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TMI Blog2024 (3) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... ty No. 2 has directly transferred the amount in the account of accused company, having considered the negotiation took place between them. However, present applicants came with the case that it was a tripartite agreement between the parties involving one more company namely M/s Shubhkamna Builtech Private Ltd. Thus, it appears that there was circuitous route in transferring the money through another corporate being M/s Shubhkamna Builtech Private Ltd. It would not be befitting to make any comment on the summoning order, however, technicality, if any, is not sufficient to drop the entire criminal proceeding initiated at the behest of opposite party No. 2. In this eventuality, it is always open to the present applicant to raise this objection before the court concerned, who is not bound with the police report submitted under Section 173 CrPC and the court can issue summons, having considered the facts and circumstances of the case and the material available on record, against the other person as well, who has not been arraigned in the charge sheet. He would be at liberty to take action under Section 319 CrPC. Sections 190 and 204 of the CrPC does not restrict the jurisdiction of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icants in order to prove the innocence of the present applicants which can more appropriately be scrutinized by the trial court. In the facts and circumstances of the present case, there are no abuse of the process of Court nor any justifiable ground to pass an order so as to secure the ends of justice. No ground is made out warranting indulgence of this Court in exercise of inherent jurisdiction under Section 482 CrPC to quash the criminal proceeding as prayed for. The instant application under Section 482 CrPC, being misconceived and devoid of merits, is dismissed. - Hon'ble Dinesh Pathak, J. For the Applicant : Manish Tiwary, Ashwini Kumar Awasthi For the Opposite Party : G.A., Kuldeep Kumar, Vikas Chandra Srivastava ORDER HON'BLE DINESH PATHAK, J. 1. Heard Sri Dilip Kumar and Sri Manish Tiwary, learned Senior Advocates assisted by Sri Syed Imran Ibrahim and Ms. Katyaynini, Advocates, learned counsel for applicants, Sri V.P. Srivastava and Sri Anil Bhushan, learned Senior Advocates assisted by Sri Alok Kumar Yadav and Sri Vikash Chandra Srivastava, learned counsel for Opposite Party No. 2, learned AGA and perused the record. 2. Present applicants have invoked the inher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) through RTGS from Bank of Baroda, Sector 63, NOIDA in favour of the accused company. (v). As per understanding between the parties, land should have been acquired till last 2014. However, till date, said land, as promised, has not been acquired and the money received had fraudulently been utilized by the accused company and their directors, without consent of the first informant, to purchase the shop within the premises of NOIDA Commercial Complex, Plot No. A-2, Sector 38A, NOIDA and remaining amount has been utilized in some other work. (vi). While the first informant came to know qua misuse of money, it sent legal notice to the accused to return money. In reply to the aforesaid notice, the accused have informed that money received from the first informant has been transferred in the account of M/s Shubhkamna Builtech Private Ltd. (vii). While the first informant approached to M/s Shubhkamna Builtech Private Ltd. and enquired in this regard, its director Mr. Piyush Tiwari has furnished an affidavit that he has not received any such money from the accused company namely M/s Dignify Builtech Private Ltd. for or on behalf of the first informant. 4. Learned counsel for the applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition No. 359 of 2016, Ultra Tech Cement Private Ltd. Vs. Brys International Private Ltd. has appointed provisional liquidator of the first informant company (opposite party No. 2) vide its order dated 20.9.2017 directing him to take over all the assets, book of accounts and record of the company. The provisional liquidator, subsequently, stepped into shoes of the official liquidator. Appointment of provisional liquidator was brought to the knowledge of NCLT, New Delhi, who has passed order dated 15.1.2018 dismissing the insolvency resolution process. NCLT has observed that the issued raised by the petitioner has to be examined by the trial court, therefore, no case is made out for insolvency resolution process. (v). Once the provisional liquidator has been appointed by the court competent, director of opposite party No. 2 has no locus to file any criminal proceeding or any other case before the court competent. All power are vested with the provisional liquidator to sue or to be sued. In this respect, learned counsel for the applicants has referred to the relevant Sections 450, 456 and 457 of Companies Act, 1956. (vi). Having been unsuccessful in proceeding before the NCLT, oppos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court in the matter of Vimla Dhiman Vs. State, 2013 [4] JCC 2528 . Learned counsel for the applicant has further relied upon the case of Ravindra Pal Singh Vs. Punjab Tractor, 1987 (1) RCR 680, Jalpa Prashad Vs. State of Haryana, 1987(2) RCR 427, Sohan Singh Vs. State of Punjab 1983 (2) RCR 544, Vimla Dhiman Vs. State, 2013(4) JCC 2528 and Wolfgang Reim and others Vs. State and others 2012 (3) JCC 2042 . (x). It is further submitted that this Court has got jurisdiction to consider the documents filed by the applicants at this juncture as well in the present application under Section 482 Cr.P.C., as held by Hon ble Supreme Court in the matter of Prashant Bharti Vs. State of MCT and Delhi, AIR 2013 Supreme Court 2753 and Ramesh Thakur Vs. State (NCT of Delhi), 2013 [2] JCC 1411 . (xi). Lastly it is submitted that crime of criminal conspiracy as averred in the FIR can not be made out merely on the basis of speculation or suspicion. Prima facie evidence is required in this respect. In support of this submission, learned counsel has relied upon the case of Hira Lal Jain Vs. Delhi Administration, 1973 SCC (Cri) 309 . 5. Per contra, learned counsel for the opposite party No. 2 has vehem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idator was appointed, that too, only for the purpose to preserve the asset of the opposite party No. 2. (vii) It is further submitted that, even during the appointment of provisional liquidator, Managing Director of the company would be entitled to institute criminal proceedings against the accused under the provisions of CrPC read with IPC. There is no bar in the Companies Act, 1956 and, subsequently, in new Act, 2013 or under the Insolvency and Bankruptcy Code, 2016. (viii) Section 554(1)(a) of Companies Act, 1956 is pari materia to Section 290 (f) of the Companies Act, 2013 as well as Section 35 (k) of Insolvency and Bankruptcy Code 2016, which defines the power of official liquidator, who is appointed when the Company Judge/Tribunal passed the winding up order. However, in the given circumstances, no winding up order has been passed. In support of his case, learned counsel for the opposite party No. 2 has relied upon the case of Jaswantrai Manilal Akhaney Vs. State of Bombay reported in AIR 1956 SC 575 . (ix) It is next contended that Section 450(3) of Companies Act, 1956 is pari materia to Section 275 (3) of Companies Act, 2013 which provides that company court/tribunal can li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute in transferring the money through another corporate being M/s Shubhkamna Builtech Private Ltd. Bare perusal of the FIR lodged by opposite party No. 2 indicates that:- (i) Opposite party No. 2 is in the business of civil construction work and was looking for enormous chunk of land to develop housing project. Likewise accused company namely M/s Dignify Builtech Private Ltd. is working in real estate business as well. (ii) Accused No. 2 (applicant No. 1 herein) approached opposite party No. 2 with a proposal to acquire the land near NOIDA Express Way for the purposes of developing group housing projects and stated that in this area there is possibility of huge investment in real estate. (iii) Accused No. 2 to 4 (applicants No. 1 to 3 herein) have negotiated with the directors of the first informant and convened several meetings in the office of first informant, who have shown their willingness to purchase the proposed land near NOIDA Express Way. Having been satisfied with the land shown to the director of the opposite party No. 2 and its documents, they have consented to purchase the land and, accordingly, transferred money to the tune Rs. 8,80,00,000/- (Rs. Eight Crores and Eigh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present applicants for the offence under which they have been inculpated. 9. So far as the first submission qua maintainability of the criminal proceeding against the directors of accused company (M/S Dignify Buildtech Pvt. Ltd.) is concerned, learned counsel for the applicants submits that the directors of the company cannot be held directly responsible for any wrong done on behalf of the company. Cognizance order has been passed only against the present applicants (directors of the company) in a very cursory manner without proper application of mind. The criminal case cannot be set into motion as a matter of course. In criminal law, there is no concept of vicarious liability, therefore, same cannot be cast upon the directors of the company for alleged offence committed by the company. In support of his submission, learned counsel for the applicant has placed reliance upon the case of GHCL Employees Stock Option Trust (supra) and SK Alagh Vs. Uttar Pradesh and others, (2008) 5 SCC 662. In both the aforesaid cited case, Hon ble Supreme Court , having considered the allegation mentioned in complaint , came to the conclusion that general and bald allegations have been levelled ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n has been made against them in the FIR, wherein applicant No. 1 has approached to opposite party No. 2 with its proposal to acquire the land and, thereafter, the applicant No. 1, 2 and 3 all participated in the meeting to convince the directors of opposite party No. 2 in order to receive money on the pretext of purchasing/acquiring land near NOIDA Express Way. It is apposite to mention that transaction of money has not been denied, however, only the route of transferring the money has been questioned, which is a matter of fact. 11. Learned Senior Counsel for applicants, while questioning the maintainability of the criminal proceeding, has also raised the legality of the charge sheet and cognizance order. It has been submitted that company accused has not been arraigned in the charge sheet, therefore, without inculpating the company in the crime, there directors cannot be summoned. In support of his submission, learned Senior Counsel for the applicants has relied upon the case of GHCL Employees Stock Option Trust (supra) and the case of R. Kalyani Vs. Janak C. Mehta Ors in criminal appeal No. 1694 of 2008 decided on 24.10.2008, 2009 (1) SCC (Cri) 567, Ravindranatha Bajpe (supra) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for personal gain of the present applicants. I am of the view that there may be a financial transaction but from the facts and circumstances of the present case criminal offence is primafacie made out under the several sections of the IPC. In the matter of Indian Oil Corporation (supra) Hon ble Supreme Court summarised the principles to interfere in these matters in exercise of jurisdiction under sec.482 CrPC. For ready reference, paragraph 12 of the aforesaid judgment is quoted hereinbelow:- 12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre [1988 (1) SCC 692], State of Haryana vs. Bhajanlal [1992 Supp (1) SCC 335], Rupan Deol Bajaj vs. Kanwar Pal Singh Gill [1995 (6) SCC 194], Central Bureau of Investigation v. Duncans Agro Industries Ltd., [1996 (5) SCC 591], State of Bihar vs. Rajendra Agrawalla [1996 (8) SCC 164], Rajesh Bajaj v. State NCT of Delhi, [1999 (3) SCC 259], Medchl Chemicals Pharma (P) Ltd. v. Biological E. Ltd. [200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al offence or not. 13. In paragraph 12(v) of the aforesaid judgement, it is unequivocally observed that a criminal prosecution or contractual dispute apart from the financial cause of action for seeking remedy in civil law may also involve a criminal offence. Applying the ration decided by Supreme Court in the given circumstances of the present case, in my considered opinion, prima facie, the present applicants, working as a directors of the company, have received money from opposite party No. 2 intending to purchase the land for opposite party No. 2 so that it could develop housing project over there, however, they misused the said fund for their personal gain by purchasing shop at different places and the fraudulently shown the return of money to the third party namely M/s Shubhkamna Builtech Private Ltd. 14. In support of his second submission, learned Senior Counsel for the applicant pressed the order dated 20.9.2017 passed by Hon ble Delhi High Court in company petition No. 359 of 2016 whereby provisional liquidator has been appointed for opposite party No. 2 namely M/s Brys International Private Ltd. On the premise of appointment of provisional liquidator, it has been submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings should not have been initiated without sanction of the court competent. Even otherwise, at later stage, company petitioner wherein provisional liquidator has been appointed was dismissed. This Court is not oblivious to the fact that FIR was lodged on 14.3.2018 during pendency of the company proceeding which was ultimately dismissed on 27.8.2018. Even otherwise, there is no restriction under law to set the criminal proceeding into motion by any person. However, in my considered opinion, criminal proceedings are dealt with under the Code of Criminal Procedure. Even assuming that there is requirement of prior sanction of the court competent to institute a case on behalf of company under liquidation, no limitation has been imposed on the power of the court concerned to entertain the criminal prosecution launched in the ordinary course under the provisions of the code of criminal procedure. Provision relating to the prior sanction before filing litigation on behalf of the company is required only to ascertain the financial liabilities of the company and to secure its funds. In the matter of Jaswantrai Manilal Akhaney (supra), Hon ble Supreme Court has expounded that where a pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in Sections 195 to 199 of the CrPC. These specific provisions clearly indicate that in the absence of any such statutory provision, a locus standi of a complainant is a concept foreign to criminal jurisprudence. In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission marde punishable by any law for the time being in force [See Section 2(n), CrPC] is not merely an offence committed in relation to the person who suffers harm but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendetta or vengeance. If such is the public policy underlying penal statutes, who brings an act or omission made punishable by law to the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... canon of construction permits the court to go in search of a hidden or implied limitation on the power of the Special Judge to take cognizance unfettered by such requirement of its being done on a police report alone. In our opinion, it is no answer to this fairly well-established legal position that for the last 32 years no case has come to the notice of the court in which cognizance was taken by a Special Judge on a private complaint for offences punishable under the 1947 Act. If some-thing that did not happen in the past is to be the sole reliable guide so as to deny any such thing happening in the future, law would be rendered static and slowly wither away. 7. The scheme underlying Code of Criminal Procedure clearly reveals that anyone who wants to give information of an offence may either approach the Magistrate or the officer in charge of a police station. If the offence complained of is a non-cognizable one, the police officer can either direct the complainant to approach the Magistrate or he may obtain permission of the Magistrate and investigate the offence. Similarly anyone can approach the Magistrate with a complaint and even if the offence disclosed is a serious one, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent No. 2 against the present applicant is maintainable and learned Magistrate has rightly taken cognizance on the police report submitted under Section 173 CrPC. On the facts as mentioned in the FIR prima facie commission of offence is made out against the present applicants, who are the directors of the accused company and were throughout instrumental in inducing the present applicant to purchase the land situated near NOIDA Express Way and dishonestly misused the money for other work which they had received from opposite party No. 2 in lieu of transferring the land which was agreed upon between the parties to be purchased for opposite party No. 2. Disputed question of fact has been raised by the learned counsel for the applicants in order to prove the innocence of the present applicants which can more appropriately be scrutinized by the trial court. In the facts and circumstances of the present case, I neither found any abuse of the process of Court nor any justifiable ground to pass an order so as to secure the ends of justice. No ground is made out warranting indulgence of this Court in exercise of inherent jurisdiction under Section 482 CrPC to quash the criminal proceeding a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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