IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE K. NATARAJAN CRIMINAL REVISION PETITION NO.573/2013 Between:
1. K. Sampath Kumar, S/o. N. Krishnappa, Now presently residing at, Flat No.102, MON REPOS, 10th Main, 7th Cross, Maruthinagar, New Thippasandra Post, Bengaluru – 560 075.
2. Maqsood Ahmed, S/o. Abdul Jabbar, Now presently residing, At No.77, 5th Main, MHBCS Layout, BTM 1st Stage, Bengaluru – 560 029. ... Petitioners (By Sri. Thomas V.Peter, Advocate) And:
Official Liquidator, M/s. Pegasus Travels Ltd., (In. Liqn), Attached to High Court of Karnataka, Now presently at, 12th Floor, Raheja Towers, M.G.Road, Bengaluru-560001. ... Respondent (By Sri. Nishanth Kadur, Advocate, for Smt. Anupama Hebbar, Advocate, for Respondent/Official Liquidator) This Criminal Revision Petition is filed u/S.397 and 401 of Cr.P.C praying to set aside the judgment and order of conviction dated 05.11.2012 passed by the P.O., F.T.C.-XVII, Bangalore City in Crl.A.No.3/2012 confirming the judgment and order dated 01.06.2011 passed by the P.O., Spl. Court for Economic Offences, Bangalore in C.C.No.577/2007 convicting the petitioners for the offence p/u/s 538(1)(a) & (b) of the Companies Act, 1956 and also u/S 255(2) of the Cr.P.C. and acquit the petitioners of all charges.
This Criminal Revision Petition coming on for Admission, this day, the Court made the following:
O R D E R This petition is filed by the petitioners under Section 397 of Cr.P.C. being aggrieved by the conviction and sentence passed by the special Court for economic offence, Bangalore in C.C.No.77/2007 and the same was confirmed by the Presiding Officer, Fast Track Court -17, Bengaluru in Crl.A.No.3/2012 on 5.11.2012.
2. The factual matrix of the case of the petitioners before the trial Court is that the respondent -Official Liquidator issued notice to the petitioners on 20.07.2011 after winding up order passed by this Court in company Petition No.89/1998 dated 08.01.1999 directing these petitioners, being the Directors of the Company M/s. Pegasus Travels Ltd (In Liqn)., 4th Floor, D & F Wing, Kendriya Sadan, Koramangala, Bengaluru, directing to handover the vehicle. But, the petitioner failed to handover the vehicle. Hence, the Official Liquidator filed a complaint under Section 200 of Cr.P.C. before the trial Court for the offence punishable under Section 538(1)(a) & (b) of the Companies Act, 1956 and r/w Rule 9 of the Companies (Court) Rules 1959. After the trial, the Special Court for economic offences found them guilty for the offences and convicted them and sentenced to pay fine of Rs.5,000/- each and also directed the petitioners to handover the vehicle. Being aggrieved by the same, the petitioners preferred an appeal before Sessions Court in Crl.A.No.03/2012 dated 05.11.2012 which also came to be dismissed. Hence, this petition.
3. Learned counsel for the petitioners contended that the vehicle was already sold by the Directors prior to winding up of the company. There is no document produced by the respondent before the trial Court in respect of the same. In spite of objection raised by the appellants-petitioners in defence that no vehicle was in the custody of the petitioners, but, in spite of the same, the trial Court convicting them and directing them to handover the vehicle, is erroneous and even the Appellate Court not properly appreciated the evidence on record and passed the impugned order, which is also illegal and prayed to allow the petition.
4. Per contra, learned counsel appearing for the Official Liquidator contended that though the petitioners have taken the contention that the vehicle was already sold, prior to the winding up of the Company, but the petitioners being the Directors of the Company have not at all produced any documents before the Court either in respect of transferring the vehicles before RTO or any books of accounts in respect of the company to show that the vehicle in question was already sold prior to the winding up of the company. Therefore, he has supported the judgment of both the Courts and prayed to dismiss the petition.
5. After hearing the arguments and on perusal of the findings of both the Courts below, in my considered opinion, the petitioners have not at all produced a single piece of document to show that the vehicle in question was already disposed or sold by them prior to the winding up of the Company. Even, they have not brought any extract or ‘B’ Registration Certificate from the RTO in order to prove their contention that they have already sold and they are not in possession of the vehicle and also to whom it was sold. Therefore, without much discussion on this point, in my considered opinion the judgment passed by the trial Court as well as Appellate Court is not illegal as both the Courts have properly considered the evidence on record and rightly come to the conclusion that the appellants-petitioners were guilty of the offences for not handing over the vehicle in question.
6. However, during the course of the arguments, the learned counsel for the petitioner and respondent contended that even the respondent is not able to find out the vehicle in question whether it was sold to any body or it was scrapped. Even both the counsel are unable to say what was the model of the vehicle and no documents are forthcoming either from the side of petitioners or the respondent. Since the company having wound up long back, more than 20 years back, obviously, the vehicle Maruti Omni Car pertaining either 1995 or prior to that, the value of the Maruti Omni Car may be Rs.2,50,000/- to 3,00,000/- prior to the year 1995. Therefore, after depreciation, the value of vehicle may be less than Rs.1,00,000/- as on the date of liquidation. However, while passing the judgment by the trial Court as well as Appellate Court, definitely the value of the vehicle may not fetch more than Rs.40,000/- in the year 1999. Learned counsel contended that even the vehicle had no re-sale value and even if it is given to scrap, it may not fetch more than Rs.10,000 to Rs.20,000/-.
7. Therefore, considering the facts and circumstances of the case and long pending litigation instead of directing the petitioners to hand over the vehicle, I propose to order to pay the value of the vehicle at least Rs.40,000/- that will meet the ends of justice.
The said value is not disputed by other side. Therefore, I propose to pass the following order:
(i). Revision petition is allowed in part.
(ii). The findings given by both the Courts is confirmed, however, in spite of the vehicle, the petitioners are directed to pay Rs.20,000/- each (totally Rs.40,000/-) towards the value of the vehicle, to be deposited with the Official Liquidator within four weeks and the fine amount imposed by the trial Court is directed to be deposited before the trial Court.
Accordingly, Petition is disposed of.
Sd/- JUDGE DS