9911796707
TMI Blog2024 (4) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004 (11) TMI 564 - SUPREME COURT ], wherein it has been recorded in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra case holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided. So far as the ground that the petitioner did not specifically deny the execution of the MoU in the proceedings before the learned NCLT is concerned, it is pertinent to note that the rejoinder filed on behalf of the petitioner before the Company Law Board was placed on record wherein in paragraph 2 thereof, it was categorically stated that the MoU is a forged and fabricated document and does not bear the true signatures of the petitioner. It is also pertinent to note that the material placed by the Investigating Officer along with the chargesheet filed before the learned Trial Court was not placed on record before the learned NCLT. The impugned order dated 17.08.2019 passed by the Learned Trial Court is set aside. The matter is remanded back to the learned Trial Court for fresh consideration on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ten shares of the aforesaid company, however they have failed to disclose as to how were the shares allotted to them. vi. After investigation chargesheet against respondents no. 2 to 4 under Sections 420/406/468/471/384/120B, of the IPC was filed before the learned Trial Court. 3. Based on the aforesaid chargesheet, the learned Trial Court, on the point of charge, observed that the facts mentioned in the chargesheet qua the accused persons were also the subject matter of C.P. No. 104/ND/2011 titled Shiv Raj Singh Vs. M/s Kemptv Konstruction Pvt. Ltd. and Ors. before the learned National Company Law Tribunal ( NCLT ), and observed as under: It is relevant to mention here that the facts mentioned in the charge sheet qua the accused persons were also the subject matter before the National Company Law Tribunal, in the matter of Shiv Raj Singh Vs. M/s Kempty Konstruction Pvt. Ltd. and Ors., wherein the Ld. Tribunal held that:- From the pleadings on record, documents relied, and upon hearing arguments addressed by the Ld. Senior counsels, this Bench is of the opinion that the resignation of the petitioner cannot be opined as being fraudulent. His allegations of removal as a Director of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal was challenged before the National Company Law Appellate Tribunal, New Delhi without success. The same was then challenged before the Hon'ble Supreme Court, however, the complainant failed to get any relief from the Hon'ble Supreme Court. It Is observed here that the National Company Law Tribunal exercises the power of Civil Court and has an exclusive domain over the company matters. Hence, this Court has the benefit of findings on facts given by National Company Law Tribunal, which In fact dealt the said allegations in detail and gave the findings thereon. The findings on facts by National company Law Tribunal shall prevail upon the criminal Court and therefore, this Court cannot re-examine the same facts and take a different vide. Here, reliance is placed upon the judgment of the Hon ble Supreme Court in the matter of Radheshyam Kejriwal vs. State of West Bengal, (2011) 3 SCC 581, wherein the Hon'ble Supreme Court held in case of exoneration on merits in adjudication of civil nature, where the allegations are found not to be sustainable at all and person concerned is held Innocent, the criminal prosecution on the same set of facts and circumstances cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005, respondent no. 2 had illegally allotted 10 equity shares each of the aforesaid company to respondents no. 3 and 4, who as per the chargesheet filed in the present case, are relatives of respondent no. 2. 7. It was further pointed out by learned Senior Counsel for the petitioner that respondent no. 2 had unlawfully transferred the petitioner s 998 equity shares of the aforesaid company to himself on 28.09.2008 after illegally appointing himself as a director on 25.09.2008 by misusing the digital signatures of the petitioner. Pursuant to the above the petitioner filed a complaint dated 26.09.2011 with the Deputy Commissioner of Police (Crime), New Delhi with respect to the illegal acts committed by respondent no. 2, and the same was converted into an F.I.R. bearing no. 177/2013 on 19.07.2023. Pursuant to the completion of the investigation a chargesheet dated 22.02.2014 had been submitted before the learned Chief Metropolitan Magistrate, Rohini Court, New Delhi on the ground that there is sufficient evidence against respondents no. 2 to 4 for their prosecution. It was also urged that the learned Trial Court did not appreciate the fact that the alleged resignation letter of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which can be done only during the trial, which- means after charges have been framed. 9. Learned Senior Counsel for the petitioner also highlighted that the impugned judgement passed by the learned Trial court suffers from misinterpretation of law and the observations made therein are not conclusive in nature as per Para 17 of the learned NCLT s judgement. However, the petitioner has filed a petition under Section 59 of the Companies Act 2013 and the said petition is pending adjudication before the learned NCLT. It was further contended that the learned Trial Court has erred in placing reliance on Radheshyam Kejriwal (supra), as the facts and circumstances of the said case were different from the present case. The issue in Radheshyam Kejriwal (supra) was regarding erstwhile Foreign Exchange Regulations Act, 1973 ( FERA ) and the subsequent breach of its regulations. FERA had its own Investigating Agency under which the concerned Enforcement Officer, after conducting the departmental enquiry filed its report as per the investigation done by him. The adjudication done by a quasi-judicial body such as the learned NCLT cannot be said to be the same as the adjudication done in a depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject-matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Sections 41 to 43 of the Evidence Act, 1872, dealing with the relevance of previous judgments in subsequent cases may be taken into consideration. 11. Learned Senior Counsel for the petitioner also submits that the reply filed on behalf of the respondents is primarily based on an alleged Memorandum of Understanding ( MoU ) dated 24.09.2008 executed between the petitioner and respondent no. 2 in their personal capacity. The said MoU is a private arrangement between the parties, if at all, and has no bearing on the affairs of the petitioner s company. It was further pointed out that the alleged amount of Rs. 80,00,000/- purportedly due from the petitioner to respondent no. 2 has not even been mentioned in the MoU so as to quantify the consideration with respect to the transfer of 998 equity shares held by the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent no. 2 submitted that the present dispute is civil in nature and Section 430 of the Companies Act, 2013 has explicitly excluded the jurisdiction of any other Court in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine and hence findings of the learned NCLT shall stand on highest footing as the Tribunal exclusively deals with cases on company matters. It was further pointed out that issue of jurisdiction as to whether a Civil Court or the learned NCLT are competent to handle company matters came up for consideration before a Coordinate Bench of this Court in SAS Hospitality Pvt Ltd v. Surya Constructions Pvt Ltd., 2018 SCC Online Del 11909 and it was held as under: 15. The bar contained in Section 430 of the 2013 Act is in respect of entertaining any suit , or any proceedings which the NCLT is empowered to determine . The NCLT in the present case would be empowered to determine that the allotment of shares in favour of the Defendant Nos. 5 to 9 was not done in accordance with the procedure prescribed under Section 62 of the 2013 Act. The NCLT is also empowered to determine as to whether rectification of the register is required to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any other law for the time being in force, by the Tribunal or the Appellate Tribunal. The effect of the aforesaid provision is that in matters in respect of which power has been conferred on NCLT, the jurisdiction of the civil court is completely barred. Rejoinder on behalf of the Petitioner 17. Learned Senior Counsel appearing on behalf of the petitioner submitted that the alleged resignation letter dated 20.10.2008 filed with the RoC in Form No. 32 has not been signed by the petitioner. It was argued that the letter of resignation was dated 20.10.2008, however, the aforesaid form was uploaded in the year 2009. It was further submitted that the company secretary Sh. A.K. Popli in his statement to the Investigating Officer has stated that resignation letter dated 20.10.2008, was not brought to his knowledge at the time of filing the documents in the period November-December 2009 Analysis and Findings 18. Heard learned counsel for the parties and perused the record. The relevant portion of chargesheet records as under: Documents collected during investigation revealed that in the annua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009 w.e.f. back dates i.e. 2006 onwards. Form 32 related to the removal of the complainant from Board of Directors is found to be filed by the accused Kamal Jain on dated 07-01-2010. During investigation, accused Kamal Jain has admitted filing of above said form no. 32 vide which complainant Shiv Raj Singh was removed from the Directorship of the company. Accused was directed to produce the original of the documents i.e AGM etc. as well as resignation letter of the complainant, if any, with him but he denied having the original resignation letter in his possession claiming all records of the company are with the complainant himself. On the other hand complainant denied having ever resigned from the Board of the Directors of the company as well as transferring his shares in favour of accused Kamal Jain. Investigation revealed that the resignation letter of the complainant filed by Kamal Jain with the ROC is unsigned and 'sd' is written at the place of the signature of Shiv Raj Singh. Complainant has alleged that accused Kamal Jain being C.A. of their company was handling the matters related to the filing of the documents with the ROC as well as other agencies and he got man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , should have been filed with the ROC soon after the resignation of Shiv Raj Singh or prior to the filing of any other documents after the date of his resignation. It clearly indicates that the documents related to the appointment of accused Kamal Jain as Director in the above said company as well as transfer of 998 shares of the said company owned by the complainant in favour of accused Kamal Jain were managed to got filed with the ROC from the side of the complainant himself. Resignation letter of the complainant from the post of Director of the company M/s Kempty Konstructions Pvt. Ltd., if any, was concealed from Sh. A.K. Popli at the time of filing. the documents by him and the said letter same was filed later on by the accused Kamal Jain in January, 2010 in his digital signatures being Director of the said company. investigation revealed that the resignation letter filed with the ROC by accused Kamal Jain does not. bear the signature of the complainant and merely 'sd' is written at the place of the signature of Shiv Raj Singh. On examination, complainant denied having ever signed such resignation letter and alleged that the accused Kamal Jain has prepared and filed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ures of the Directors of the company. Accused Kamal Jain as well as other Directors of the company were directed to produce the original of the said papers signed by the concerned directors but none of them could produce the same. Hence, said documents are proved to be fake/forged. (emphasis supplied) 19. Without going into the details of the present case, this Court is of the considered opinion that the learned Trial Court while passing the impugned order did not take into consideration the aforesaid facts as mentioned in the chargesheet as well as other material placed on record by the Investigating Officer. So far as the reliance placed by respondent no. 2 to 4 on the judgment of Hon ble Supreme Court in Satish Mehra (supra) is concerned, it is relevant to note that the said judgment has been overruled by the Hon ble Supreme Court in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 , wherein it has been recorded as under: 18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced. The scheme of the Code and object with which Section 227 was incorporated and Sections 207 and 207-A omitted have already been noticed. Further, at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n record wherein in paragraph 2 thereof, it was categorically stated that the MoU is a forged and fabricated document and does not bear the true signatures of the petitioner. It is also pertinent to note that the material placed by the Investigating Officer along with the chargesheet filed before the learned Trial Court was not placed on record before the learned NCLT. 21. In view of the above, the present petition is allowed. The impugned order dated 17.08.2019 passed by the Learned Trial Court is set aside. The matter is remanded back to the learned Trial Court for fresh consideration on the point of charge. The learned Trial Court shall give opportunity to the parties and thereafter pass appropriate orders in accordance with law. It is clarified that this Court has not expressed any opinion on the merits of the case. 22. The parties are directed to appear before the learned Trial Court on 22.04.2024 at 2:30 PM. With the aforesaid directions, the petition is allowed and disposed of. 23. Pending application(s), if any, also stand disposed of. 24. Copy of this judgment to be sent to the learned Trial Court for necessary information and compliance. 25. Judgment be uploaded on the we ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
