Madras High Court
Viswapriya Financial Services & ... vs Reserve Bank Of India on 3 February, 2015
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.02.2015 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR CrlRC.No.SR.51552 of 2014 and M.P.No.1 of 2014 1.Viswapriya Financial Services & Securities Limited, rep.by its Director, Mr.R.Subramanian 2.R.Subramanian ... Petitioners vs. Reserve Bank of India, Fort Glacis, Rajaji Salai, Chennai-600 001. ... Respondent PRAYER: Criminal Revision Case filed under Sections 397 and 401 of Criminal Procedure Code to set aside the order dated 01.07.2009 taking cognizance of the complaint in EOCC No.343 of 2009 on the file of the learned EO-I, Additional Chief Metropolitan Magistrate, Egmore, Chennai. For Petitioner : Mr.Prakash Goklaney For Respondent : Mr.Poornam JUDGMENT
Being aggrieved by the order dated 01.07.2009 in EOCC.No.343 of 2009 on the file of the learned EO-I Additional Chief Metropolitan Magistrate, Egmore, Chennai, taking cognizance, Criminal Revision Case is filed with the delay of 1856 days.
2.The 1st petitioner is Viswapriya Financial Services & Securities Limited, (now Viswapriya (India) Limited) represented by its Director, R.Subramanian. The 2nd petitioner is the Director R.Subramanian. The reason assigned in the supporting affidavit for condonation of delay is that, after the order of taking cognizance dated 01.07.2009, the petitioners herein along with other accused A3 and A5, filed a petition under Section 482 CrPC, in Crl.OP.No.22190 of 2009, to quash the proceedings, during October 2009. Subsequently, that petition was withdrawn on 30.11.2011.
3.Petitioners have further contended that Mr.G.Ramanujam, General Manager, A4, filed a quash petition under Section 482 CrPC in Crl.OP.No.27131 of 2011. By order dated 16.11.2011, the proceedings against him was quashed. Aggrieved by the same, Reserve Bank of India, Chennai, filed an appeal in SLP.No.2155 of 2012 before the Hon'ble Apex Court and it is still pending on the file of the Hon'ble Supreme Court. It is further submitted that Viswapriya Financial Services & Securities Limited, (now Viswapriya (India) Limited) has been impleaded in SLP and put on notice in the SLP. The Petitioner has also entered appearance.
4.On 04.06.2014, Reserve Bank of India, Chennai, filed a Memo before the learned EO-I, Additional Chief Metropolitan Magistrate, Egmore, Chennai, stating that there is no Stay or order of Status-Quo by the Hon'ble Supreme Court and therefore, the trial can be proceeded. It is the case of the petitioners that since the Hon'ble Apex Court had seized up the matter, they were awaiting the results of SLP No.2155 of 2012, so that a similar stand can be taken by the petitioners also. It is submitted that since it is likely that the Hon'ble Apex Court may take some more time to arrive at the finality, and having regard to the fact that the respondent is not willing to wait till such time and decided to proceed with the trial, as against the other accused, including the petitioners, it has become necessary for the petitioners to prefer the present revision case.
5.The petitioners also contended that the learned counsel's wife fell ill from April 2014 to June 2014 and therefore, he could not attend to his work till July 2014. Thus, the revision petition came to be filed with a delay of 1856 days. According to the petitioners, the delay is neither wilful nor wanton.
6. In addition to the above, Mr.Prakash Goklaney, learned counsel for the petitioners submitted that the 1st petitioner Company is a Non-Banking Financial Company. At the time of hearing of the quash petition in Crl.OP.No.22190 of 2009, there was no evidence to prove that Reserve Bank of India, Chennai, had jurisdiction to proceed against a non-banking Compan and therefore, quash petition was withdrawn. There was no order of merits. He reiterated that Reserve Bank of India, Chennai, has no jurisdiction to proceed against the Non-Banking Financial Company.
7. Inviting the attention of this Court to the communication of Reserve Bank of India, Chennai, dated 13.08.2014, addressed to one Mr.V.Shanmugam, learned counsel for the petitioner submitted that there is no evidence to prove that Reserve Bank of India, Chennai, can proceed against the petitioner.
8.He further submitted that even the complainant was keeping quiet until filing of the memo dated 04.06.2014 before the learned EO-I, Additional Chief Metropolitan Magistrate, Egmore, Chennai. According to him, sufficient cause has been shown and therefore, prayed to condone the delay.
9.Referring to the counter affidavit, filed by the Assistant General Manager, Department of Non-Banking Supervision, Reserve Bank of India, Chennai, and the order made in Crl.OP.No.27131 of 2011, dated 16.11.2011, filed by G.Ramanujam, A4, in EOCC No.343 on the file of the learned EO-I, Additional Chief Metropolitan Magistrate, Egmore, Chennai, Mr.Poornam, learned counsel for Reserve Bank of India, Chennai, submitted that the plea raised in the quash petition by G.Ramanujam, A4, was that he had resigned from the abovesaid Company, on 25.12.2008 and that the same has been accepted on 30.01.2009, by the Registrar of Companies and in those circumstances, he cannot be made responsible for any offence, which arose subsequent to the resignation and acceptance. After perusal of records, the Court accepted the said plea and by order dated 16.11.2011, quashed the proceedings against the accused No.4.
10. Inviting the attention of this Court, to the averments, made in Para 7 of the supporting affidavit to MP.No.1 of 2014, filed for condonation, wherein the petitioners have contended that when SLP No.2155 of 2012, filed by the Reserve Bank of India, Chennai, was pending, on the file of the Hon'ble Supreme Court and Reserve Bank of India, Chennai, had desired to proceed with the trial, and on the stand now taken by the petitioners in this present revision petition, the learned counsel for Reserve Bank of India further submitted that it is not the case of R.Subramanian, Director of the Company, that he had resigned from the Board and therefore, not responsible for the act of the Company. He therefore submitted that the decision made in Crl.OP.No.27131 of 2011 filed by G.Ramanujam, A4, and the pendency of SLP No.2155 of 2012 cannot be taken advantage of by the petitioner filing the present revision petition with enormous delay.
11. Learned counsel for the respondent further submitted that the quash petition filed by the petitioners was withdrawn on 30.11.2011.
12.Learned counsel for the respondent has not made any serious objections for the delay period between April 2014 and July 2014.
13.He further submitted that the period between 2011 and March 2014, has not been properly explained. Nothing prevented the petitioner to approach this Court from assailing the correctness of the order taking cognizance between December 2011 and March 2014. According to him, when the grounds raised in Crl.OP.No.22139 of 2009, filed by Ramanujam, A4, are entirely different and when the delay has not been reasonably explained, petition filed for condonation deserved to be dismissed.
14.When EOCC.No.343 of 2009 was ready for trial, it was brought to the notice of the Court below, by filing a Memo dated 04.06.2014, stating that, there was no Stay or order of Status-Quo in the Apex Court and thus, the trial Court issued summons to the petitioners to appear.
15.On the merits, as to whether Reserve Bank of India, Chennai, has jurisdiction to proceed he submitted that after perusal of Form-32, which contained the name of A4, accepting the resignation, this Court, accepted the contentions of the accused No.4/petitioner therein, and accordingly, quashed the proceedings, insofar as A4 alone is concerned.
16.As rightly contended by the learned counsel for Reserve Bank of India, the case of the petitioners herein and in particular, R.Subramanian, one of the Directors, is not similar to that of Mr.G.Ramanujam, A4, against whom proceedings have been quashed. However, the order made in Crl.OP.No.27131 of 2011 has been challenged in SLP No.2155 of 2012, and it is stated to be pending.
17.It is the case of the petitioner that he has been impleaded in SLP and put on notice in the SLP. However, no materials have been filed. Even taking it for granted that the 1st petitioner has been put on notice, the contention of Reserve Bank of India, Chennai, in their memo dated 04.06.2014, filed before the learned EO-I, Additional Chief Metropolitan Magistrate, Egmore, Chennai, stating that there was no Stay or Status-Quo, by the Hon'ble Supreme Court, has not been disputed.
18.At Para 7 of the supporting affidavit, it is the case of the petitioners that they were awaiting results of the appeal filed by Reserve Bank of India so that a similar stand can be taken by the petitioners herein also. As observed in the forgoing paragraphs, stand of the petitioners is not similar. Therefore, the contention of the petitioners that they were awaiting for the results and they can also take a simiilar stand, cannot be countenanced.
19.It is the further submission of the learned counsel for the petitioner that Crl.OP.No.22190 of 2009 was filed by the accused 3 and 4, to quash the proceedings in EOCC.No.343 of 2009 on the file of the learned EO-I, Additional Chief Metropolitan Magistrate, Chennai, during October 2009 and subsequently, when the matter came up for hearing, it was observed that there was no evidence to support the contentions of Reserve Bank of India, Chennai, that it had no jurisdiction to proceed against the petitioners and under such circumstances, Crl.OP.No.22190 of 2009 was withdrawn. If that be the case, order made in Crl.OP.No.22190 of 2009, dated 30.11.2011, would have reflected the reasons for withdrawal. It is not the case of the petitioner that leave has been granted by this Court, to file a fresh petition, on the same ground.
20.Though the learned counsel for the petitioners submitted that all along the respondent remained quite and that the Court below has also adjourned the proceedings, until the filing of the memo dated 04.06.2014, which necessitated, the petitioners to file the revision petition, this Court is not inclined to accept the said reasons. The petitioners are very much aware of the proceedings. Quash petition has been dismissed in 2011.
21.From the supporting affidavit to the condonation petition, it could be deduced that the challenge in SLP No.2155 of 2012 was to the order made in Crl.OP No.27131 of 2011, quashing the proceedings against the accused No.4/Mr.G.Ramanujam, on the ground that no prosecution could not be proceeded against him, as he had already resigned and that the same was also accepted by the Registrar of Companies. Only when the case is ripe for trial, the defacto complainant/Reserve Bank of India, Chennai, has brought to the notice of the Court below that there was no Stay or order of Status-Quo, ordered by the Hon'ble Apex Court. Therefore, it cannot be contended that the respondent keeping quiet for so many years. On the contra, it is the petitioner, who were not diligent in taking up the cause. Though contentions have been made based on the communication dated 13.08.2013, refer to the above, as rightly contended, it is the matter of evidence.
The reasons for the delay between December 2011 and March 2014, assigned in the supporting affidavit, are not satisfactory. There is an inordinate delay which has not been reasonably explained. Sufficient cause has not been shown and hence, this petition is dismissed and consequently, Criminal Revision Case in Crl.RC.SR.No.51552 of 2014 is dismissed.
03.02.2015 Index : Yes/No Internet : Yes/No mps To
1.The EO-I, Additional Chief Metropolitan Magistrate, Egmore, Chennai.
2.The Public Prosecutor, High Court of Madras, Chennai.
S.MANIKUMAR,J, mps CrlRC.No.SR.51552 of 2014 and M.P.No.1 of 2014 03.02.2015