Court No. - 48
Case :- APPLICATION U/S 482 No. - 1566 of 2018 Applicant :- Arvind Kumar Maheshwari And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Mr Kshitij Shailendra Counsel for Opposite Party :- A.G.A.
Hon'ble Karuna Nand Bajpayee,J.
This application under Section 482 Cr.P.C. has been filed seeking the quashing of the order dated 27.1.2016 and the order dated 21.7.2017 passed by the Addl. Chief Judicial Magistrate, Khurja, Bulandshahr as well as entire proceeding in Complaint Case No. 87 of 2016,arising out of Case Crime No. 614 of 2017, Rajiv Bansal versus Arvind Kumar ad another, under Section 420 IPC, Police Station Khurja Nagar, District Bulandshar pending in the court of Addl. Chief Judicial Magistrate, Khurja, Bulandshahr.
Heard Sri Kshitij Shailendra, learned counsel for the applicants and Sri Vimlendu Tripathi, learned A.G.A.
Entire record has been perused.
Submission made on behalf of the applicants is that the proceedings in question are bad in the eyes of law on several counts. Submission is that initially an First Information Report dated 29.8.2007 was lodged by the opposite party no.2 against the applicants, who all are connected with each others through one duly incorporated Company namely, Pelicon Bone China Pvt. Ltd., which was incorporated with the object relating to the dealing with all kinds of tiles, ceramic ware etc. Submission is that after thorough investigation, final report was submitted by the Investigating Officer for three times in the wake of initial investigation as well as further investigations due to filing of protest petition by the opposite party no.2. Further submission is that when third time a protest petition was filed by the opposite party no.2 on 21.1.2015, the court below rejected the final report and treated the protest petition as a complaint case vide impugned order dated 27.1.2016 and thereafter, the statements of opposite party no.2 and his witnesses were recorded under Sections 200 and 202 Cr.P.C. and the impugned summoning order dated 21.7.2017 has been passed against the applicants to face trial under Section 420 IPC. Submission is that both the orders dated 27.1.2016 and 21.7.2017 suffer from non-application of judicial mind. Submission is that the court below failed to consider that no offence under Section 420 IPC is made out in view of the applicability of Sections 621 to 624 of the Companies Act, 1956, which is a complete code in itself and is a special enactment covering all relevant aspects relating to the affairs of the Company inclusive of any offence which is or might be committed in respect of affairs of the Company. Submission is that the court below also failed to consider the fact that the opposite party no.2 had filed one original Suit no. 1063 of 2004 against the present applicants for similar subject matter claiming relief of cancellation of sale-deed along with other reliefs, controversy in which revolves around the registered sale-deed dated 1.12.2004 and it has been alleged that the property in question was being owned by the Company in its own name but its 2/3rd part was sold out by the applicants in favour of few persons. Submission is that actually the applicants were forced to sell out the said 2/3rd part of the property in question in view of financial liability being fastened upon the Company due to deficiency in the stamp duty in respect of earlier sale-deed dated 5.9.1990 whereby the original owner of the agricultural land namely Nishar Ahmad had transferred the land in favour of Company in question to which both the applicants as well as opposite party no.2 were Directors. Submission is that the applicants with all their bonafides utilized the amount received by them in lieu of registered sale-deed dated 1.12.2004 in order to discharge the financial liability of the Company in question. Submission is that Section 624 of the Companies Act provides non-obstante clause to give preference to the provisions of Companies Act over the provisions of Code of Criminal Procedure. Submission is that likewise, Section 5 of the Indian Penal Code also provides that nothing in the Indian Penal Code shall affect the provisions of any special or local law and these statutory arrangements also give strength to the stand taken by the present applicants that even if for the sake of argument it is said that the offence, if any, will be constituted under facts of case in hand, the same will constitute only under the Companies Act and not under the Indian Penal Code. Submission is that the impugned orders as well as the entire criminal proceedings of complaint case in question are abuse of the process of the court in view of the stand taken by the applicants and the same are liable to be quashed by this Court.
Submissions made on behalf of the applicants have been strenuously rebutted by Sri Vimlendu Tripathi, learned AGA by contending that the facts of the case itself reveal offence under Section 420 IPC in as much as the act of sale of 2/3rd part of the property, owned by the Company in its own name, done by the applicants in their individual capacity is clear case of cheating against the Company as well as its other Directors. Learned AGA submits that perusal of Sections 621 to 624 of the Companies Act as well as Section 5 of the Indian Penal Code goes to show that the applicants are wrongly taking aid of these provisions for the reason that these provisions relate to 'any offence against the Companies Act' and not relates to any offence constituting under any other law. It has also been submitted by the learned AGA that the reasons or explanations being tendered by the applicants for execution of the sale-deed dated 1.12.2004 in respect of 2/3rd share of the property in question is apparently in the nature of their defence which is not liable to be considered at the stage of cognizance and issuance of summons against the applicants, hence, the Criminal Misc. Application is liable to be dismissed by this Court.
The law regarding sufficiency of material which may justify the summoning of accused and also the court's decision to proceed against him in a given case is well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ground to proceed in the matter is required.
Through a catena of decisions given by Hon'ble Apex Court this legal aspect has been expatiated upon at length and the law that has evolved over a period of several decades is too well settled. The cases of (1) Chandra Deo Singh Vs. Prokash Chandra Bose AIR 1963 SC 1430 , (2) Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonker AIR 1960 SC 1113 and (3) Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736 may be usefully referred to in this regard.
The Apex Court decisions given in the case of R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 and in the case of State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426 have also recognized certain categories by way of illustration which may justify the quashing of a complaint or charge sheet. Some of them are akin to the illustrative examples given in the above
referred case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736. The cases where the allegations made against the accused or the evidence collected by the Investigating Officer do not constitute any offence or where the allegations are absurd or extremely improbable impossible to believe or where prosecution is legally barred or where criminal proceeding is malicious and malafide instituted with ulterior motive of grudge and vengeance alone may be the fit cases for the High Court in which the criminal proceedings may be quashed. Hon'ble Apex Court in Bhajan Lal's case has recognized certain categories in which Section-482 of Cr.P.C. or Article-226 of the Constitution may be successfully invoked.
Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case.
Appreciation of rival submissions in the light of record available before this Court as well as the provisions of law reveal that the Company in question had purchased agricultural land of one Nishsar Ahmad in its own name by means of registered sale-deed dated 5.9.1990, in respect of which, the Registration authority started proceedings for deficiency of stamp duty in respect of said sale-deed and the said proceedings were initiated against the Company as well as its Director. Subsequently, both the applicants had executed a registered sale-deed dated 1.12.2004 in respect of 2/3rd part of said agricultural land in favour of few persons and this subsequent registered sale-deed was executed by both the applicants in their individual capacity. The registered sale-deed dated 1.12.2004 is available on record as Annexure-5 at page-58 and perusal thereof demonstrates that both the applicants have claimed themselves to be the absolute owners in possession of the said agricultural land and have also made recital to the effect that except them, no other person is a partner of said part of the agricultural land and they have all rights to sell that property. This recital in the registered sale-deed by both the applicants prima faice makes out an offence under Section 420 IPC. So far as the applicability of Sections 621 to 624 of the Companies Act, 1956 is concerned, the same are apparently not applicable in view of the facts of the case as these provisions of Companies Act are confined to the offence punishable under the Companies Act, whereas the facts of the case in hand do disclose offence beyond the purview of the Companies Act. On the similar logic, the provisions of Section 5 of the Indian Penal Code are also of not much help to the present controversy in view of the discussion made herein-above. In totality of the facts and circumstances, the theory introduced by the applicants relating to deficiency of stamp duty in respect of registered sale-deed in the name of Company dated 5.9.1990 is a matter, which requires appreciation of evidence and can only be dealt with by the trial court at an appropriate stage.
The submissions made by the applicants' counsel call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the complaint, and also the material available on record make out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. this Court does not find any justification to quash the complaint or the summoning order or the proceedings against the applicants arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.
The prayer for quashing the same is refused as this Court does not see any abuse of the Court's process either.
However, it is observed that if the bail has not been obtained as yet, the accused may appear before the court below and apply for bail within four weeks from today. The court below shall make an endeavour to decide the bail application keeping in view the observations made by the Court in the Full Bench decision of Amrawati and another Vs. State of U.P. 2004 (57) ALR 290 and also in view of the decision given by the Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC).
In the aforesaid period or till the date of appearance of the accused in the court below, whichever is earlier, no coercive measures shall be taken or given effect to.
With the aforesaid observations this application is finally disposed off.
Order Date :- 22.2.2018 CPP/-