companies Act, 2013 for issuance of directions to accused No.2 and 3 therein to provide certified copies of Resolution as well as minutes of Annual General Meeting conducted by the accused No.1/Company therein on 30.09.2018. 3. In reply to the said interim application, the accused therein specifically submitted that they have sent an electronic mail with an attached letter dated 20.12.2018 whereby the complainant therein was advised to collect copy of minutes of Annual General Meeting dated 30.09.2018 from the office of accused No.1 therein on payment of requisite fees i.e. Rs.50/- during office hours on 21.12.2018. Further in the reply, it was submitted that the accused therein had again sent an electronic mail dated 26.12.2018 with an attached letter dated 20.12.2018 whereby the complainant therein was again advised to collect the copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en given only that Court/Tribunal or to some other Court/Tribunal to which its subordinate is authorized to file complaint in writing for the offence of giving false evidence. On this count, the jurisdiction of the Sessions Court in taking cognizance of a complaint filed by a private person is without jurisdiction. 8. It has also been argued that for the allegations of offence relating to giving of false evidence before the Court/Tribunal a special procedure that needs to be followed by that Court or Tribunal has been prescribed under Section 340 of Cr.P.C. and it is to be observed mandatorily before filing any complaint by the Court/Tribunal under Section 195 of Cr.P.C. for any Court authorized to take cognizance and thus, it was for the National Company Law Tribunal, Indore Bench to have followed the provisions as provided under Section 340 of Cr.P.C. and the complaint was required to be filed at the instance of National Company Law Tribunal, Indore Bench. 9. It was also argued that for the offences alleged to have been committed under Section 449 of the Companies Act, 2013 no procedure has been prescribed under the Companies Act, however Section 438 of the Companies Act, 2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 449 of Companies Act, the procedure as prescribed under Section 193 of Cr.P.C. which also relates to production of false evidence is not required to be followed in view of the non-bstenate clause contained under Section 436 of the Companies Act. 13. It has further been argued that Section 439 (2) of Companies Act specifically spells out the person who can file a complaint before the Special Court which includes the 'Registrar, a share holder or a member of the Company or a person authorized by the Central Government in that behalf, thus, under the Companies Act, there is a specific provision as to who can file a complaint and the complainant/respondent being covered under the aforesaid category, the complaint is very well maintainable and no illegality has been committed by the Sessions Court in taking cognizance and issuance summons. 14. Heard learned counsel for the parties and perused the record. 15. Before adverting to the rival contentions, this Court deems it necessary to analyse the provisions of Companies Act and the Code of Criminal Procedure. For ready reference Section 435. (1) The Central Government may, for the purpose of providing speedy trial of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public justice and for offences relating to documents given in evidence.(1) No Court shall take cognizance- (a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or (ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in subclause ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complaint and the complainant/respondent being one of the Directors (shareholders/members) of the accused/petitioner company could maintain the complaint.
20. So far as the contention of the counsel for the petitioner that learned IX Additional District and Sessions Judge, Gwlior while taking cognizance of the matter and issuing summons had not applied its judicial mind is concerned, it appears that the learned Special Judge though appears to have taken congnizance only under Section 449 of IPC but since it is a private complainant, it was incumbent upon the learned Special Judge to have assigned proper reasons while taking cognizance and mere writing that appropriate grounds for taking cognizance appears in the present matter would not suffice, therefore, in the light of the judgment passed by Hon'ble Apex Court in the matter of Pradeep S. Wodeyar (Supra), this Court deems it fit to set aside the order dated 27.08.2022 and relegate the matter to the Special Judge to pass a reasoned order afresh while taking cognizance.
21. With the aforesaid observations and directions, the petitioner is partly allowed and disposed of.
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