Allahabad High Court
B.N. Mishra vs State Of U.P. And Another on 15 October, 2020
Author: Ravi Nath Tilhari
Bench: Ravi Nath Tilhari
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 6 Case :- APPLICATION U/S 482 No. - 12677 of 2020 Applicant :- B.N. Mishra Opposite Party :- State of U.P. and Another Counsel for Applicant :- Madan Ji Pandey Counsel for Opposite Party :- G.A. Hon'ble Ravi Nath Tilhari,J.
Sri Diptiman Singh Advocate has filed Vakalatnama on behalf of opposite party no. 2 today in court which is taken on record.
Heard Sri Sudhanshu Pandey holding brief of Sri Madan Ji Pandey learned counsel for the applicant, Sri Diptiman Singh learned counsel for opposite party no. 2 and Sri Pankaj Saxena learned A.G.A for the State. Perused the material available on record.
The applicant has challenged the summoning order dated 26.02.2019 passed by Special Chief Judicial Magistrate, Meerut, in Complaint Case No. 6541 of 2018 (Modi Industries Vs. B.N. Mishra), under section 452 Indian Companies Act, P.S. Modinagar, District Ghaziabad as well as the proceedings of the said compliant case.
The opposite party no. 2 filed the complaint case against the applicant being Criminal Case No. 8002 of 2018 ((M/s. Modi Industries Ltd through Nawab Ali Manager Law and Administrative Vs. B.N. Mishra) on the averments inter alia that the applicant was the employee of the complainant Company in its Unit Modi Steels and during the course of employment he was allotted Company's' Quarter No. B-9, Sikri Road, Modi Steels Colony, Modinagar District Ghaziabad with the specific condition that the same would be vacated by the applicant as and when he ceased to be the employee of the complainant Company. The applicant ceased to be the employee of the complainant Company w.e.f 23.03.1993 due to closure of the Unit Modi Steels, but in spite of several request, oral and written the applicant did not vacate the allotted premises and his possession became unauthorized and unlawful. Consequently applicant was liable to be punished under section 452 of Indian Companies Act and an order for delivery of possession was also requested to be passed in favour of Company.
On 28.09.2020, in view of the submission made by learned counsel for the applicant on that date that Special Chief Judicial Magistrate, Meerut had no jurisdiction in the matter as it pertained to District Ghaziabad, learned A.G.A was granted time to seek instructions.
Today learned A.G.A. and learned counsel for the opposite party no. 2 have placed on record the notification bearing no. 1723/vii Nyaya 2-225-79, on dated May 16th 1996, and have submitted that the Court of Special Chief Judicial Magistrate-Ist Class Meerut has been established for Ghaziabad District as well.
In view of the above, notification and the submissions advanced, the challenge to the summoning order on the ground of jurisdiction of the learned Magistrate does not survive.
Let copy of the notification be kept on record of this case.
Learned counsel for the applicant has submitted that the summoning order dated 26.02.219 shows that (i) it has been passed in complaint case no. 6541 of 2018 whereas against the applicant complaint case no. 8002 of 2018 was registered, (ii) The statement of Mahesh Dutt Tyagi under section 200 Cr.P.C. was considered and on such consideration the summoning order was passed, but in the case of applicant Mahesh Dutt Tyagi was not examined under section 200 Cr.P.C., instead, Nawab Ali was examined on 01.12.2018, (Annexure no. 8) and (iii) the case of Sushil Kumar Bindal was being considered by the learned Magistrate but the summoning order has been passed against the applicant.
Learned counsel for the applicant submits that on the basis of statement of Mahesh Dutt Tyagi no summoning order could be passed against the applicant and in this respect the learned Magistrate has failed to pass a judicious order.
Sri Diptiman Singh learned counsel for opposite party no. 2 on the basis of instructions submits that opposite party no. 2 shall not file any counter affidavit and the matter be heard and decided at this stage itself. He fairly submits that the summoning order of the learned Magistrate suffers from manifest error of law and the order under challenge does not consider the statement of Nawab Ali recorded under section 200 Cr.P.C, but the summoning order has been passed on consideration of statement of Mahesh Dutt Tyagi, but he was not examined in the complaint case filed against the applicant. He submits that there were other complaints as well against other employees of the Company and in those cases the statement of Mahesh Dutt Tyagi might have been recorded. He submits that the Complaint Case No. 6541 of 2018 is the new computerized number of the Complaint Case No 8002 of 2018 filed against the applicant. Learned counsel for opposite party no. 2 lastly submits that the learned Magistrate may be directed to pass fresh orders in the case of applicant as per law.
I have considered the submission advanced by the learned counsel for the parties and perused the material on record.
From perusal of summoning order it is evident that the same has been passed against the applicant on consideration of statement of Mahesh Dutt Tyagi recorded under section 200 Cr.P.C., but not in the case of applicant, the statement of Nawab Ali was recorded under section 200 Cr.P.C. The summoning order does not consider statement of Nawab Ali. The error in the order under challenge is apparent. On the basis of statement of Mahesh Dutt Tyagi, recorded in different complaint case, the applicant could not be summoned as on the basis of statement of Mahesh Dutt Tyagi it can not be said that any prima facie case for summoning was made out against the applicant under section 452 of Indian Companies Act. If the impugned order is allowed to stand the same shall be abuse of the process of the Court and in order to secure the ends of justice, the order under challenge deserves to be set aside.
Accordingly the summoning order dated 26.02.2019 passed by Special Chief Judicial Magistrate, Meerut, in Complaint Case No. 6541 of 2018 (Modi Industries Vs. B.N. Mishra), under section 452 Indian Companies Act, P.S. Modinagar, District Ghaziabad is set aside. It is open to the learned Magistrate to pass fresh orders, strictly in accordance with law, in the case of present applicant.
This application under section 482 Cr.P.C. is allowed.
No orders as to cost.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 15.10.2020/Vikram