Madhya Pradesh High Court
Bhargava Refrigeration Industries ... vs Piyush Bhargava on 10 April, 2023
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
MISCELLANEOUS CRIMINAL CASE No.55570/2022
Between:-
1. BHARGAVA REFRIGERATION INDUSTRIES
PRIVATE LIMITED HAVING ITS
REGISTERED OFFICE AT:
BARAFKHANA COMPOUND, TANSEN
ROAD, GWALIOR, 474002 (M.P.)
2. PRAVEEN BHARGAVA S/O LATE SHRI
BHARAT BHUSHAN BHARGAVA, R/O
BARAFKHANA, TANSEN ROAD, GWALIOR,
474002 (M.P.)
.....PETITIONERS
(BY SHRI HARSHVARDHAN TOPRE - ADVOCATE)
AND
PIYUSH BHARGAVA S/O LATE SHRI
BHARAT BHUSHAN BHARGAVA, R/O
BARAFKHANA, TANSEN ROAD, GWALIOR,
474002 (M.P.)
.....RESPONDENT
(BY SHRI VIKRAMJEET SINGH - ADVOCATE)
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Reserved on 02/02/2023
Delivered on 10/04/2023
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This petition coming on for hearing this day, Hon'ble Shri
Justice Milind Ramesh Phadke passed the following:
ORDER
The present petition under Section 482 of Cr.P.C. is preferred against the order for issuance of summons dated 27.08.2022 passed by IX Additional District and Sessions Judge, Gwalior in case No. SC/0000172/2022 instituted on a criminal complaint on erroneous allegations of giving false evidence before National Company Law Tribunal, Indore Bench under Section 193, 196, 120-B/34 of IPC and under Section 449 of the Companies Act, 2013.
2. The present criminal case came to be filed by the present respondent alleging production of false evidence before the National Company Law Tribunal, Indore Bench before whom a company petition No.74/2018 for operation and mismanagement under Section 241 read with Sections 242, 246, 3 339, 340, 341, 447, 450, 120, 207, 208 and 56 of the Companies Act was instituted in the year 2018 against the present petitioners. During pendency of the said company petition the present respondent filed an interim application No.124/2019 under Sections 119(4) read with Section 119(3) of the Companies Act, 2013 for issuance of directions to accused No.2 and 3 therein to provide certified copies of Resolution as well as minutes of Annual General Meeting conducted by the accused No.1/Company therein on 30.09.2018.
3. In reply to the said interim application, the accused therein specifically submitted that they have sent an electronic mail with an attached letter dated 20.12.2018 whereby the complainant therein was advised to collect copy of minutes of Annual General Meeting dated 30.09.2018 from the office of accused No.1 therein on payment of requisite fees i.e. Rs.50/- during office hours on 21.12.2018. Further in the reply, it was submitted that the accused therein had again sent an electronic mail dated 26.12.2018 with an attached letter dated 20.12.2018 4 whereby the complainant therein was again advised to collect the copy of the minutes of Annual General Meeting dated 30.09.2018 from the office during office hours on 27.12.2018.
4. The complainant therein/respondent alleging that the accused therein had submitted concocted stories and false statements alongwith fabricated electronic mails as documentary evidence with a sole motive to deceive the complainant therein as well as the Tribunal.
5. It was also submitted by the complainant therein/respondent that he had never received such electronic mails and when the complainant therein/respondent inquired from the service provider of the electronic mail I.D. from where the accused had said to have sent the mail, he got the information with the date on which the accused are stating to have forwarded the documents, the server of that service provider did not receive any hits, thus alleging submission of false information before the National Company Law Tribunal, Indore Bench, the accused person therein was said to have committed an offence as aforementioned and in that context 5 since the offences under the Companies Act are to be tried by the Special Courts and since cognizance was taken by the Special Court and summons were issued to the present petitioner, the present petition has been filed.
6. Learned counsel for the petitioners vehemently argued that from bare reading of the complaint it would be evident that a complaint under Sections 193, 156, 120-B/34 of IPC read with Section 449 of Companies Act alleging giving false evidence before learned National Company Law Tribunal, Indore Bench and as per the procedure laid down under Section 195 of Cr.P.C. which specifically prescribes that no Court shall take cognizance for the offence where the allegations pertaining to giving false evidence, except when the complaint regarding giving false evidence is received from that Court or Tribunal, before which it is alleged that false evidence is tendered, and since as per Section 195 of Cr.P.C. the complaint has not been made by the Court of the Tribunal before whom the false evidence is said to have been tendered, the cognizance taken by 6 IX Additional District and Sessions Judge, Gwalior cannot be said to be justified when there is a specific bar under Section 195 of Cr.P.C.
7. It has further been argued that as per mandatory provisions of Section 195 of Cr.P.C., the Court/Tribunal where it has been alleged that false evidence has been given only that Court/Tribunal or to some other Court/Tribunal to which its subordinate is authorized to file complaint in writing for the offence of giving false evidence. On this count, the jurisdiction of the Sessions Court in taking cognizance of a complaint filed by a private person is without jurisdiction.
8. It has also been argued that for the allegations of offence relating to giving of false evidence before the Court/Tribunal a special procedure that needs to be followed by that Court or Tribunal has been prescribed under Section 340 of Cr.P.C. and it is to be observed mandatorily before filing any complaint by the Court/Tribunal under Section 195 of Cr.P.C. for any Court authorized to take cognizance and thus, it was for the National Company Law Tribunal, Indore Bench to have followed the 7 provisions as provided under Section 340 of Cr.P.C. and the complaint was required to be filed at the instance of National Company Law Tribunal, Indore Bench.
9. It was also argued that for the offences alleged to have been committed under Section 449 of the Companies Act, 2013 no procedure has been prescribed under the Companies Act, however Section 438 of the Companies Act, 2013 specifically provides that the procedure prescribed under the Cr.P.C.,1973 shall be applicable to all proceedings before the special Court and if no procedure has been prescribed under the Companies Act, 2013, the cognizance taken by the IX Additional District and Sessions Court, Gwalior is in total disregard with the procedure contained under the provisions under Section 438 of Cr.P.C. and has committed grave error by ignoring various provisions mandatory in Cr.P.C.
10. It has also been argued that IX Additional District and Sessions Judge had not applied its judicial mind while accepting the criminal complaint which is dehorse the mandate of the Hon'ble Supreme Court in the matter of Pradeep S. 8 Wodeyar Vs. Union of India passed in Criminal Appeal No.1288/2021 decided on 29.11.2021. Thus, on the strength of above arguments, counsel for the petitioner prayed for quashment of the criminal complaint pending before IX Additional District and Sessions Judge, Gwalior in criminal case No.SC/172/2022.
11. Per Contra, learned counsel appearing for respondent/complainant submitted that the complaint which has been filed under Section 449 of the Companies Act, 2013 read with Section 193, 196, 120-B and 34 of IPC, is in pursuance to submissions of false evidence before the National Company Law Tribunal before whom a Company Petition No.74/2018 for operation and mismanagement under various sections of Companies Act is pending.
12. It has further been argued that as per Section 438 of Companies Act, Special Courts have been established by the Central Government by way of notification for providing speedy trial of the offences under the Companies Act and as the complaint is under Section 449 of the Companies Act, it is 9 specifically to be tried by the special Court established under the Companies Act. It was further argued that the jurisdiction of any other Court or Tribunal is decided from the very provisions of Section 436 of the Companies Act, 2013 which starts with a non obstante clause " Notwithstanding anything contained in the Code of Criminal Procedure, 1973" and since there is specific bar under the Companies Act for any other Court or Tribunal to take cognizance of any offence which has been committed under the Companies Act, the National Company Law Tribunal, Indore Bench has no jurisdiction to entertain such a complaint or even since the main offence under Section 449 of Companies Act, the procedure as prescribed under Section 193 of Cr.P.C. which also relates to production of false evidence is not required to be followed in view of the non-bstenate clause contained under Section 436 of the Companies Act.
13. It has further been argued that Section 439 (2) of Companies Act specifically spells out the person who can file a 10 complaint before the Special Court which includes the 'Registrar, a share holder or a member of the Company or a person authorized by the Central Government in that behalf, thus, under the Companies Act, there is a specific provision as to who can file a complaint and the complainant/respondent being covered under the aforesaid category, the complaint is very well maintainable and no illegality has been committed by the Sessions Court in taking cognizance and issuance summons.
14. Heard learned counsel for the parties and perused the record.
15. Before adverting to the rival contentions, this Court deems it necessary to analyse the provisions of Companies Act and the Code of Criminal Procedure. For ready reference Section
435. (1) The Central Government may, for the purpose of providing speedy trial of 2[offences under this Act, except under section 452, by notification], establish or designate as many Special Courts as may be necessary.
436. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973,--(a) [all offences specified under sub-section (1) of section 435] shall be triable only by the Special Court established for the area in which the registered office of the company in relation to which the offence is committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this 11 behalf by the High Court concerned;
438. Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be1[deemed to be a Court of Session or the court of Metropolitan Magistrate or a Judicial Magistrate of the First Class, as the case may be,] and the person conducting a prosecution before a Special Court shall be deemed to be a Public Prosecutor.
439. (2) No court shall take cognizance of any offence under this Act which is alleged to have been committed by any company or any officer thereof, except on the complaint in writing of the Registrar, a shareholder 1[or a member] of the company, or of a person authorised by the Central Government in that behalf:
Provided that the court may take cognizance of offences relating to issue and transfer of securities and non-payment of dividend, on a complaint in writing, by a person authorised by the Securities and Exchange Board of India:
Provided further that nothing in this sub-section shall apply to a prosecution by a company of any of its officers.
449. Save as otherwise provided in this Act, if any person intentionally gives false evidence -
(a) upon any examination on oath or solemn affirmation, authorised under this Act; or
(b) in any affidavit, deposition or solemn affirmation, in or about the winding up of any company under this Act, or otherwise in or about any matter arising under this Act, he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and with fine which may extend to ten lakh rupees.
Section 195 of Cr.P.C., 1973
195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.(1) No Court shall take cognizance-
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or 12
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub- clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.
16. From bare reading of Section 435 of the Companies Act, it is evident that for the purpose of providing speedy trial of the offences under the Companies Act, the Central Government by notification may establish or designate as many special Courts as necessary and in that context IX Additional District and Sessions Judge, Gwalior has been designated as Special Court under the Companies Act vide notification dated 18.05.2016 issued by Industry and Corporate Forum.
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17. Section 436 of the Companies Act starts with a non obstante clause "Notwithstanding anything contained in the Code of Criminal Procedure" which gives an overrding effect over the provisions of Act mention in the non obstante clause. It is trite to say that accept of provisions or act mentioned in the non-obstante clause, the enactment following it will have its full operation or that the provisions embrazed in the non- obstante clause will not be an impediment for the operation of the enactment, thus, a non-obstante clause may be used as a legislative device to modify the ambit of the provision of law mentioned in the non-obstante clause or override it in specified circumstances. Therefore, when the enacting part of the Section is clear, its scope cannot be cut down or enlarged by resort of non-obstante clause. Thus, it could safely be held that the provisions of Section 436 of the Companies Act will have over riding effect over the provisons of Code of Criminal Procedure, whenever an offence specified under the Companies Act is to be tried by Special Court.
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18. Admitedly, Section 449 which deals with punishment for giving false evidence is an offence under the Companies Act, it is to be tried by Special Courts established/notified by the Central Government as per Section 435 of the Companies Act.
19. So far as maintainability of the complaint at the behest of complainant/respondent is concerned, Section 439 (2) of the Companies Act is very much clear. Section 449(2) lays down about the exception for the Courts taking cognizance upon complaint in writing made by the Registrar, a share holder or a member of the Company or a person authorized by the Central Government in that behalf. Thus, it is clear that any of the person mention in the Section can maintain the complaint and the complainant/respondent being one of the Directors (shareholders/members) of the accused/petitioner company could maintain the complaint.
20. So far as the contention of the counsel for the petitioner that learned IX Additional District and Sessions Judge, Gwlior while taking cognizance of the matter and issuing summons had not applied its judicial mind is concerned, it appears that the 15 learned Special Judge though appears to have taken congnizance only under Section 449 of IPC but since it is a private complainant, it was incumbent upon the learned Special Judge to have assigned proper reasons while taking cognizance and mere writing that appropriate grounds for taking cognizance appears in the present matter would not suffice, therefore, in the light of the judgment passed by Hon'ble Apex Court in the matter of Pradeep S. Wodeyar (Supra), this Court deems it fit to set aside the order dated 27.08.2022 and relegate the matter to the Special Judge to pass a reasoned order afresh while taking cognizance.
21. With the aforesaid observations and directions, the petitioner is partly allowed and disposed of.
E-copy/Certified copy as per rules/directions.
(Milind Ramesh Phadke) Judge neetu NEETU SHASHAN K 2023.04.1 1 11:50:18 +05'30'