Andhra HC (Pre-Telangana)
K.K. Maheshwari And Anr. vs Rockhard Building Materials Limited, ... on 27 December, 1993
Equivalent citations: 1994(1)ALT259
ORDER Immaneni Panduranga Rao, J.
1. This petition is filed under Section 482 Cr.P.C. for declaration that the taking of cognizance, of C.C. No. 185 of 1993 by the learned Xllth Metropolitan Magistrate, Hyderabad, is illegal and void and to quash the entire proceedings in the said C.C.
2. The petitioners figure as accused Nos. 1 and 2 in C.C. No. 185 of 1993 on the file of the XII Metroplitan Magistrate, Hyderabad and the offence alleged against them is one under Section 630 of the Companies Act, 1956. The learned Counsel for the petitioners submitted that since the offence is exclusively triable by a specially constituted Court manned by an officer in the cadre of District and Sessions Judge at Hyderabad to deal with the specific offences, the learned Magistrate is not competent to take cognizance of the offence and to proceed with the trial of the same. In support of his contention he relied upon G.O. Rt. No 734 Home (Courts-A) Department dated 13-3-1981, under which the Court of the Special Judge for Economic Offences manned by an officer of the cadre of the District and Sessions Judge was constituted at Hyderabad to deal with the offences arising under the enactments mentioned in the annexure thereto. Item No. 11 under the annexure is the Companies Act, 1956. The learned Counsel for the petitioners submitted that when a Court is specially constituted for trial of certain specified offences, it is that Court which has to try the offences but not the Magistrate.
3. The learned Counsel for the first respondent, on the other hand, argued that the complaint is filed under Section 200 Cr.P.C. but not under Section 630 of the Companies Act; that., therefore, the Magistrate is competent to take cognizance of the offence and that merely because a special Court is constituted to try certain types of offences, the jurisdiction of the regular Magistrate is not ousted. Section 200 Cr.P.C. is the provision empowering the complainant to file a private complaint before the Court. That is only the procedural provision empowering the filing of a private complaint but it is not the provision dealing with the substantive law under which the accused are sought to be punished. While complaining that the petitioners herein did not hand over the documents to the first respondent, the first respondent sought the assistance of the criminal Court for punishing the petitioners herein under Section 630 of the Companies Act. Inasmuch as Companies Act, 1956 is one of the Central Acts mentioned in the G.O. constituting the Special Court for trial of the offences covered by that Act, I agree with the learned Counsel for the petitioners that it is only the Special Judge for Economic Offences who is competent to try the case.
4. The learned Counsel for the first respondent submitted that even if the offence under Section 630 of the Companies Act is proved, the Court can' only impose penalty against the petitioners but not any term of imprisonment and, therefore, the offence need not be tried by a Special Judge of the cadre of the District and Sessions Judge and that a magistrate can try the offence But a reading of Section 630 of the Companies Act shows that the penalty for wrongfully withholding of property is the fine which may extend to Rs. 1,000/- instead of any term of imprisonment. The Legislature thought that a lenient punishment of fine would meet the ends of justice. On proof of the offence, the accused on conviction is liable to pay the fine, in lieu of any term of imprisonment. Nevertheless it does not cease to be an offence under Section 630 of the Companies Act for the trial of which a Special Court has been constituted under the G.O. Rt. referred to above.
5. As held by the Supreme Court in A.R. Antulay v. R.S. Nayak, , when a corruption case is triable by a Sessions Judge, even the Supreme Court is not competent to issue a direction transferring that case to a High Court Judge. The learned Judges were of the view that the trial of the case must be done in accordance with the procedure established by law and that any deviation even by a judicial direction will be negation of the rule of law.
6. Following the decision of the Supreme Court, referred to above, I hold that when a Special Court is constituted for trying specified types of offences under certain Central Acts, it is that Court which is competent to try the offences but not the Magistrate. However, that cannot be a ground to quash the entire proceedings in C.C. No. 185 of 1993 on the file of the XII Metropolitan Magistrate, Hyderabad. The learned Magistrate is directed to return the complaint to the first respondent herein for being presented before the Special Judge constituted to deal with the trial of Economic Offences.
7. The Criminal Petition is disposed of with the above direction.