Delhi District Court
Sh. Varun Rai & Anr vs Serious Fraud Investigation Officer on 22 August, 2017
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IN THE COURT OF SH.NARINDER KUMAR:SPECIAL JUDGE2
NDPS ACT:(CENTRAL DISTRICT):TIS HAZARI COURT:DELHI
CR No. : 377/2017
Date of institution: 22.08.2017 Decided on: 22.08.2017
In the matter of:
Sh. Varun Rai & Anr. .....Petitioners
Versus
Serious Fraud Investigation Officer .....Respondent
JUDGMENT
Petitioners herein have been summoned as accused in complaint case no. 293812/16, vide order dated 05.08.2017 for an offence under Section 621 read with Section 628 of Companies Act. They have challenged an earlier order dated 15.07.2017 passed by Learned Additional Chief Metropolitan 2 Magistrate, Central District, Delhi vide which it has been held that the criminal complaint filed by complainant has been filed within limitation.
2. It may be mentioned here that earlier when learned Additional Chief Metropolitan Magistrate took cognizance of the offence in the same complaint vide order dated 04.07.2007 and ordered for issuance of process against the accused, including the two petitioners and the said order was challenged by way of 11 revision petitions.
3. Criminal Revision Petition no. 06/09 filed by the two petitioners were partly allowed thereby setting aside the order dated 04.07.2007 vide which cognizance was taken and accused persons were summoned. Order was set aside with the direction to the Trial Court to consider if the complaint was time barred and whether or not the delay in filing thereof was to be 3 condoned. This point was directed to be considered after hearing the accused persons.
Since learned Trial Court has held vide impugned order that the complaint is within limitation, petitioners have challenged the same feeling aggrieved by the said order.
4. Learned Counsel for petitioner submits that learned Trial Court has erred in holding that the complaint is within limitation. Learned Counsel for petitioners has placed reliance on decision in N. K. Kumar v. M. O. Roy, Assistant Director, Serious Fraud Investigation Office, Ministry of Company Affairs, Government of India [2007] 80 SCL 55 (Mad) wherein Hon'ble Madras High Court upheld the contention raised on behalf of the petitioner therein that knowledge of commission of offence under the Companies Act must have come to the notice of the Central Government on 19.09.1996 i.e. date of declaration 4 of dividend.
5. In N. K. Kumar's case (Supra), complaint was filed alleging nonpayment of dividends and nonpassing of warrants for financial year 199596 to 19992000 within the stipulated time. The allegation was that the petitioner company had delayed in passing the dividends account of the company and failed to distribute the dividend within the stipulated period.
Hon'ble High Court of Madras while referring to the provisions of Section 468 (2)(b) of CrPC and provisions of 207 of Companies Act held that the complaint preferred by the respondent therein was barred by limitation for the reasons recorded in para no. 9.10 of the judgment.
6. Herein, undisputedly, criminal complaint came to be filed on 17.05.2007 alleging commission of offences under Section 621 for violation of Section 628 of Companies Act. 5
7. In the course of arguments, learned counsel for petitioner has submitted that the complaint could be filed within a period of three years for the said offence i.e. under Section 621 read with Section 628 of Companies Act.
8. As alleged in the complaint, investigation under Section 237 (b) of the Companies Act was directed by Hon'ble National Company Law Board vide order dated 22.03.2005. Thereupon, vide order dated 18.05.2005, Central Government directed investigation into the affairs of the company. Vide order dated 15.1.20005, Joint Director (Custom) was appointed as the Inspector. Investigation was conducted from 18.08.2005 to 17.03.2006 on the basis of various records of the company including the records filed by the company with the office Registrar of Companies, Delhi and Haryana.
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9. As alleged in the complaint, Varun Raipetitioner participated in the investigation on 02.12.2005 but left midway assuring to join investigation on 14.12.2005. However, he did not turn up thereafter though questionnaire was supplied to the petitioners and another for their answers. Their answers were found to be vague and evasive. IO submitted report to Government of India under Section 241 of Companies Act. On submission of report, Government of India, Ministry of Companies Affairs directed the office of the complainant vide letter dated 17.08.2006 to file the present complaint which led to filing of complaint on 17.05.2007.
On the aforesaid facts, it was specifically alleged in the complaint that the same was being filed well within the period of limitation as contemplated under Section 468 CrPC. 7
10. In N. K. Kumar's case (Supra) admittedly proceedings were not initiated on the basis of any order passed by Hon'ble Company Law Board. This goes to show that the decision in N. K. Sharma's case (supra), cited by learned counsel for petitioners is distinguishable on facts. Herein, authorities were duty bound to comply with order dated 22.03.2005 passed by Hon'ble National Company Law Board. Therefore, Court does not find any merit in the contention raised by learned counsel for the petitioners that the Central Government already knew of the alleged commission of offence in the year 199798.
11. In view of the above discussion, the order dated 15.07.2017 passed by Learned Additional Chief Metropolitan Magistrate, vide which the complaint has been held to have been filed within stipulated period of limitation, does not suffer from any illegally or irregularity. Accordingly, this revision petition is 8 hereby dismissed.
12. Trial Court record be returned. File of revision petition be consigned to RecordRoom.
Announced in the open Court on this 22th day of August, 2017 (NARINDER KUMAR) SPECIAL JUDGE, NDPS02 (CENTRAL) TIS HAZARI COURTS, DELHI