THE HON’BLE SRI JUSTICE RAJA ELANGO TRANSFER CRIMINAL APPEAL Nos.2 AND 3 OF 2009 10-09-2014 CRIMINAL APPEAL No.2 of 2009 BETWEEN:
P.Jayaprasada Raja …..Appellant/Accused AND V.Ranga Rao And State of A.P., Rep. By the Public Prosecutor, High Court of A.P., Hyderabad.
…..Respondent CRIMINAL APPEAL No.3 of 2009 BETWEEN:
P.Jayaprasada Raja …..Appellant/Accused AND V.Ranga Rao And State of A.P., Rep. By the Public Prosecutor, High Court of A.P., Hyderabad.
…..Respondent THIS COURT MADE THE FOLLOWING JUDGMENT: THE HON’BLE SRI JUSTICE RAJA ELANGO TRANSFER CRIMINAL APPEAL Nos.2 AND 3 OF 2009 COMMON JUDGMENT:
The Criminal Appeal Nos.222 and 223 of 2005 are preferred by the appellant/accused before the Court of Hon’ble Metropolitan Sessions Judge at Hyderabad, challenging the Judgment, dated 08.08.2005 passed by the Hon’ble Special Judge for Economic Offences at Hyderabad in C.C.Nos.76 and 77 of 2003 respectively. This Court called for the records of the said criminal appeals for the reason that the other criminal appeals pending before this Court pertains to the same issues in the said criminal appeals.
The Criminal Appeal Nos.222 and 223 of 2005 are numbered as Transfer Criminal Appeal Nos.2 and 3 of 2009 respectively before this Court.
The brief facts of the complaint, in C.C.No.76 of 2003, as recorded by the trial Court, are as follows.
That the complaint is one of the first four directors of the company “Anupama Homes India (P) Ltd”, which is incorporated under the Companies Act as Company No.01-30597 of 1998-99. The other three first directors are Dr V.Anupama Choudary, P.Showri Raja and P.Jayaprasada Raja, who is A.1 in this complaint. All the first four directors at the time of incorporation have subscribed 100 paid up shares of Rs.10/- each. In the above said company, all the first four promoters and directors are closely related to each other as Dr.Anumana Choudary is the wife of the complainant and P.Showri Raja and P.Jayaprasada Raja are nephews of Dr Anupama Choudary i.e., they are her elder sister’s sons. The company has its registered office at 1073, Nagarjuna Nagar, Hyderabad which is also residence of the complainant. The above said company is carrying on business in the real estate and is involved in the business in the acquiring lands and convert into plots and thereafter selling plots/buildings etc. The complainant is filing this complaint in the capacity as shareholder in Anupama Homes India (P) Ltd.
ii) The complainant submits that apart from the first four promoters/Directors and two directors i.e., P.Raja Rani, P.Vijaya Laxmi have become the directors in the above said company on 28.09.1999 and form No.32 is filed with Registrar of Companies by A.1 himself on 25.10.1999. Thus taking the strength of the directors in the above said company to six persons above named.
iii) The day to day functions of the company was mainly looking after by A.1 from November, 1999 who was also given the power to operate bank account of the above said company under his signature, while the matter stood thus it has come to the notice of the complainant and other directors during December, 2002 the various omissions and commissions committed by A.1 involved having mismanagement and misappropriation of companies funds. A.1 was questioned by the complainant with regard to the unaccounted withdrawal from the company account through 37 self cheques for Rs.28,89,579/-. The company has taking separate steps for misappropriating the company funds by the accused. A.1 has entered into the criminal conspiracy with A.1 to A.12 to illegally gain control of the management of the above said company and committed illegal acts with serious of manipulations with the structure of the company, its shareholders pattern of its directorship in order to deprive the complainant and other promoters directors except A.1 and their right and interest. A.1 has filed several documents before the RoC Hyderabad for the purpose of requirement under the Companies Act and which are false and with the cooperation of A.2 to A.12.
iii) The complainant submitted that all of a sudden a publication notice dated 18.02.2003 is published in Eenadu a Telugu daily on 19.02.2003, P.V.V.G.Krishna Murthy, Advocate stating that the complainant P.Shouri Raja, Dr V.Anupama Choudary and P.Raja Rani having been removed from the directorship of the above company which is false and baseless. A counter has filed by the complainant on 03.03.2003 in I.A.No.452 of 2003 in O.S.No.194 of 2003 on the file of the Junior Civil Judge, West and South, Ranga Reddy wherein the complainant is the first respondent reserving the rights of initiating proceedings against A.1 and is for publishing defamatory public notice after receiving the counter filed by the complainant on 03.03.2003 a corrigendum to the above said public notice dated 18.02.2003 in publication in Eenadu on 06.03.2003 wherein it stated that it is mentioned due to oversight that the above said persons are removed from the directorship and that it should be represented as resigned from the directorship which is also false to the knowledge of A.1 at whose instance the said notices are published.
iv) The complainant on verification of the records with the RoC in February, 2003, it has come to complainant that the A.1 has filed various forms, statements which are false to the knowledge of A.1 i.e., showing as for the complainant Showri Raja and P.Raja Rani from the directorship and has filed form No.23, A.1 has presented form No.32 dated 07.02.2003, form No.23 before RoC on 10.02.2003 and claimed himself as Managing Director of the above said company filed form No.32, dated 13.02.2003, form No.2 on 20.11.1999, form No.2, dated 10.02.2003, form No.2 on 07.02.2003.
v) A.1 has produced forged documents i.e., the purport of the resignation letter of the complainant P.Showri Raja, Roja Rani and filed Xerox copies of O.S.No.194 of 2003 on the file of the Junior Civil Judge, West and South, Ranga Reddy District and the conduct of A.1 in issuing various notices in newspapers and producing forged resignation letters which are contradictory and on their own showing payments complying and offered have never resigned from the director in the said company, therefore, A.1 is liable for punishment and forged document as genuine and consequently for filing form No.32 to the above effect and thus, A.1 has dishonestly forged documents as genuine which is punishable under Section 471 IPC.
vi) In pursuance of the criminal conspiracy of A.1 to A.12 forged documents viz., the purported resignation letters of the complainant P.Showri Raja and Mrs.P.Raja Rani were brought into existence by A.1 to A.3 and the said resignation letters are forged documents as no such resignation letters were submitted. The above said forged resignation letters were submitted. The above said forged resignation letters were filed by A.1 in O.S.No.194 of 2003 on the file of the Junior Civil Judge, West and South, Ranga Reddy District and the said suit is filed under the strength of the resoluti9on dated 15.02.2003 which is signed by A.1 and A.10 and thus, A.1, A.2 and A.10 have committed the offence under Section 465 IPC. The complainant A.1 is filing various declarations before the Registrar of Companies, Hyderabad as required under the Companies Act wherein A.1 is describing himself as Managing Director of the said company as evidence from the fact that no Form No.23 is filed to that effect before the Registrar of Companies till date and in fact, A.1 has filed only one Form No.32 to the knowledge of the complainant on 22.10.2001, whereas A.1 shows only a director and A.1 is also filing false cases against the complainant and others on behalf of the said company representing himself as its Managing Director in order to cheat the complainant. A.1 is not the Managing Director is evidence from several documents filed by A.1 viz., Annual Returns and Form No.32 submitted on 22.10.2001 and signed by A.1 of the said company filed before the Registrar of Companies wherein A.1 is describing himself only as a Director and, therefore, A.1 has committed an offence punishable under Section 419 IPC and the above said offences are committed by A.1 to A.12. Hence, the complaint.
The trial Court, by Judgment dated 08.08.2005, passed in C.C.No.76 of 2003, convicted the appellant/accused for the offence under Section 628 (part (a) of first charge) of the Companies Act and sentenced him to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1,000/- (Rupees one thousand only), in default to suffer simple imprisonment for a period of one month. The trial Court, by Judgment dated 08.08.2005, passed in C.C.No.77 of 2003 also convicted the appellant/accused for the offence under Section 409 IPC and sentenced him to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1,000/- (Rupees one thousand only), in default to suffer simple imprisonment for a period of one month.
When the transfer criminal appeals are taken up for hearing, learned counsel for the appellant/accused submits that the disputes between the parties have been settled and to that effect a Compromise Memo is also filed before the Court of I Senior Civil Judge, City Civil Court, at Hyderabad, in O.S.No.696 of 2003, in which the respondent/ complainant is the first plaintiff and the appellant/accused is the first defendant, and that the suit is also decreed in terms of Compromise, dated 01.10.2013, by the trial Court. He further submits that the facts and circumstances of the said suit pertain to the same company affairs, in which the respondent/complainant and the appellant/accused along with others were the Directors. He further submits that in the said compromise, it is agreed by both the parties that all the cases pertaining to the same company affairs will be withdrawn by them including the criminal appeals pending before this Court.
Learned counsel for the appellant/accused further submits that in view of the disputes arising out of the company affairs between the Directors of the said company and that the compromise entered into between the parties, more particularly, the Directors are closely related to each other, the said Compromise may be taken into account and the appellant/accused may be acquitted of the offences. He further submits that though the offences registered against the appellant/accused are non-compoundable, this Court has the power to permit the parties to enter into compromise, as per the decision of the Supreme Court in Gian Singh v State of Punjab (2012 Cri.L.J.4934). The relevant portion of the said Judgment is extracted as under (paras 53 and 54) 53. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a Court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the Court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment.
5 4 . Where the High Court quashes a criminal proceeding having regard to the fact that dispute between the offender and victim has been settled although offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. … … In respect of serious offences like murder, rape, dacoity, etc; or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between offender and victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry etc., or the family dispute, where the wrong is basically to victim and the offender and victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or F.I.R., if it is satisfied that on the face of such settlement, there is hardly any likelihood of offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard and fast category can be prescribed.
(emphasis supplied) This Court, relying on the above Judgment of the Hon’ble Supreme Court, is of the view that though the offences are non- compoundable, it may be permitted to compound the offence. Accordingly, parties are permitted to compound the offences.
In the result, the appeals are disposed of setting aside the conviction and sentence imposed by the trial Court against the appellant/accused and the appellant/accused is hereby acquitted of all the charges. The bail bonds shall stand cancelled and the sureties stand discharged. Fine amount, if any paid by the appellant/accused shall be returned to him.
Miscellaneous Petitions, if any, pending in this appeal shall stand closed.
JUSTICE RAJA ELANGO 10.09.2014 pln