Madhya Pradesh High Court
Sunil Mandwani vs The State Of Madhya Pradesh on 27 June, 2019
1
THE HIGH COURT OF MADHYA PRADES
CRR No.658/2019
(Sunil Mandwani //Vs.// State of M.P.)
Shri Vijay Asudani, learned counsel for the
applicant.
Shri Lokesh Bhargawa, learned counsel for the
respondent No.1/State.
Shri Manoj Munshi, learned counsel for the
respondent No.2.
ORDER
( 27 /06/2019) The applicant has preferred this petition under Section 397 read with Section 401 of Cr.P.C. against the order dated 21.01.2019 passed by XII Additional Sessions Judge, Indore in Session Trial No.1091/2015 whereby the application filed by the applicant under Section 227 of Cr.P.C. has been dismissed.
(2). Brief facts of the case are that complainant Deepak Kumar Mandwani has given a written complaint to the police alleging that he and applicant Sunil are Director of the M/s Varadmurti Agro Tech Private Limited.The said company is owned 44 square feet diverted land situated at survey No. 193, 203, 204 of Village Tejpur Gadwadi, Tehsil and District Indore. The rate of the aforesaid land has been increased, therefore, the applicant Sunil Kumar illegally take over the aforesaid land. It is also alleged that the applicant is not calling the meeting of company and have kept the agenda book and resolution book of the company in his possession with a view to gain control over the company. He without calling any meeting of the 2 board of Director of company prepared forge resignation letter of complainant Deepak and accepted his resignation on 18.12.2014 whereas he has never given the resignation. He also inducted his real brother applicant No.2 as director of company with intent to grab land of company. Thereafter, the applicant filed the aforesaid viz. appointment of applicant No.2 as director and removal of complainant Deepak Mandwani as director on the website of Registrar of Companies. On the basis of aforesaid complaint FIR bearing crime No.56/2015 was registered at police Station Juni Indore against the applicants for the offence under Section 420,467,468,471/34 of I.P.C. After completion of investigation, charge-sheet was filed and case was committed to the Sessions Court for trial. (3). The applicants filed an application before the trial court under Section 227 of Cr.P.C. for their discharge on the ground that if the allegation made in the FIR and documents filed alongwith challan are taken into consideration they only disclose commission of offence under the provision of Companies Act,2013. According to the provision of Section 435 and 436 of Companies Act, 2013, if an offence under the provisions of Companies Act as well as under the I.P.C. is committed then they will be tried by Special Court to be constituted under the said provisions of Act, 2013. The Union of India through Ministry of Company Affairs have issued a notification dated 18.05.2016 thereby the Court of IX Additional Sessions Judge,Gwalior is constituted as a Special Court 3 for State of M.P., therefore, the aforesaid court is competent to try the case registered against the applicants. Hence, they may be discharged for the offence registered against them.
(4). After hearing learned counsel for the parties, the trial court rejected the application filed by the applicants holding that under the provisions of Companies Act cognizance of matter can only be taken if complaint is made by Registrar of Companies or shareholders, therefore, the provisions of Companies Act, 2013 are not applicable in the present case and this court is having jurisdiction to try the case registered by the police against the applicants for the offence punishable under Indian Penal Code,.
(5). Learned counsel for the applicants has submitted that according to the Section 436 (2) of the Act, 2013, a special court can try offence other than offence under the provisions of Companies Act with which the accused may under the Cr.P.C. be charged. The trial court failed to appreciate that the complainant Deepak Mandwani was Ex- director and shareholder of the company hence he was competent to make complaint as per provisions of Section 439 (2) of Companies Act. The trial court has also not considered the fact that non calling of meeting, preparation of forged resignation are offences under the provisions of Act, 2013 and are covered by fraud under Section 447 of Act, 2013 and is punishable for an imprisonment which may extend to 10 years, therefore, according to the Section 439 as well as notification dated 4 18.05.2016 only the special court have competent to take cognizance of offence, therefore, the impugned order may be set aside and applicants be discharged from the charges under Section 420,467,468,471/34 of I.P.C. (6). On the other hand, learned counsel for the complainant has submitted that applicant No.1 with the sole objective to deceive the complainant and throw them out from the company, fraudulently superimposed their signatures on the resignation letters and removed him from the Board of Directors of the company. He also committed fraud and cheating against the complainant by manipulating and fabricating the records of the company and filing of false return with the Registrar of Companies. The sole objective of the applicant No.1 was to gain the control over the assets of the company and to deceive betray and cheat the complainant, which is clearly offences punishable under sections 406, 420, 465, 467, 468, 471 and 201 read with Section 120-B of the I.P.C. After removing the complainant on the basis of false, forged and fabricated resignation letter, the applicant No.1 also appointed his brother applicant No.2 Ashok Mandwani as one of the directors in the company to fulfill the requirement of minimum two directors in the company however, no such decision can be taken by the company unless the Board of Directors in their meeting has taken such decision and no board meeting can pass any resolution unless quorum is present. Thus, applicants committed fraud and cheating with the complainant for the purpose of financial gain, therefore, the FIR was 5 registered by the police against the applicants for the offence under Section 420,467,468,471/34 read with Section 120-B of I.P.C. and after detailed investigation as well as obtaining the report of the hand writing expert charge sheet has been filed by the police. It is further submitted that Section 435 of the Companies Act 2013 provides for establishment of Special Court to try offences punishable under the Companies Act with imprisonment of 2 years or more. Therefore, the jurisdiction of the Special Court is limited to the offences punishable under the Companies Act, 2013 and not under the Indian Penal Code or any offences committed under any other law. Thus, the trial court has not committed any error in rejecting the application filed by the applicant under Section 227 of Cr.P.C. Hence, learned counsel for the respondent prays for dismissal of the revision petition.
(7). Having heard learned counsel for the parties and perused the records.
(8). According to the notification dated 18.05.2016 in exercise of the powers conferred by Sub Section 1 of section 435 of Companies Act 2013 the Central Government after obtaining the concurrence of the respective of Chief Justices of the High Court designates the courts mentioned in the table as special court for the purpose of trial of offence punishable under the Companies Act, 2013 with imprisonment of 2 years or more in terms of section 435 of the Companies Act, 2013. As per Serial No.6 of the table IX Additional Sessions 6 Judge Gwalior has been designated as Special Judge for the State of Madhya Pradesh to try the offences punishable under the Companies Act, 2013. Provision of Section 436 (2) also provide that while trying an offence under the Companies Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973 be charged at the same trial. This provisions reads more scope of doubt that for special court who have jurisdiction, its a precondition that an offence punishable under the Companies Act, 2013 must be alleged or committed . However, in the present case, no offence under the Companies Act has been registered by the police. The police has registered the offence against the applicants punishable under Section under Section 420,467,468,471/34 of I.P.C.therefore, after completion of the investigation, police filed charge-sheet against the applicants before the Court of Judicial Magistrate First Class Indore who committed the case to the Sessions Court, which was transferred to the 12 th Additional Sessions Judge, Indore for the trial. During the course of argument, learned counsel for the applicant unable to point out that what act of the applicants alleged in the complaint violated the provisions of Companies Act and punishable under the said Act. In these circumstances the trial court has rightly held that applicants have fabricated and manipulated the records of the company to commit fraud and cheating against the complainant by showing resignation from the Board of Directors by forging the 7 signatures by way of superimposing their signatures in the resignation letter and this fact is also substantiated by the report of the hand writing expert. Therefore, the police registered the offence against the applicants for the offence punishable under Section under Section 420,467,468,471/34 of I.P.C. and no criminal trial has been initiated against the applicants for any of the offence which are punishable under the provision of Companies Act, therefore, in absence of the any offence punishable under the Companies Act, Special Court is not having jurisdiction to try the case which is punishable under the Indian Penal Code and court of Indore has territorial jurisdiction to try the case for the commission of offence punishable under Section under Section 420,467,468,471/34 of I.P.C. Therefore, this court is of the view that the trial court has not committed any error in rejecting the application under Section 227 of Cr.P.C. filed by the applicants.
(9). Accordingly, this petition is dismissed.
(S.K. Awasthi) Judge praveen PRAVEEN Digitally signed by PRAVEEN KUMAR NAYAK DN: c=IN, o=DISTRICT AND SESSION COURT INDOR, postalCode=452005, st=Madhya Pradesh, 2.5.4.20=e98f729464903facdd39c454715d6eccc5a KUMAR NAYAK 350c9111fb019b34dace6d05b8fd5, cn=PRAVEEN KUMAR NAYAK Date: 2019.06.27 17:25:53 -07'00'