This Criminal Original petition has been filed under Section 482 of Cr.P.C., seeking to set aside the order passed by the Judicial Magistrate, Kodaikanal, dated 01.04.2010, in connection with the case in C.C.No.27 of 2004.
2.It is averred in the petition that the petitioner decided to acquire the company of M/s.CST Hotel Private Limited, which is situated in R.S.No.629, Kodaikanal-Batlagundu Road, Batlagundu, Dindigul District and entered into a Memorandum of Understanding on 15.07.2006 with third respondent Anbuselvan and the other Director Mr.Ravi, wherein, 100% share of the above said company was transferred for a consideration of Rs.3.5 Crores. The petitioner came to know that the third respondent and other Director leased out the said Hotel to one A.Jeyakrishnan of Kerala State and therefore, on the complaint given by the Co-Director of the petitioner, a case was registered in crime No.27 of 2007 in District Crime Branch, Dindigul. The third respondent and other Director one Ravi have cheated several persons in and around of their native place. In a case preferred by the first respondent herein against the third and fourth respondent under Section 138 of the Negotiable Instruments Act, in C.C.No.227 of 2004, third respondent has been declared as proclaimed offender. The learned Judicial Magistrate in his order dated 31.03.2010, appointed the second respondent as Court Receiver to maintain the Hotel belonging to the petitioner. The above said order has been passed under
Section 83(4)(b) of Cr.P.C. The petitioner and the other Director are the exclusive owners of the said property and the entire shares have been transferred to their names. Therefore, the order passed by the Judicial Magistrate is liable to be set aside.
3.The learned counsel for the petitioner contends that the petitioner became the owner of the property as per the Memorandum of Understanding entered into between the erstwhile Directors of the Company on 15.07.2006 and the erstwhile directors including the proclaimed offender resigned from the Directorship much earlier to the orders passed by the learned Judicial Magistrate, appointing the Court Receiver and therefore, the order of the learned Judicial Magistrate is to be set aside.
4. The learned counsel for the first respondent, per contra, contends that the attachment was made in the year 2006 itself and even the application filed to raise the attachment before the trial Court was dismissed and the alleged transfer is nothing but a fraudulent one and therefore, there is no need to interfere with the orders passed by the learned Judicial Magistrate.
5. The learned counsel for the petitioner also filed Form-32 of the Company filed before the Registrar of the Companies. As per the copy of the Form-32, the proclaimed offender, namely, Anbuselvan resigned from the Directorship of the Company on 20.03.2008.
6. It is seen from the orders that the attachment was made in the year 2006. The third respondent herein filed an application under
Section 83 of Criminal Procedure Code to raise the attachment and the same was also dismissed by the learned Judicial Magistrate. The learned counsel for the petitioner mainly contends that the Memorandum of Understanding was entered into transferring the shares to the petitioner even on 15.07.2006 and the Company became vested with the petitioner. But as already pointed out, the proclaimed offender resigned from the Directorship as well as from the post of Managing Director only on 20.03.2008.
7. Considering the date of resignation of the proclaimed offender as per Form-32 filed before the Registrar of Companies Act, the contention of the learned counsel for the petitioner that the alleged Memorandum of Understanding is fraudulent one cannot be brushed aside. If the property of the proclaimed offender is attached, it is vested with the State Government. Therefore, the learned Judicial Magistrate has rightly passed the order appointing the Court Receiver. Therefore, this Court does not find any abuse of process of Court or otherwise warranting any interference with the orders passed by the learned Judicial Magistrate. Hence, this Criminal Original petition fails and the same is dismissed. However, the petitioner is at liberty to move the trial Court as an Objector, if he is able to convince the Court as to the date of knowledge of the attachment. Consequently, connected Miscellaneous petition is closed.
To The Judicial Magistrate, Kodaikanal.
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