Sri Afsar Pasha vs State Of Karnataka on 25 July, 2024

[Cites 36, Cited by 0]

Karnataka High Court

Sri Afsar Pasha vs State Of Karnataka on 25 July, 2024

SRI. SHYAM SUNDAR M.S., SENIOR COUNSEL FOR SRI. P. USMAN, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 14.12.2022 PASSED BY THE LEARNED VIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE IN PCR NO.17219/2022 AND THE F.I.R. IN CRIME NO.0004/2023 DATED 19.01.2023 REGISTERED BY THE RESPONDENT NO.1 FOR THE OFFENCES P/U/S 120B, 201 AND 379 OF IPC.

IN CRL.P NO.3591/2022 BETWEEN:

1. AFZAL AHMED S/O M A JAMEEL, AGED ABOUT 65 YEARS, DIRECTOR, AD PROCESS (PRINTERS) PVT LTD., 3

2. TARIQ AHMED S/O AFZAL AHMED, AGED ABOUT 36 YEARS,

3. FARAH AFZAL W/O AFZAL AHMED, AGED ABOUT 59 YEARS, PETITIONERS 1 TO 3 ARE R/AT:

NO.10, IST MAIN, ITI LAYOUT, BENSON TOWN POST, BANGALORE - 560 046.

4. SANYA AHMED AFZAL W/O ABDUL BASID, AGED ABOUT 33 YEARS, R/AT NO.12, 1ST FLOOR, 1ST MAIN, JAYAMAHAL, BANGALORE - 560 046.

...PETITIONERS (BY SRI. M.S.SHYAM SUNDAR, SENIOR COUNSEL FOR SRI. USMAN P., ADVOCATE) AND:

1. THE STATE OF KARNATAKA BY VYALIKAVAL PS, SHESHADRIPURAM SUB-DIVISION, BANGALORE - 560 003.

REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, ANNEXE BUILDING, BENGALURU - 560 001.

2. MOHAMMED FOUZAN KHAN S/O SAMIULLA KHAN, AGED ABOUT 42 YEARS, 4 R/AT FALT NO.7, MUSVEE RESIDENCY, NO.23, HALL ROAD RICHARDS TOWN, BENGALURU - 560 005.

...RESPONDENTS (BY SMT. ANITHA GIRISH, HCGP FOR R1;

SRI. ROHAN KOTHARI, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE CASE REGISTERED IN CR.NO.17/2022 BY THE RESPONDENT POLICE FOR THE OFFENCE P/U/S 506, 504, 120B, 418, 403, 406, 409, 420, 465, 468, 471 OF IPC AND SEC.66C, 66D OF I.T ACT AGAINST THE PETITIONERS, PENDING ON THE FILE OF THE I ACMM, BANGALORE.

IN CRL.P NO.5537/2022 BETWEEN:

SATHISH AITHAL. N. G. S/O. LATE GOPAL AITHAL, AGED ABOUT 46 YEARS, RESIDING AT NO. 8 AND 9, "VARASIDDHI", I A MAIN ROAD, LINGADHEERANAHALLI, PAVAMANAPURA LAYOUT, 2ND BLOCK, BENGALURU-560 109.

...PETITIONER (BY SRI. SUBHASHCHANDRA, ADVOCATE) AND:

1. THE STATE OF KARNATAKA BY VYALIKAVAL PS, SHESHADRIPURAM SUB-DIVISION, BANGALORE.

REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, ANNEXE BUILDING, BENGALURU - 560 001.

2. MOHAMMED FOUZAN KHAN S/O SAMIULLA KHAN, AGED ABOUT 42 YEARS, R/AT FLAT NO.7, MUSVEE RESIDENCY, NO.23, HALL ROAD RICHARDS TOWN, BENGALURU - 560 005.

...RESPONDENTS (BY SMT. ANITHA GIRISH, HCGP FOR R1;

SRI. DEEPAK BHASKAR, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE FIR REGISTERED IN CR.NO.17/2022 BY THE RESPONDENT POLICE FOR THE OFFENCE P/U/S 506, 504, 120B, 418, 403, 406, 409, 420, 465, 468, 471 OF IPC AND SEC.66(C), 66(D) OF I.T ACT AGAINST THE PETITIONER, PENDING BEFORE 1ST ACMM, NR ROAD, BENGALURU REGISTERED BY THE RESPONDENT POLICE STATION.

IN CRL.P NO.5915/2022 BETWEEN:

MEGHA GUPTA W/O MUKUL GUPTA AGED ABOUT 34 YEARS RESIDING AT NO.56, J. P. NAGAR 15TH CROSS, 19TH MAIN BANGALORE - 560 078.

...PETITIONER (BY SRI. SUBHASHCHANDRA, ADVOCATE) 6 AND:

1. STATE OF KARNATAKA BY VYALIKAVAL PS, SHESHADRIPURAM SUB-DIVISION, BANGALORE.

REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, ANNEXE BUILDING, BENGALURU - 560 001.

2. MOHAMMED FOUZAN KHAN S/O SAMIULLA KHAN, AGED ABOUT 42 YEARS, R/AT FLAT NO.7, MUSVEE RESIDENCY, NO.23, HALL ROAD RICHARDS TOWN, BENGALURU - 560 025.

...RESPONDENTS (BY SMT. ANITHA GIRISH, HCGP FOR R1;

SMT. DEEPA BHASKAR, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE FIR AND COMPLAINT IN CR.NO.17/2022 DATED 22.02.2022 REGISTERED BY THE VYALIKAVAL POLICE STATION FOR THE OFFENCE P/U/S.506, 504, 120-B, 418, 403, 406, 409, 420, 465, 468, 471 OF IPC 1860 AND SEC.66(C), 66(D) OF I.T. ACT 2000 PENDING ON THE FILE OF I ADDL.C.M.M., NRUPATHUNGA ROAD, BENGALURU IN SO FAR AS PETITIONER IS CONCERNED.

IN CRL.P NO.12668/2023 BETWEEN:

SRI. AFSAR PASHA S/O LATE BABA SAB, AGED ABOUT 56 YEARS, R/AT NO.120, JABBAR BLOCK, 9TH MAIN ROAD, 2ND CROSS, GUTTAHALLI, BANGALORE - 560 003.

...PETITIONER 7 (BY SRI. SHASHANK NAGENDRAN, ADVOCATE) AND:

1. STATE OF KARNATAKA BY VYALIKAVAL POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT BUILDING, ANNEXE BUILDING, BENGALURU.

2. TARIQ AHMED S/O AFZAL AHMED, AGED ABOUT 38 YEARS, DIRECTOR, M/S PROCESS PRINTERS PVT LTD., NO.11, 1ST MAIN, PALACE, GUTTAHALLI, BENGALURU - 560 003 ...RESPONDENTS (BY SMT. RASHMI PATEL, HCGP FOR R1;

SRI. M.S. SHYAM SUNDAR, SENIOR COUNSEL FOR SRI. P. USMAN, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE FIR IN CR.NO.4/2023 REGISTERED BY THE VYALIKAVAL POLICE STATION FOR THE OFFENCE P/U/S.120B, 201 AND 379 OF IPC ARISING OUT OF PCR NO.17219/2022 PASSED BY THE LEARNED VIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT BENGALURU AS AGAINST THEM.

THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 14.06.2024 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

CORAM: HON'BLE MR JUSTICE K.NATARAJAN 8 RESERVED FOR ORDERS ON: 14.06.2024 PRONOUNCED ON : 25.07.2024 CAV ORDER The Crl.P.No.2328/2023 is filed by the petitioner/accused No.1 and Crl.P.No.12668/2023 is filed by petitioner/accused No.2 for quashing the FIR in Crime No.4/2023 registered by Vyalikaval Police Station arising out of PCR No.17219/2022 for the offences punishable under Sections 120B, 201 and 379 of IPC.

2. Whereas Crl.P.No.3591/2022 is filed by the petitioner/accused Nos.1 to 4 and Crl.P.No.5537/2022 is filed by the petitioner/accused No.5 and Crl.P.No.5915/2022 is filed by the petitioner/accused No.6 for quashing the FIR in Crime No.17/2022 registered by the Vyalikaval Police Station for the offences punishable under Sections 506, 504, 120B, 418, 403, 406, 409, 420, 465, 468, 471 of IPC and Section 66 (C) and 66(D) of Information Technology Act, 2000, herein after referred to as IT Act.

3. The facts of the case in Crl.P.No.2328/2023 and 12668/2023 are that the respondent No.2 herein filed a private complaint under Section 200 of Cr.P.C., before the Magistrate in PCR No.17291/2022, in turn the complaint has been referred to the police under Section 156(3) of Cr.P.C., The Vyalikaval police registered the FIR in Crime No.4/2023 for the offences punishable under Sections 120B, 201, 379 of IPC. It is alleged by the complainant that he is the Managing Director of M/s.Ad Process (Printers) Pvt. Ltd.

situated at Guttahalli, Bangalore (hereinafter referred to as 'Company'). Accused No.1-Fouzan Mohammed Khan was the Director of the Company and accused No.2 was an accountant in the said Company. The Company was found by the father of the complainant in the year 1992. Accused No.1 is close relative and nephew of the father of the complainant. He become a share holder in 1999, by his father. Prior to that, the complainant's father had also made his mother Talad begum and sister Mussarrat Afza as share holders without any contribution. Accused No.1, is a B.Com graduate having no job. Hence, he was made as a Director 10 in the Company. The father of the complainant contributed the funds for making the accused as a shareholder and a Director. It is further alleged that in 2020-21, the complainant suffered set back due to Covid-19 and accused No.1 found acting detrimental to the interest of the Company. Accused No.1 stopped coming to the Company from February 2020 without any reason, however he was drawing the salary and receiving the rents. Accused Nos.1 and 2 developed enmity to each other. Even prior to Covid- 19, accused No.1 was creating nuisance in the Company and he was found acting contrary to create cordial atmosphere in the Company. Accused No.1 was taking advantage of the fact that the complainant's father was the maternal uncle, has misbehaved with the clients. However, the same was tolerated by the complainant as he was the close relative.

4. On 11.09.2021, accused No.1 called the complainant around 6 p.m. stating that he would be meeting few friends in the office and he will leave by 7.30 11 p.m. Accordingly, accused No.1 with one Mohd.Younus came to the office at 7.30 p.m. The complainant as a routine, checked the CCTV camera installed and the footage was not accessible and CCTV camera was turned off. Later, the complainant received a legal notice from an advocate that at 9.30 p.m. on the very same day i.e. on 11.9.2021, making an untenable allegation against the complainant and his family members and diverting attention of the complainant and advised him to take stern action against accused No.1. Hence, accused No.1 was removed as a Director of the Company by following due process of law on 19.10.2021. Several documents and invoices were missing. The complainant and others received a notice on 23.03.2022 from a lawyer of accused No.1 along with Company petition filed before the National Company Law Tribunal at Bangalore, (hereinafter referred to as 'NCLT') challenging the resolution of the Company for removing accused No.1 from the Company. Then the complainant given the reply notice and verified the documents, where he found the accused No.1 and accused No.2 were removed 12 from employment and he did not turn out. Later, the complainant came to know that accused No.2-accountant conspired with accused No.1 and facilitated to keep all the documents on 11.09.2021, readily packed in ten boxes to remove easily from the Company by alleging convenience.

5. It is further alleged that Ramesh, who was the Security Guard, was not on duty on 11.09.2021. On verification from a Security Guard, he came to know that he left the office at 9.30 p.m. on 11.09.2021 carrying 10 boxes. On inspection of the records, the Company found missing of files and other equipments. Then, the complainant issued the legal notice to the advocate of accused No.1 regarding theft of articles, which he came to know only on searching the documents, thereby accused Nos.1 and 2 committed the offence of theft of documents and articles.

6. It is further alleged that the accused No.1 conspired with accused No.2 to commit the theft of articles. Accused No.2 removed the documents from his custody and 13 kept it ready for taking the same by accused No.1. Shaik Idayat and Younus Parvis, the friends of accused No.1 blocked the CCTV camera and concealed the footage and caused disappearance of evidence. Hence, he approached the police and filed a complaint on 22.11.2022, but no action was taken. Hence, he approached the Commissioner of Police on 02.12.2022 and they also not taken action. Hence, he filed the private complaint before the Magistrate for taking action against him. Based upon the reference of the complaint, the police registered FIR and took up investigation, which is under challenge by accused Nos.1 and 2.

7. The facts of the case in Crl.P.Nos.3591/2022, 5537/2022 and 5915/2022 are that respondent No.2 Mohd Fouzan Khan filed a complaint with Vyalikaval police on 22.02.2022 and the same is registered as Crime No.17/2022 alleging that he is the Director of M/s. Ad Process Printers Pvt. Ltd. and the said Company was started in 1992 by one Abdul Ahmed and Dayanand. Abdul 14 Ahmed-accused No.1 was the Director and his son accused No.2, his wife-accused No.3 and daughter-accused No.4 were also the Directors of the said Company. Accused No.5, Sathish Aithal was the Chartered Accountant of the Company and accused No.6 was the Company secretary. The complainant also a share holder of the Company from 1997. In the year 2001, he became the Director of the Company. The Company was running smoothly and he lent Rs.25,75,363/- as loan and he was having 9000 shares in the Company. His mother was having 4300 shares and his elder sister was also having 6000 shares.

8. It is further stated that the annual report of the Company has been submitted the Registrar of Companies and Form No.4 has been submitted to the Ministry of Corporate Affairs and Registrar of Companies. While sending the report, the accused persons forged the signature through copy paste method and obtained the print out and sent to the Registrar of Companies. Even though the complainant was the Director of the Company, but without 15 his consent, the signature has been forged by the accused persons. It is further contended that Form Nos.MGT-7 and MGT-7A were sent to the Registrar of Companies by sending wrong information. They have not given information to the complainant and without giving any information, they removed him from directorship by forging the signature of the complainant and sent the mail. All the accused persons have colluded each other and created the documents and sent to the Registrar of Companies. Later, he demanded Rs.25,75,363/- and profit of the Company and the accused has given Rs.7.57% by reducing from 11.41% and they have to give Rs.2.50 crores to the complainant, but they have not paid with an intention to cheat him. The same came to his knowledge on 28.01.2022. He also came to know about the financial affairs, where the accused created the bills and the payments were made from the account of the Company, when he questioned the same, they kept him away. Hence, he issued the legal notice to the accused persons in September 2021, but when the complainant went to the Company, they abused him in filthy language and 16 threatened with criminal intimidation. Therefore, prayed for taking action against the accused persons.

9. The police after receipt of the complaint for the offences punishable under Sections 506, 504, 120B, 403, 406 , 409 420, 465, 468, 471 of IPC and Sections 66(C) and 66 (D) of IT Act,. Feeling aggrieved by the same, accused Nos.1 to 6 have filed three Criminal petitions, one by accused Nos.1 to 4, another by accused No.5 and one more petition by accused No.6, for quashing the FIR.

10. Heard arguments of learned Senior Counsels for the petitioners and learned counsel for the respondent and learned (2) High Court Government Pleader for respondent- State.

11. The learned Senior Counsel Sri. M.S.Shyam Sundar appearing for petitioner in Criminal Petition No.3591/2022 and other two connected matters has contended that the matter is pertaining to the Company where the respondent No.2 alleged that he has been 17 cheated Rs.2.50 crores by the Company and not paid the amount. They created the false document by forging his signature, when the same was questioned, the accused said to be threatened him and abused him in filthy language. The complaint came to be filed on 22.02.2022 there is a delay in lodging the complaint. The police without any preliminary enquiry registered the FIR, which is not correct and the offence under Section 66 (C) of the I.T Act shall be investigated by the Police not below the rank of inspector of police as per Section 78 of the I.T. Act but the FIR was registered by Women Police Sub Inspector, who is not authorised to investigate the matter as per Section 157 of Cr.P.C.

12. It is further contended by the learned Senior Counsel that as per Section 206 of the Companies Act, the Registrar is having power to call for the information, inspect the books and conduct enquires in respect of companies affairs. Therefore, the police do not have any power to investigate the Company matter. The respondent already 18 approached the National Company Law Tribunal and accordingly the Company law tribunal seized the matter. A special investigation team to verify any fraud has to be appointed that is Serious Fraud Investigation Office (S.F.I.O) as per the rules of the Company law. Therefore, filing the complaint before the police is liable to be quashed.

13. It is further contended that as per Rules 8 to 10 of the Companies Rules, the Central Government prescribed rules are dealing with the maintenances of the electronic documents and therefore the complaint itself is not sustainable.

14. The learned Senior Counsel has further contended that as per Section 57-A of the Companies Act, punishment is prescribed for personation of share holders and Section 59 of the Companies Act, the Tribunal has power to do rectification of Register of the member of the Company. Therefore, prayed for setting aside the FIR. 19

16. Per-contra, learned Senior Counsel Miss. Jayna Kothari appearing for respondent No.2 has contended that there are several allegations made against the petitioners in a lengthy complaint, but the police have mentioned only brief allegation in the FIR when there is no order for investigating by the S.F.I.O, the police can investigate the matter in IPC cases. Registering the FIR is altogether different from investigation. Therefore, the FIR is sustainable.

17. The accused persons have forged the signature of the complainant they hold the board meeting and removed the complainant from the Directorship in the meeting held on 11.10.2021. The accused persons were web hosted the report to the Company law board by forging the signature of the complainant. The police have power to file the charge sheet. Therefore, prayed for dismissing the petition.

18. Learned High Court Government Pleader Miss. Anitha Girish has also supported the case of the prosecution contending that the accused persons forged the signature of 20 the complainant and sent the same to the Company Registrar without the presence of the Company head, they held the meeting and removed him from Directorship they have not paid Rs.2.50 crores to the complainant. Therefore, there is a prima facie material placed on record for having committed cognizable offence. Hence, police can investigate the matter and it is further contended that Registering the FIR by Women P.S.I is no bar and only the investigation shall be conducted by the Police Officer not below the rank of Inspector of Police. Therefore, the FIR cannot be quashed. Even otherwise the FIR can be transferred to any other agency for investigating the matter by S.F.I.O or C.B.I. Hence, prayed for dismissing the petition.

19. Both the counsels have relied upon the judgments of Hon'ble Supreme Court and High Court.

20. The learned Senior Counsel for the petitioner mainly relied upon the judgment of Co-ordinate bench reported in 2016 SCC online KAR 8856 in the case of Shaila Chebbi Govind and Others -Vs- State of 21 Karnataka and connected matters. Whereas, the respondent counsel relied upon the judgment of Co-ordinate bench in Neha Rafiq Chachadi -Vs- State of Karnataka in Criminal Petition No.102165/2019.

21. The contention taken by the learned Senior Counsel for the petitioners is that the investigation cannot be taken out by the police officer not below the rank of inspector of police for the offence punishable under Section 66 of the I.T. Act in new Section 78 of IT Act. Here, in this case, a woman PSI registered the FIR in Crime No.17/2022. In this regard, the learned Senior Counsel for the respondent/complainant relied upon the judgment of the Co-ordinate Bench of this Court in Neha Rafiq Chachadi case, supra, wherein in a similar situation, the Co-ordinate Bench while considering section 78 of the IT Act, at para 11, has held that there is no bar for registering the case by a police official, lesser in the rank that of a police inspector under Section 78 of the IT Act, which would contemplate that the investigation should be conducted by a person who 22 is of the rank of an inspector of police not below the rank of an inspector of police. On perusal of the FIR, admittedly, the Women PSI registered the FIR and there is no evidence before this Court to show that the PSI herself investigated the matter and in the meanwhile, FIR has been stayed by this Court. Such being the case, merely the FIR was registered by below the rank of an inspector of police, will not vitiates the investigation as the investigation shall be done by the inspector of police as per Section 78 of the IT Act. Therefore, the contention of the Learned Senior counsel that there is violation of Section 78 by registering the FIR by the sub inspector of police is not acceptable.

23. Another contention raised by the learned Senior Counsel for the petitioner is that, once the complaint filed, the police could have conducted preliminary enquiry and registered the FIR. Of course, the police have not done any preliminary enquiry while registering the FIR.

24. On perusal of the record, the matter is pertaining to the dispute between the Directors of the company. It is 23 alleged by the complainant that by forging the signature of the complainant, the accused persons removed his name from the Company and sent the message to the Registrar of Companies, and web hosted and thereby they forged the signature of the complainant for removing the directorship.

25. In this regard, the learned senior counsel for the petitioners has contended that the Co-ordinate Bench of this Court in the case of Shaila Chebbi Govind and Others - Vs- State of Karnataka and connected matters case has quashed the FIR, similarly in this case on hand where the dispute between the directors by removing one of the Director of the company. On perusal of the judgment of the Shaila Chebbi stated supra, the Co-ordinate Bench of this Court has held at paragraphs 29, 30 and 31 are as under:-

29. In the first of the above complaints, it is alleged thanh cheubled had uploaded their names as directors of the company on the portal of the RoC on the basis of forged share transfer forms and have falsely claimed that the complainant, 24 his wife, Priyanka and Krishna Mohan Ramaneni have resigned from the directorship of the company.

30. The second of the above complaints is by a director and shareholder alleging that the accused named by him had forged his signatures on the share transfer forms and had uploaded their names as directors on the portal of the RoC and had indicated falsely that the complainant had resigned from the Board.

31. The third complaint is by the wife of Madhukar Angur, claiming as a director and share holder and her allegations are almost verbatim the same as that of her husband in the first complaint above.

26. On perusal of the said facts it is squarely applicable to the case on hand, the Co-ordinate Bench further held in Shaila Chebbi's case at paragraph Nos.45 and 46 are as under:-

45. As matters of law and procedure, in circumstances such as are highlighted in these petitions, it is clearly a matter covered under Chapter XIV of the Companies Act, 2013. Section 213 provides for the proper recourse available to a person or persons complaining of fraud, misfeasance or other misconduct committed in the management of the business, towards the company or towards any of its members. It would be a matter falling entirely in the jurisdiction of the National Company Law Tribunal, which shall first investigate the matter and thereafter have the persons who may be found on such investigation and enquiry being conducted, to have committed any acts of fraud or other acts of misfeasance or misconduct to be tried before the Special Court constituted to try offences under the Act. Section 213 of the Act, however, is yet to come into force as it has not been notified by the Government of India, in terms of sub -section (3) of section 1 of the 2013 Act.

46. The corresponding provision under the Companies Act, 1956 is section 237 thereof. In that, when the necessary 26 adjudication as to the validity or otherwise of statutory forms filed before the RoC are in dispute, the criminal court is hardly vested with the jurisdiction to adjudicate on the same, merely on the allegation of fraud and forgery. On the other hand, section 237 of the 1956 Act, clearly envisages a situation involving alleged fraud. It would therefore clearly to obtain a conviction against the accused without the concerned orients being rendered void or invalid. Hence, the complaints above referred filed prior to the petitioners having consented to the statutory forms being declared void by the RoC and the complaint or complaints in respect of the subsequent events of the petitioners resubmitting the statutory forms declaring the directorship of the petitioners and the resignation of the complainant and his wife, are an exercise in futility. The complainant and his wife will necessarily have to take recourse to section 237 of the 1956 Act. It may eventually result in prosecution under section 242 thereof. The complaints seeking prosecution for the alleged offences in respect of which a special procedure is provided is 27 thus misconceived and not maintainable. In so far as the complaint filed by Krishna Mohan Ramaneni is concerned, the same is now redundant in view of his stand as reflected hereinabove. Insofar as the complaints pertaining to the denial of the status of the complainant, Madhukar Angur, as the Chancellor, Alliance University and his subsequent removal from the said position, while incidentally reiterating th allegations which are the subject matter of the earlier complaints, against the accuse -petitioners, is certainly not a subject matter that can be adjudicated before t criminal court. There is no dispute that with the enactment of the Alliance University Act, 2010, it was Madhukar Angur who was named the Chancellor. It is also not in dispute that the term of office was for life. The Act does not provide for the removal of the Chancellor from office.

However, having regard to certain grave circumstances, the extreme measure of removal has been exercised. In this regard, the correctness or the validity of the same is necessarily to be answered by the State Government in terms of section 57 of the said 28 Act. Or it would be an option open for the complainant to approach such other forum which could exercise jurisdiction, in addressing the legality of such removal. But it is certainly not the criminal court which could address the issue. The reiteration of other allegations against the accused which are already subject matter of other omplaints referred to above would hardly clothe the court below with any such jurisdiction. In the result the writ petitions are allowed. The proceedings pending in Crime No. 76/2016, Crime No. 104/2015, Crime No. 108/2016, Crime No. 115/2016, Crime No. 105/2015, and Crime No. 97/2015 of Anekal Police Station and the order dated 29th September, 2015 passed in CC No. 955/2015, order dated 29th September, 2015 in CC No. 956/2015 and the order dated 27th July, 2015 in CC No. 701/2015 by the Principal Civil Judge and JMFC, Anekal, are hereby quashed.

27. On careful reading of the judgment of the Co- ordinate Bench, it is clearly applicable to the case on hand, where the allegation against the petitioner wherein he web 29 hosted the report to the Registrar of Companies by forging the signature. Therefore, as per Section 213 recourse available to the parties to approach the Company Law Tribunal. It also came to be known that the respondents already approached the Company Law Tribunal and the notice has been issued to the petitioners. Such being the case, the matter is purely pertaining to the company affairs. Though the respondent has produced a lengthy complaint before this Court, but those complaints are not part of the FIR, where the police have received a separate complaint and registered FIR. Therefore, the very complaint filed before the police registering the FIR in the company affairs is not maintainable. Therefore, the police are required to make a preliminary enquiry prior to registering the FIR in the company matters which is commercial matter. Therefore, as per the Lalita Kumari vs. Government of Uttar Pradesh and others reported in (2014) 2 SCC 1, the police prior to registering the FIR, they could have made preliminary enquiry and then registered FIR. Therefore, on this ground the FIR is not sustainable.

28. Learned senior counsel also relied upon another judgment passed by the Coordinate Bench in Crl.P.No.3550/2017 dated 21.10.2022 in SRI. M. GOPAL Vs SRI. GANGA REDDY in similar company matters, the coordinate bench quashed the Criminal proceedings. The Delhi High court in the case of RK Guptha Vs Union of India reported in AIR Online 2023 Delhi 1414 in a company matter, the Delhi high court also quashed the investigation.

29. Learned counsel for the respondent and learned High Court Government Pleader has contended that the court can transfer investigation to SFIO for investigation, when the matter was seized by the law tribunal and when it is found that the serious fraud is committed as per the charge XIV of the Companies Act, the tribunal can refer the matter for Investigation by inspector to investigate the company affairs, with Serious Fraud Investigation Office as per section 211 of Companies Act. Therefore, I am of the view that registering the FIR and investigating the matter by 31 police, in the company affairs is not acceptable when the matter is already pending before the NCLT and the NCLT can refer the matter to the inspector SIFO for investigation. Therefore, the FIR registered by the police is not sustainable under the law.

30. That apart, accused Nos.5 and 6 are the auditor as well as Secretary, they executed the work of the Company as per the AGM consisting by accused Nos.1 to 4. Therefore, there is no material placed on record as against accused Nos.5 and 6. Hence, the FIR against accused Nos.1 to 6 are not sustainable under law. Hence, this criminal petitions filed by accused Nos.1 to 6 in Crl.P.Nos.3591/2022, 5537/2022 and 5915/2022 deserves to be allowed.

31. As regards to the Crl.P.Nos.2328/2023 and 12668/2023 filed by the petitioners/accused for quashing the FIR registered by the police arising out of PCR referred by the respondent and inturn a case in Crime No.4/2023 was filed. The respondent No.2 filed private complaint 32 under Section 200 of Cr.P.C., and got it referred to the police under Section 156(3) of Cr.P.C.

32. Learned senior counsel appearing for the petitioners contended that the accused was one of the Directors and he requested the complainant for coming to the office on 11.9.2021 and he has been permitted to come to meet some friends. But later in the evening, he went back and the complainant not suspected anything, but later came to know that the accused said to be stolen the documents and shifted by packing 10 boxes of the documents, which was alleged to have been supported by the accused No.2. Learned counsel further contended that the accused No.1 already filed complaint against respondent and others. A Criminal case has been already registered against them in the same police station for removing the petitioner No.1 from the post of the Director, which was already challenged before the NCLT. Therefore, it is contended that the petitioner not approached the police and not complied as per the guidelines issued by the PRIYANKA 33 SRIVASTAVA AND ANOTHER vs. STATE OF UTTAR PRADESH AND OTHERS reported in (2015) 6 SCC 287 and directly filed complaint and got it referred. There is delay in lodging the complaint. This complaint is counter blast to the complaint filed by the petitioner against the respondent. A stay was granted by the NCLT which is still operating. It is further contended that as per the complaint, the petitioner resigned/removed from the post of Director on Feb-2020 itself and he is not coming to the office. Therefore, question of coming to the office, stealing the documents on 11.9.2021 cannot be acceptable. Further contended that all the documents are available in website. The same was obtained by the petitioner and filed the case against the respondent before the NCLT. Therefore, there is no question of theft of any documents and there is no case made out against the petitioner. Hence, prayed for quashing the same.

33. Per contra, learned senior counsel appearing for the respondent No.2 has contended, the police have 34 investigated the matter and filed the charge sheet. If there is any illegality, the police could not have filed charge sheet. In the meanwhile, charge sheet has been filed, therefore FIR cannot be quashed. Further contended that the statement of the witnesses dated 11.1.2024 clearly reveals 10 boxes were taken by the accused under the guise of taking the documents to the auditor office and later on, the he got shifted to another vehicle. The driver of the auto rickshaw also given statement. Therefore, there is a clear case of theft committed by the petitioner and hence prayed for dismissing the petitions.

34. Learned HCGP, Smt. Rashmi patel also supported the case of the prosecution stating that there are 3 eye witnesses examined by the police, which reveals stealing of the documents from the office by the accused. Therefore, FIR or charge sheet cannot be quashed. Hence prayed for dismissing the petition.

35. On hearing the arguments, perusal of the records, which reveals that there is a complaint filed by the 35 petitioner No.1 against the respondent and others. The same was registered in Crime No.17/2022 in the same police station, where the police have taken up the investigation,. The allegation made by the petitioner was that the respondent by forging the documents and signature of the petitioner No.1, removed the petitioner from the Directorship of the Company and the same was reported to the Registrar of Companies by uploading the same in the website. It is contended by the petitioner that the accused persons colluded together and removed him from the post. After obtaining the documents, he has approached the NCLT and obtained the stay, which is operating. In the meanwhile, the respondent No.2 filed complaint against the petitioner stating that the documents filed by the petitioner before the NCLT are all stolen from the company on 11.9.2021. The complaint has been filed before the Magistrate and got it referred to the police. It is stated by the petitioner that this complaint is a counter blast to the complaint filed by the petitioner. On perusal of the dispute between the parties, it is a company affairs and mis 36 management and removing the petitioner from post of Directorship by the other directors of the company. The complaint against the respondent by this petitioner is that the complainant was cheated with Rs.2.5 crores without paying his investment money. The dispute is already seized by the NCLT. NCLT requires to consider whether the removal of the petitioner from the post of Directorship is in accordance with law or any forgery was committed or not? If the NCLT found any prima facie case for forging the documents by the complainant then the NCLT can direct the SFIO to investigate the matter and file the report. This court already taken view in the connected matter stated above filed by the respondent and others for challenging the FIR in Crime No.17/2022. Admittedly, this complaint filed by respondent No.2 is nothing but counter blast on the petitioners. The petitioners said to be taken the documents from the company and utilized for filing the petition before the NCLT. The post of directorship of the petitioner and his removal was not been adjudicated by the NCLT or Registrar of Companies. Such being the case, the police cannot 37 investigate the matter in respect of company affairs. The same view taken in the above said case. Therefore, the question of theft and destroying the evidence does not arises The documents of the company will be available with the Registrar of Companies and in the company itself. that can be summoned by the NCLT while adjudication of the dispute.

36. The police have not produced any documents to show that there was conspiracy between accused Nos.1 and 2 and stolen the documents. Therefore, I am of the view the police cannot investigate and file the charge sheet for the company affairs in view of the judgment passed by the coordinate bench of this court in Neha Rafiq Chachadi case, stated supra.

Therefore, the FIR in Crime No.17/2022 registered by Vyalikaval Police Station and consequential charge sheet filed by the police requires to be quashed.

Accordingly, I proceed to pass the following order; 38 The Crl.P.Nos.3591/2022, filed by the petitioner/accused Nos.1 to 4, Crl.P.No.5537/2022 filed by the accused No.5, and Crl.P.No.5915/2022 filed by accused No.6 are allowed.

Consequently, the FIR in Crime No.17/2022 registered by Vyalikaval Police Station is hereby quashed.

Crl.P.No.2328/2023 and Crl.P.No.12668/2023 filed by the accused Nos.1 and 2 respectively are allowed.

The FIR in Crime No.4/2023 registered by Vyalikaval Police Station on the complaint filed by the respondent arising out of PCR No.17219/2022, is hereby quashed.

Both parties are allowed liberty to contest their matter before the NCLT.

Sd/-

(K.NATARAJAN) JUDGE CS/VS/AKV CT:SK

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