Allahabad High Court
Vandana Yadav And Another vs State Of U.P. Thru. Prin. Secy. Home ... on 8 May, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Case :- APPLICATION U/S 482 No. - 9389 of 2022 Applicant :- Vandana Yadav And Another Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Sectt. U.P. Lko. And Another Counsel for Applicant :- Aditya Vikram Singh,Nadeem Murtaza,Sheeran Mohiuddin Alavi Counsel for Opposite Party :- G.A.,Lalta Prasad Misra,Prakhar Misra Connected with Case :- APPLICATION U/S 482 No. - 9392 of 2022 Applicant :- Vandana Yadav And Another Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another Counsel for Applicant :- Aditya Vikram Singh,Nadeem Murtaza,Sheeran Mohiuddin Alavi Counsel for Opposite Party :- G.A.,Arunendra Mohan Shukla,Dhruv Mathur,Dr.L.P. Mishra and Case :- APPLICATION U/S 482 No. - 9393 of 2022 Applicant :- Vandana Yadav And 4 Others Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another Counsel for Applicant :- Nadeem Murtaza,Aditya Vikram Singh,Sheeran Mohiuddin Alavi Counsel for Opposite Party :- G.A.,Lalta Prasad Misra,Prakhar Misra and Case :- APPLICATION U/S 482 No. - 9394 of 2022 Applicant :- Vandana Yadav And Others Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another Counsel for Applicant :- Nadeem Murtaza,Aditya Vikram Singh,In Person,Sheeran Mohiuddin Alavi Counsel for Opposite Party :- G.A.,Arunendra Mohan Shukla,Dhruv Mathur,Lalta Prasad Misra Hon'ble Mohd. Faiz Alam Khan,J.
Heard Shri Anoop Trivedi, learned Senior Advocate assisted by Shri Vikas Tiwari along with Shri Nadeem Murtaza, learned counsels for the applicants as well as Dr. Lalta Prasad Mishra along with Shri Prafulla Tiwari, learned counsel for the opposite party no.2 and learned A.G.A. for the State and also perused the written submissions filed by the parties as well as record.
All the above four applications moved under Section 482 Cr.P.C. appears to be connected with the same cause of action and for the sake of convenience are being disposed of by this common order.
The Application U/s 482 Cr.P.C. No.9389 of 2022 has been moved by the applicants - Yandana Yadav and Vivek Yadav with the prayer to quash entire proceedings of Case No.28359 of 2022 (State Vs. Vandana Yadav and another) and any other proceedings initiated in respect of the first information report bearing Case Crime No.896 of 2021, registered at Police Station Gomti Nagar, Lucknow under Sections 409, 420 I.P.C. as well as summoning order order dated 20.04.2022 passed by the Chief Judicial Magistrate, Lucknow and charge sheet dated 09.04.2022.
The F.I.R. pertaining to this case has been lodged on 15.11.2021 at Police Station Gomti Nagar, Lucknow East by opposite party no.2 namely Prashant Singh against the applicants Vandana Yadav and Vivek Yadav alleging that the applicant Vandana Yadav was a Director of M/s Piscesia Power Transmission Pvt. Limited (hereinafter to be referred as P.P.T.P.L.) along with the informant and the lurement given by the applicant Vandana Yadav and her husband Vivek Yadav, the informant Prashant Singh had transferred Rs.1,33,20,000/- in their company namely M/s Viva Infratech Private Limited wherein the informant was also a Director for sometime and the money, which was transferred by the informant, was pertaining to the purchase of a commercial plot at Ghaziabad Development Authority and the informant was having half share of the same and the applicants had also assured the informant that the registry of the plot would be executed in his favour also, but neither the sale deed was executed in his favour nor the money, which was given by the informant to the applicants was returned back and the same has been misappropriated. The investigating officer after investigation has submitted charge sheet against the applicants Vandana Yadav and Vivek Yadav under Sections 409, 420 I.P.C. and the Magistrate concerned has also taken cognizance of the offences under Sections 409, 420 I.P.C. and has issued summons to the applicants to face trial.
The F.I.R. pertaining to the Application U/s 482 Cr.P.C. No.9392 of 2022 bearing Case Crime No.899 of 2021 has been lodged by the informant Prashant Singh against the applicants Vandana Yadav and Vivek Yadav on 15.11.2022 at Police Station Gomti Nagar, Lucknow East alleging therein that the applicants had asked him to lend Rs.50 lakhs and the informant keeping in view their old relations had transferred Rs.50 lakhs from his company namely J.B. Test Commissioning Private Limited through cheque dated 16.01.2019 drawn on Dena Bank, which was transferred to the company of the applicants namely SVY Infrastructure Private Limited with the promise that they will return the same in next six months but the money was never returned back despite demand by the informant and the same has misappropriated. After investigation, charge sheet in this case was filed under Sections 409, 420 I.P.C. and the Chief Judicial Magistrate, Lucknow has also taken cognizance of the offences under Sections 409, 420 I.P.C. and issued process of summons against the applicants vide order dated 20.04.2022. The applicants have prayed to quash the entire proceedings of Case No.28360 of 2022 (State vs. Vandana and another), charge sheet filed by the investigating officer dated 09.04.2022 and summoning order passed by the Chief Judicial Magistrate, Lucknow dated 20.04.2022.
In Application U/s 482 Cr.P.C. No.9393 of 2022, the applicants namely Vandana Yadav, Vivek Yadav, Tushar Nagar, Manoj Kumar Singh and Vinod Kumar Singh have prayed to quash the entire proceedings of Case No.51236 of 2022 (State Vs. Vandana Yadav and others) pending before the Chief Judicial Magistrate, Lucknow arising out of F.I.R. bearing Case Crime No.898 of 2021 registered at Police Station Gomti Nagar, Lucknow under Sections 409, 420, 467, 468, 471, 120-B I.P.C. and also to quash the charge sheet submitted by the investigating officer dated 18.05.2022 and summoning order dated 25.05.2022 passed by the Chief Judicial Magistrate, Lucknow.
The F.I.R pertaining to this case has been lodged by opposite party no.2/informant Prashant Singh against the applicants on 15.11.2021 at Police Station Gomti Nagar, Lucknow East alleging therein that the informant Prashant Singh is the Director and share holder of P.P.T.P.L. and the said company was established by him using his own means and capital and he is thefounding Director and share holder of the company. It is also stated that the applicant Smt. Vandana Yadav was also a Director and share holder of the company. Initially the registered office of this company was at Vikas Nagar thereafter it was shifted to Vibhuti Khand, Gomti Nagar, Lucknow in the property owned by the informant. It is alleged that the applicants/accused persons in furtherance of a conspiracy has overtaken the management of the company, while only Rs.28 lakhs were invested by Smt. Vandana Yadav in the year 2014 while rest of the capital was arranged by the informant and the accused persons in furtherance of the conspiracy has also included another business unit namely Ekai M/s Bigha Infraventure Private Limited without investing any capital and the accused/applicant Tushar Nagar, who is the chartered accountant, had obtained signature of the informant on blank papers and all accused persons have misappropriated the capital of the company and in furtherance of the same accused/applicants Vandana Yadav has syphoned Rs.5 crores to her other company SVY Infrastructure Private Limited and she had purchased a residential plot out of the same. It is also alleged that the applicant Vandana Yadav has also transferred Rs.58,88,352/- and Rs.15 lakhs illegally to M/s Shalimar Corporation Limited and M/s SAS Hotel and Properties Private Limited and she has also purchased a car from the capital of the company. It is also alleged that the accused persons have also instigated the informant to invest Rs.6 crores and have misappropriated the same and despite demand have not returned the same. It is also alleged that one of the accused applicant namely Kulvinder Singh is an absconder and is a sharp shooter of one mafia don Chota Shaqeel and the accused persons by hatching conspiracy had defrauded the informant of Rs.6 crores. The informant is also given a list of alleged illegal monetary transactions committed by the accused persons. It is also alleged that when the illegalities being committed by the accused persons surfaced, they had called an extraordinary meeting of the company without any resolution so that they can grab the company in order to shield their illegal activities and the applicant aggrieved by the same had approached National Company Law Tribunal. It is also stated that by hatching a criminal conspiracy, the accused applicants have defrauded the informant of Rs.72 crores. After investigation charge sheet has been filed by the investigating officer under Sections 409, 420, 467, 468, 471, 120-B I.P.C. and the Chief Judicial Magistrate, Lucknow has also taken cognizance of the offences and issued process vide order dated 25.05.2022.
The Application U/s 482 No.9394 of 2022 has been preferred by the applicants Vandana Yadav, Vivek Yadav and Manoj Kumar Singh requesting to quash the charge sheet dated 11.04.2022 in pursuance of the investigation done pertaining to the F.I.R. bearing Case Crime No.894 of 2021, under Sections 409, 420, 120-B I.P.C., Police Station Gomti Nagar, Lucknow East and summoning order dated 20.04.2022 passed by the Chief Judicial Magistrate, Lucknow and all the proceedings of the Case No.62652 of 2022 (State Vs. Vandana Yadav and others), arising out of Case Crime No.894 of 2021, under Sections 409, 420, 120-B I.P.C., Police Station Gomti Nagar, Lucknow East.
The F.I.R. of the this case has been lodged by the opposite party no.2 Prashant Singh on 15.11.2021 at Police Station Gomti Nagar, Lucknow East against the accused persons namely Vandana Yadav, Vivek Yadav, Tushar Nagar and Manoj Kumar Singh alleging therein that the informant is the Director and share holder of P.P.T.P.L. and on an internal assessment made certain financial irregularities had emerged for which the former directors of the company namely Smt. Vandana Yadav, Vivek Yadav and the then chartered accountant Tushar Nagar were responsible, who in connivance with each other were causing huge loss to the company. It is also alleged that the informant had filed a petition before the National Company Law Tribunal, Allahabad. The company is working at various projects and payment of the same is being credited in account maintained at Dena Bank, Hazaratganj Branch, Lucknow and from this bank credit facility as well as bank guarantee has also been made available and with regard to that the personal properties of the informant are mortgaged, however, the accused Vivek Yadav in connivance with other accused persons has opened a new bank account at Bank of Maharashtra, Gomti Nagar Branch, Lucknow and requested that payment of the above mentioned projects be credited in the new bank account and therefore, the accused persons have misappropriated a huge amount. After investigation, the investigating officer has submitted charge sheet under Sections 409, 420, 120-B I.P.C. and the Chief Judicial Magistrate, Lucknow has also taken cognizance vide order dated 20.04.2022 and issued process against the applicants pertaining to which the above mentioned applications under Section 482 Cr.P.C. have been filed.
Learned counsels for the petitioners in all the above applications moved under Section 482 Cr.P.C., vehemently submit that the First Information Report in the above mentioned cases was lodged by the opposite party no.2 on the basis of false and concocted facts and the Investigating Officer of the cases has not investigated the allegations of the F.I.R. in right perspective and has submitted the charge sheets without making fair investigation.
It is further submitted that after lodging of the First Information Report pertaining to F.I.R. bearing Case Crime No.898/2021, under Sections 409, 420, 467, 468, 471 of I.P.C. at Police Station Gomti Nagar, Lucknow, the accused persons/applicants had approached a Division Bench of this Court by filing a Writ Petition (M/B) No.27846 of 2021 and the Division Bench of this Court vide detailed order dated 30.11.2021 passed therein relying on the judgment rendered by the High Court of Madras in Doraisamy and another Vs. State, represented by Inspector of Police, CCB and another, reported in (2019) SCC OnLine Mad. 1354, stated to be affirmed by the Hon'ble Supreme Court and keeping in view the guidelines highlighted by the Hon'ble Supreme Court in State of Haryana Vs. Bhajan Lal, 1992 Supp. (1) SCC 335, found that prima facie the case is covered by the guidelines contained in Bhajan Lal's case (supra) and after holding the same interim protection was granted to the accused persons of that case. However, on the filing of charge sheet the writ petition was dismissed as has become infructuous and the accused persons/applicants had challenged the said order by filing a Special Leave to Appeal (Crl.) No.9898/2022 and vide order dated 04.11.2022 though permission to file appeal was granted but the Hon'ble Supreme Court was not inclined to issue notice and opined that the petitioners (applicants herein) can take recourse to appropriate remedy consequent to the filing of the charge sheet by taking proceedings in accordance with law.
It is vehemently submitted that the First Information Reports pertaining to the above mentioned cases have been filed with evident malafide as the informant/opposite party no.2 failed to obtain desired relief from the National Company Law Criminal.
Elaborating further, it is submitted that all the First Information Reports lodged by the opposite party no.2 pertaining to which charge sheet has also been filed primarily relate to the disputes which are in relation to the administration of the Company and the dispute is admittedly pending for consideration before the National Company Law Tribunal, Allahabad is purely of civil in nature and the same has been given the colour of the criminal prosecution.
It is vehemently submitted that the informant/opposite party no.2 had earlier invoked the jurisdiction of N.C.L.T, Allahabad by filing a petition under the relevant provision of the Companies Act and when he did not get the desired order as prayed by him in those proceedings pending before the N.C.L.T., four First Information Reports have been lodged on the same day.
While referring to various documents available on record, it is vehemently submitted that keeping in view the Scheme of Companies Act, 2013 a detailed procedure has been provided for redressal of any grievance of any affected party with regard to the disputes pertaining to the management of the Company as defined in Companies Act, 2013 and when the opposite party no.2 had opted to explore the jurisdiction of N.C.L.T. and has taken all the grounds therein on the basis of which four First Information Reports have been lodged against the applicants, lodging of First Information Report with regard to the same allegations is clear abuse of process of law and submission of the charge sheet and taking cognizance by the trial court has added salt to the already inflicted wounds of the petitioners, as by passing a cursory summoning order the cognizance has been taken and process has been issued against the petitioners against the provision contained in the Companies Act, 2013.
While referring to the law laid down by the Hon'ble Supreme Court in G. Sagar Suri v. State of U.P., (2000)2 SCC 636, Mehmood Ul Rehman Vs. Khazir Mohammad Tunda & others (20-15) 12 SCC 420 and Sanjay Jai and another Vs. State of Uttar Pradesh & another, order dated 09.05.2022 (Application under Section 482 No.25587 of 2021), it is vehemently submitted that the cognizance order and summoning order passed by the trial court has been passed in utter disregard to the provision as contained in Companies Act, 2013.
It is also submitted that though the finding arrived at by a Division Bench of this Court, vide order dated 30.11.2021 passed in Misc. Bench No.27486 of 2021 though passed an interim order but could not be brushed aside as the same were with regard to the legal provision contained in the Companies Act, 2013 and despite the fact that writ petition filed by the petitioners was dismissed as has become infructuous, the finding of the interim order dated 30.11.2021 may not be negated.
It is further submitted that the case of the applicant is covered by the law laid down by High Court of Madras in Doraisamy (supra) as well as Bhajan Lal (supra) and thus, proceedings pending before the court below of the cases mentioned herein before as well as their summoning order and filing of charge sheet are nothing but the abuse of process of law and the same be quashed.
Learned counsel for the applicants in support of his submissions and written submissions have relied on following case laws:-
1. Doraisamy and another vs. State [ 2019 SCCOnLine Mad 1354].
2. Sri Ramdas Motor Transport Ltd. vs. Tadi Adhinarayana Reddy [(1997) 5 SCC 446].
3. State of Haryana & Ors. vs. Bhajan Lal & Ors. [1992 Supp(1) SCC 335].
4. Vijay Kumar Ghai & Ors. vs. State of West Bengal & Ors. [ (2022) 7 SCC 124 ].
5. Mitesh Kumar J. Sha vs. State of Karnataka [ 2021 SCCOnLine SC 976].
6. R. Nagender Yadav vs. The State of Telangana [ 2022 SCCOnLine SC 1725].
7. Ramesh Dahyalal Shah vs. State of Maharashtra [ 2017 SCCOnLine Bom 9322 ].
8. Usha Chakraborty & Anr. Vs State of West Bengal & Anr. [ 2023 SCCOnLine SC 90 ].
9. Radheshyam Kejriwal vs. State of West Bengal & Anr. [ (2011) 3SCC 581].
10. Commercial Tax Officer, Rajasthan vs. Binani Cements Limited [ (2014) 8 SCC 319 ].
11. G. Sagar Suri & Anr. vs. State of U.P. & Ors. [ (2000) 2 SCC 636].
12. Mehmood Ul Rehman vs. Khazir Mohammad Tunda & Ors. [ (2015) 12 SCC 420].
13. Sanjay Jain & Anr. vs. State of U.P. & Anr. [ passed by the Hon'ble Allahabad HC, Order dated 09.05.2022 ( Application u/s 482 no. 25587 of 2021) ].
14. L.I.C. of India vs. Escorts Ltd. & Ors. [ (1986) 1 SCC 264 ].
15. Tata Consultancy Services Ltd. vs. Cyrus Investments private Ltd. & Ors. [ (2021) 9 SCC 449 ].
Dr. L.P. Mishra as well as Shri Prafulla Tiwari appearing for opposite party no.2/informant while relying on the written submissions filed by the opposite party no.2 which have also been taken on record, vehemently submits that the allegations in the above mentioned First Information Reports are to the tune that an amount of Rs.6,00,00,000/- had been transferred by the petitioners from Piscesia Power Transmission Private Ltd. (P.P.T.P.L.) to Kulwinder Singh Bains who is a hard core criminal and is a close-aide of renowned gangster Chhota Shakeel for purchasing a property in Mumbai in the name P.P.T.P.L. and the said transaction has been made on the recommendation of the co-accused Vivek Yadav and neither any property was purchased nor the said amount was returned to the company.
It is also submitted that Rs.46,00,000/- were also transferred by the opposite party no.2 to P.P.T.P.L. in the year 2012 and 2013 but the same was misused by the petitioners/accused persons Vivek Yadav, Vandana Yadav by purchasing residential flats in their own names, for this purpose amount of Rs.58,88,352/- and Rs.15,00,000/- was transferred to M/s Shalimar Corporation Ltd. And SAS Hotels & Properteis Private Ltd.
It is also submitted that in the year 2014 the aforesaid P.P.T.P.L. Company has paid Rs.1,66,09,193/- to M/s Wave Silver Tower Private Ltd. for purchasing of two commercial units in Noida and out of these one commercial unit was transferred to M/s Bigha Infraventure Private Ltd., which is owned and controlled by the accused-petitioner Manoj Kumar Singh without any consideration also the petitioner - Vandana Yadav and Vivek Yadav took loan from P.P.T.P.L. in the name of their other companies and did not return the same.
It is also submitted that several other transfers were made by Vivek Yadav and Manoj Kumar Singh to different parties without any authority and accused persons Vivek Yadav and Tushar Nagar submitted forged work order and invoice pertaining to M/s RST Infrastructure Pvt. Ltd. and M/s Sarvesh Rai Contractor and also to J.B.T.Y.C.P.L. and the said work orders were signed by Vivek Yadav as Director of P.P.T.P.L. in February, 2013 and April, 2013.
It is further submitted that in huge amount of Rs.1,78,70,000/- was also transferred by accused Manoj Kumar Singh from P.P.T.P.L. without approval of the Board.
It is also submitted that the accused persons have fraudulently acquired majority in the shareholding of the Company. The shares have been transferred without any proper valuation and the accused persons did not even pay the share money in full.
Learned counsel representing the informant/opposite party no.2 while referring to various documents and references of the case diary, submits that the accused persons have committed criminal breach of trust, cheating, forgery in order to defraud the company and the informant of a huge amount.
It is also submitted that the provision contained in the Companies Act, 2013 may not bar the institution of criminal proceedings or prosecution under various and relevant penal sections of Indian Penal Code.
While referring to the judgment of Doraisamy (supra) passed by the Madras High Court, it is submitted that the relevant provision of Companies Act may create a bar only with regard to the parallel proceedings of the civil court as contemplated under Section 430 of the Companies Act and the Companies Act nowhere creates on bar for proceedings of criminal prosecution and this issue has not been considered in Doraisamy(supra) .
It is also submitted that against the judgment of Dorisamy (supra) the Hon'ble Supreme Court has dismissed the S.L.P. and therefore the same may not attract the doctrine of merger.
While relying on the following judgments of various High Courts, it is submitted that provision as contained under Section 430 of the Companies Act will not include a Criminal Offence and thus a criminal prosecution pertaining to the relevant provisions of the Indian Penal Code would not be barred if with regard to the same allegations the provisions of Companies Act has been invoked by the informant/ Opposite party no.2.
1. Manoj Shrivastava vs. State of M.P. [ I.L.R. (2019) M.P. 207].
2. Sunil Mandwani vs. State of M.P. [2019 SCCOnLine MP 1249].
3. Karishma Kayal vs. The state of Assam [ passed by the Hon'ble Gauhati H.C. in criminal petition no. 559/2020].
4. S.P. Gupta & ors. vs. State ( NCT of Delhi) [ILR (2005) I Delhi 421].
5. Kamal Shivaji Pokarnekar vs. State of Maharashtra [ (2019) 14 SCC 350 ].
6. Syed Askari Hadi Ali Augustine Imam vs. State( Delhi Administration) & anr. [ (2009) 5 SCC 528 ].
7. P. Swaroopa Rani vs M. Hari Narayana @ Hari Babu [(2008) 5 SCC 765].
8. Trisuns Chemical Industry vs. Rajesh Agarwal & ors. [ (1999) 8 SCC 686].
9. Lalmuni Devi (smt.) vs. State of Bihar& ors.[ (2001) 2 SCC 17].
10. M.Krishnan vs. Vijay Singh & anr. [ (2001) 8 SCC 645 ].
11. Kamaladevi Agarwal vs. State of W.B. & ors.[ (2002) 1 SCC 555].
12. Sri Krishna Agencies vs. State of Andhra Pradesh [(2009) 1 SCC 69].
13. Priti Saraf & anr. vs. State of NCT of Delhi & anr. [ 2021 SCCOnLine SC 206].
14. G. Narayanaswami vs. G. Pannerselvam & ors.[ (1972) 3 SCC 717].
15. Kanti Bhadra Shah& anr. vs. State of W.B. [(2000) 1 SCC 722].
16. Bhushan Kumar & anr. vs. State(NCT of Delhi) & anr. [ (2012) 5 SCC 424].
17. Nupur Talwar vs. C.B.I. & anr. [ (2012) 11 SCC 465].
18. State of Gujarat vs. Afroz Mohammed Hasanfatta [ (2019) 20 SCC 539 ].
19. Amit Kapoor vs. Ramesh Chander &anr. [ (2012) 9 SCC 460].
20. State of Karnataka vs. M. Devendrappa & anr. [ (2002) 3 SCC 89 ].
21. State of Uttar Pradesh vs. Akhil Sharda & ors. [ 2022 SCCOnLine SC 820 ].
22. Jagdish & ors. vs. State of Haryana [ (2019) 7 SCC 711].
23. Kuna @ Sanjaya Behera vs. State of Odisha [ (2018) 1 SCC 296].
24. Juman & anr. vs. State of Bihar [ (2017) 11 SCC 85].
25. Kamla Kant Dubey vs. State of U.P. & ors.[ (2015) 11 SCC 145 ].
26. K.D. Sharma vs. Steel Authority of India Ltd. & ors. [ (2008) 12 SCC 481].
27. Smt. Ramendri vs. State of U.P. & anr. [ passed by the Hon'ble Allahabad High court in Application u/s 482 no. 5094 of 2021 ].
It is submitted that if by the same set of facts criminal and civil rights are emerging the exercise of civil right shall not be a bar for criminal prosecution.
Learned counsel for informant/opposite party no.2 has also relied on the law laid down in Priti Sarraf and another Vs. NCT Delhi (2021) SCC Online SC 206.
While referring to the summoning order and cognizance taking order passed by the Chief Judicial Magistrate, Lucknow, it is vehemently submitted that at the stage of taking cognizance and issuance of summons detailed reasons and meticulous examination of the evidence/material collected by the Investigating Officer is not required.
It is also submitted that in Amit Kapoor Vs. Ramesh Chander & anr. (2012)9 SCC 460, it is held by the Hon'ble Supreme Court that merely a civil dispute may arise from the same set of facts, the same ipso facto would not preclude an offender from criminal prosecution.
While referring to the many judgments of the Hon'ble Supreme Court reference of which is given above, it is vehemently submitted that no illegality or to say any irregularity has been committed either by the Investigating officer in submitting the charge sheet or by the trial court in taking cognizance of the offence and issuance of process.
Having heard learned counsel for the parties and having perused the record including the written submissions, filed by learned counsels for the parties, it would emerge that in nutshell the contention of learned counsel for the applicants in all the four cases mentioned herein-before are that even if the case of the prosecution is taken on its face, as is emerging from the first information reports and the grounds on which the charge sheet has been filed, no cognizable offence is emerging and therefore the trial court has committed manifest illegality in taking cognizance of the offences and in issuing process against the applicants. It is also the defence of the applicants/accused persons that the Companies Act 2013 is a complete Code in itself and specific procedure has been provided therein for the investigation of offences committed by the office bearers of a company in managing the affairs of the company and with regard to those offences, F.I.R could not be lodged under any of the provisions of Indian Penal Code and in this regard reliance has been placed by learned counsels for the applicants on Doraisamy and another (supra). It is also contended on behalf of the applicants that when first informant failed in obtaining effective interim order in the proceedings instituted by him before the National Company Law Tribunal, Allahabad, the above mentioned four first information reports were lodged on the same day in order to pressurize the applicants and thus highlighting the grounds mentioned in the State of Haryana Vs. Bhajan Lal (supra), it is submitted that the proceedings of the cases mentioned herein-before pending before the trial court is abuse of process of law and the same be quashed.
Per contra learned counsels for the informant/opposite party no.2 are of the view that by virtue of Section 430 of the Companies Act, 2013 only civil litigation is barred and the criminal prosecution under any of the Section of the I.P.C. has not been barred by any of the provisions of the Companies Act, 2013. It is also submitted that the procedure in the Companies Act with regard to the investigation has been provided only pertaining to the technical financial irregularities committed by its office bearers in the management of the company, however, if a substantive penal offence has been committed by any of the office bearers of the company, the F.I.R. is to be recorded as it is mandatory for S.H.O. of any police station to lodge an F.I.R., which has been given mentioning the commission of cognizable offences.
It is also submitted that after thorough investigation the investigating officer has submitted charge sheets and the magistrate has also taken cognizance of the offences and therefore, keeping in view the fact that at the stage of taking cognizance and issuing process meticulous examination of evidences or material collected by the investigating officer is not required, no irregularity or illegality has been committed by the trial court either in taking cognizance of the offences or in issuing process against the applicants, as prima facie commission of cognizable offences is reflected. It is also contended on behalf of the informant/opposite party no.2 that the accused persons/applicants have committed offence of criminal breach of trust, cheating, forgery in order to defraud the company as well as the informant and huge amount has been misappropriated by them and since the charge sheet has been filed, the prosecution could not be culminated without trial and if the applicants have not committed any offence, they may be either discharged or acquitted, but the proceedings of the case pending before the trial court could not be terminated on the grounds mentioned by the applicants as in State of Gujarat vs. Afroz Mohammed Hasanfatta (supra) Hon'ble Supreme Court has categorically held that since the charge sheet in criminal case is submitted after scrutiny by a higher police officer, no reason is required to be given at the time of taking cognizance and issuance of summons and thus no illegality has been committed by the trial court in taking cognizance of the offences and in issuing process against the applicants.
The law with regard to quashing of the charge sheet or the order whereby the cognizance has been taken or proceedings of quashing a criminal case is now no more res integra and the same has been set at rest by Catena of judgments passed by Hon'ble Supreme Court.
In Bhushan Kumar and Anr. v. State (NCT of Delhi) and Anr. MANU/SC/0297/2012 : (2012) 5 SCC 424 while considering Chief Enforcement Officer v. Videocon International Ltd., MANU/SC/7011/2008 : (2008) 2 SCC 492 it was held that the expression cognizance merely means to 'become aware of'. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. It is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process Under Section 204 of the Code. Similar view was taken in Darshan Singh Ram Kishan v. State of Maharashtra MANU/SC/0089/1971 : (1971) 2 SCC 654, wherein it is held that the process of taking cognizance does not involve any formal action, but it occurs as soon as the Magistrate applies his mind to the allegations and thereafter takes judicial notice of the offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint, or on a police report, or upon information of a person other than a police officer. Therefore, when a Magistrate takes cognizance of an offence upon a police report, prima facie he does so of the offence or offences disclosed in such report. In Kishun Singh and Ors. v. State of Bihar MANU/SC/0460/1993 : (1993) 2 SCC 16, the Court reiterated the position that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence. It is essential to bear in mind the fact that cognizance is in regard to the offence and not the offender. In S.K. Sinha, Chief Enforcement Officer v. Videocon International Limited and Ors. MANU/SC/7011/2008 : (2008) 2 SCC 492, it was held that "Taking cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance. In U.P. Pollution Control Board v. Dr. Bhupendra Kumar Modi and Anr. MANU/SC/8395/2008 : (2009) 2 SCC 147, it is reminded that It is a settled legal position that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and the magistrate is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. In G.H.C.L. Employees Stock Option Trust VS. India Infoline Ltd., MANU/SC/0271/2013 : 2013(4) SCC 505, it was emphasized by the Hon'ble Supreme Court that summoning of accused in a criminal case is a serious matter. Hence, criminal law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record.
In Rajiv Thapar and Ors. Vs. Madan Lal Kapoor, MANU/SC/0053/2013 Hon'ble Supreme Court held as under:-
"23. Based on the factors canvassed in the f, soon before the death of the deceased ore going paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Code of Criminal Procedure:
(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Code of Criminal Procedure. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused."
In Ahmad Ali Quraishi and Ors. Vs. The State of Uttar Pradesh and Ors., MANU/SC/0104/2020, Hon'ble Supreme Court while considering the scope of extra ordinary powers contained under section 482 CrPC held as under:-
"10. Before we enter into facts of the present case and submissions made by learned Counsel for the parties, it is necessary to look into scope and ambit of Inherent Jurisdiction which is exercised by the High Court Under Section 482 Code of Criminal Procedure. This Court had occasion to consider the scope and jurisdiction of Section 482 Code of Criminal Procedure. This Court in State of Haryana and Ors. v. Bhajan Lal and Ors. MANU/SC/0115/1992 : 1992 suppl. (1) SCC 335, had elaborately considered the scope and ambit of Section 482 Code of Criminal Procedure/Article 226 of the Constitution in the context of quashing the criminal proceedings. In paragraph 102, this Court enumerated seven categories of cases where power can be exercised Under Article 226/Section 482 Code of Criminal Procedure by the High Court for quashing the criminal Proceedings. Paragraph 102 is as follows: 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power Under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the Accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the Accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the Accused.
(6) Where the is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the Accused and with a view to spite him due to private and personal grudge.
12. This Court time and again has examined the scope of jurisdiction of the High Court Under Section 482 Code of Criminal Procedure and laid down several principles which govern the exercise of jurisdiction of the High Court Under Section 482 Code of Criminal Procedure. A three- Judge Bench of this Court in State of Karnataka v. L. Muniswamy, MANU/SC/0143/1977 : (1977) 2 SCC 699, held that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. In para 7 of the judgment, the following has been stated: (SCC p. 703)
7. ... In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.
13. A three-Judge Bench in State of Karnataka v. M. Devendrappa, MANU/SC/0027/2002 : (2002) 3 SCC 89, had the occasion to consider the ambit of Section 482 Code of Criminal Procedure By analysing the scope of Section 482 Code of Criminal Procedure, this Court laid down that authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It further held that Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. The following was laid down in para 6: (SCC p. 94)
6. ... All courts, whether civil or criminal possess, in the absence of any express provision, has inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
14. Further in para 8 the following was stated: (Devendrappa case, SCC p. 95)
8. ... Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the Section is not an instrument handed over to an Accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power Under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal.
16. After considering the earlier several judgments of this Court including the case of State of Haryana v. Bhajan lal (supra), in Vineet Kumar (supra), this Court laid down following in paragraph 41: 41. Inherent power given to the High Court Under Section 482 Code of Criminal Procedure is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana v. Bhajan Lal. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction Under Section 482 Code of Criminal Procedure to quash the proceeding under Category 7 as enumerated in State of Haryana v. Bhajan Lal, which is to the following effect: (SCC p. 379, para 102)
102. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the Accused and with a view to spite him due to private and personal grudge."
Perusal of the record in light of the law laid down by Hon'ble Supreme Court referred to herein-before would reveal that in nutshell the allegations against the applicants in the above mentioned four cases are to the tune that the informant/opposite party no.4 Prashant Singh and the applicant Vandana Yadav were Directors of M/s P.P.T.P.L. and on lurement given by Vandana Yadav and Vivek Yadav Rs.1,33,20,000/- were transferred by the informant to their company wherein the informant was also a Director for some time for the purpose of purchase of commercial plot at Ghaziabad, but after misappropriating the money sale deed was not executed in favour of the informant nor money was returned back to him and has been misappropriated. It is also the case of the informant that Rs.50 lakhs were given by the informant from his company namely J.B. Test Commissioning Private Limited to the applicants, which were transferred in the company namely SVY Infrastructure Private Limited. It was promised that this money would be returned within next six months but the money was never returned and the same has been misappropriated. Other allegations levelled against the applicants are that the accused persons in furtherance of a conspiracy has overtaken the management of the company while a huge capital was invested by the informant in the some companies and all the accused persons obtained signatures of the informant on blank papers and also used them illegally in misappropriating the capital of the company and in this process Rs.5 crores were siphoned by the applicant Vandana Yadav in her company SVY Infrastructure Private Limited and she also purchased a residential plot out of the same and also transferred Rs.58,88,352/- and Rs.15 lakhs respectively to some other companies. Certain allegations have also been levelled with regard to the convening of illegal Annual General Meetings and also to the tune that a new bank account of the company was illegally opened at Bank of Maharashtra, Gomti Nagar Branch, Lucknow in violation of the guidelines of the Reserve Bank of India and payment of work done by the company was taken in that bank account and has been misappropriated.
The allegations referred to herein-before pertaining to which above mentioned four first information reports have been lodged would project that certainly some of the allegations leveled against the applicants are pertaining to the fraud and illegal financial activities committed by them while managing the company, but certain other allegations have also been leveled with regard to criminal breach of trust and forgery allegedly committed by the applicants with the informant. Thus it is prima facie reflected that all the allegations, which have been leveled in the above mentioned first information reports and in the statement of prosecution witnesses may not be confined only with the management of the company and thus it could not be said that alleged offences on the basis of first information reports have been lodged by the opposite party no.2/informant are confined to the mismanagement of the company.
Thus the First Information Reports are not confined only to the allegations of mismanagement of the company and fraud committed during the course of such management.
Now coming to the submission that when specific procedure has been provided under Companies Act, 2013, the Criminal prosecution of the applicants under IPC would be barred.
I have gone through the Companies Act 2013, and have not found any provision, which ousts the applicability of the provisions of Indian Penal Code.
At this stage it is worthwhile to recall section 26 of the General Clauses Act, which reads as under
''26. Provision as to offences punishable under two or more enactments.- Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."
Article 20(2) of the Constitution provides that no person shall be prosecuted and punished for the same offence more than once. To attract applicability of Article 20(2) there must be a second prosecution and punishment for the same offence for which the accused has been prosecuted and punished previously. A subsequent trial or a prosecution and punishment are not barred if the ingredients of the two offences are distinct.
The rule against double jeopardy is stated in the maxim nemo debet bis vexari pro una et eadem causa. It is a significant basic rule of Criminal Law that no man shall be put in jeopardy twice for one and the same offence. The rule provides foundation for the pleas of autrefois acquit and autrefois convict. The manifestation of this rule is to be found contained in Section 26 of the General Clauses Act, 1897. Section 300 of the Code of Criminal Procedure, 1973 and Section 71 of the Indian Penal Code.
Section 300 of the CrPC inter alia provides that person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Sub-section (1) of Section 221 or for which he might have been convicted under Sub-section (2) thereof." Both the provisions employ the expression "same offence".
Section 71 of IPC is also relevant here which provides that where anything which is an offence is made-up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such offences, unless it be so expressly provided. or where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for one of such offence.
Hon'ble Supreme Court in State of Rajasthan vs. Hat Singh and Ors., MANU/SC/0006/2003 while considering the similar issue opined as under :-
"15. The leading Indian authority in which the rule against double jeopardy came to be dealt with the interpreted by reference to Article 20(2) of the Constitution is the Constitution Bench decision in Maqbul Hussain v. State of Bombay MANU/SC/0062/1953 : 1983ECR1598D(SC) . If the offences are distinct, there is no question of the rule as to double jeopardy being extended and applied. In State of Bombay v. S.L. Apte and Anr., MANU/SC/0077/1960 : 1961CriLJ725 , the Constitution Bench held that the trial and conviction of the accused Under Section 409 IPC did not bar the trial and conviction for an offence Under Section 105 of Insurance Act because the two were distinct offences constituted or made up of different ingredients though the allegations in the two complaints made against the accused may be substantially the same. In Om Prakash Gupta v. State of UP, MANU/SC/0130/1957 : 1957CriLJ575 and The State of Madhya Pradesh v. Veereshwar Rao MANU/SC/0102/1957 , it was held that prosecution and conviction or acquittal Under Section 409 of IPC do not debar the accused being tried on a charge Under Section 5(2) of the Prevention of Corruption Act, 1947 because the two offences are not identical in sense, import and content. In Roshan Lal and Ors. v. State of Punjab MANU/SC/0089/1964 : 1965CriLJ426 , the accused had caused disappearance of the evidence of two offences Under Section 330 and 348 IPC and, therefore, he was alleged to have committed two separate Under Section 201 IPC. It was held that neither Section 71 IPC nor Section 26 of the General Clauses Act came to the rescue of the accused and the accused was liable to be convicted for two sets of offences Under Section 201 IPC though it would be appropriate not to pass two separate sentences.
18. We are, therefore, of the opinion that in a given case, same set of facts may given rise to an offence punishable Under Section 5 and Section 6(3) both. There is nothing unconstitutional or illegal about it. So also an act which is alleged to be an offence Under Section 6(3) of the Act and if for any reason prosecution Under Section 6(3) does not end in conviction, if the ingredients of offence under Section 5 are made out, may still be liable to be punished Under Section 5 of the Act. We, therefore, do not agree with the High Court to the extent to which it has been held that once a prohibitory order under Sub-section (1) or (2) has been issued, then a criminal act done after the promulgation of the prohibitory order can be punished only under Section 6(3) and in spite of prosecution Under Section 6(3) failing, on the same set of facts the person proceeded against cannot be held punishable Under Section 5 of the Act although the ingredients of Section 5 are fully made out."
In the case of State of M.P. Vs. Rameshwar reported in 2009 (11) SCC 424, MANU/SC/0521/2009, has held as under :-
''48. Mr Tankha's submissions, which were echoed by Mr Jain, that the M.P. Cooperative Societies Act, 1960 was a complete code in itself and the remedy of the prosecuting agency lay not under the criminal process but within the ambit of Sections 74 to 76 thereof, cannot also be accepted in view of the fact that there is no bar under the M.P. Cooperative Societies Act, 1960, to take resort to the provisions of the general criminal law, particularly when charges under the Prevention of Corruption Act, 1988, are involved.'' Hon'ble Supreme Court in the case of State (NCT of Delhi) Vs. Sanjay reported in (2014)9 SCC 772,MANU/SC/0761/2014 has held as under :-
''61. Reading the provisions of the Act minutely and carefully, prima facie we are of the view that there is no complete and absolute bar in prosecuting persons under the Penal Code where the offences committed by persons are penal and cognizable offence.'' Hon'ble single judge of Punjab And Haryana High Court in Dhanpreet Singh and Ors. vs. State of Punjab, MANU/PH/0938/2022, while considering the similar question has relied on a judgment of Hon'ble Supreme Court in the case of State of Maharashtra Vs. Sayyad Hassan Sayyad Subhan, by judgment dated 20- 9-2018, passed in Criminal Appeal No.1195 of 2018 has held as under :-
''13. The argument of the petitioners that the prosecution of the petitioners could at best only be carried out under the Factories Act, 1948 is concerned, the same is found to be without any force also for the reason that Section 26 of the General Clauses Act deals with provisions when an offence is punishable in 2 or more enactments. The same is reproduced as under:-
26. Provision as to offences punishable under two or more enactments. Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.
14. Perusal of the same would show that where an offence is punishable under two or more enactments, the offender shall be liable to be prosecuted and punished under either or any of those enactments. The Hon'ble Supreme Court in the matter of The State of Maharashtra & Anr. Vs. Sayyed Hassan Sayyad Subhan & Ors, in Criminal Appeal No. 1195 of 2018 decided on 20.09.2018 held as under:-
7. There is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence. 1. The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under the IPC and at the same time, an offence under any other law. 2 The High Court ought to have taken note of Section 26 of the General Clauses Act, 1897 which reads as follows:
"Provisions as to offences punishable under two or more enactments - Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."
8. In Hat Singh's case this Court discussed the doctrine of double jeopardy and Section 26 of the General Clauses Act to observe that prosecution under two different Acts is permissible if the ingredients of the provisions are satisfied on the same facts. While considering a dispute about the prosecution of the Respondent therein for offences under the Mines and Minerals (Development and Regulation) Act 1957 and Indian Penal Code, this Court in State (NCT of Delhi) v. Sanjay held that there is no bar in prosecuting persons under the Penal Code where the offences committed by persons are penal and cognizable offences. A perusal of the provisions of the FSS Act would make it clear that there is no bar for prosecution under the IPC merely because the provisions in the FSS Act prescribe penalties. We, therefore, set aside the finding of the High Court on the first point.'' Hon'ble Supreme Court in Kanwar Pal Singh vs. The State of Uttar Pradesh and Ors. (18.12.2019 - SC) : MANU/SC/1776/2019, while considering the similar issue held as under :-
"Section 26 of the General Clauses Act permits prosecution for 'different offences' but bars prosecution and punishment twice for the 'same offence' under two or more enactments. The expression 'same offence' has been interpreted by this Court in numerous decisions viz., Maqbool Hussain v. State of Bombay MANU/SC/0062/1953 : AIR 1953 SC 325 with reference to the provisions of the Sea Customs Act and the Foreign Exchange Regulation Act, 1947; Om Parkash Gupta v. State of U.P. MANU/SC/0130/1957 : AIR 1957 SC 458 and State of Madhya Pradesh v. Veereshwar Rao Agnihotri MANU/SC/0102/1957 : AIR 1957 SC 592 with reference to Section 409 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act; T.S. Baliah v. ITO AIR 1969 SC 701 with reference to Section 52 of the Income Tax Act, 1922 and Section 177 of the Indian Penal Code; Collector of Customs v. Vasantraj Bhagwanji Bhatia MANU/SC/0561/1988 : (1988) 3 SCC 467, with reference to the provisions of the Customs Act 1962 and the provisions of the Gold (Control) Act, 1968; State of Bihar v. Murad Ali Khan MANU/SC/0470/1988 : (1988) 4 SCC 655 with reference to the provisions of Sections 447, 429 and 379 of the Indian Penal Code and provisions of the Wildlife (Protection) Act, 1972; Avtar Singh v. State of Punjab MANU/SC/0191/1964 : AIR 1965 SC 666 with reference to Section 39 of the Electricity Act, 1910 and the provisions of theft under the Indian Penal Code; and Institute of Chartered Accountants of India v. Vimal Kumar Surana MANU/SC/1015/2010 : (2011) 1 SCC 534 with reference to the provisions of the Chartered Accountants Act, 1949 and offences Under Sections 419, 468, 471 and 472 of the Indian Penal Code. Elucidating on the provisions of Section 4 read with Sections 21 and 22 of the Mines Regulation Act and the offence Under Section 379 of the Indian Penal Code, it was observed in Sanjay (supra):
69. Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the riverbed. The Court shall take judicial notice of the fact that over the years rivers in India have been affected by the alarming rate of unrestricted sand mining which is damaging the ecosystem of the rivers and safety of bridges. It also weakens riverbeds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the groundwater levels.
70. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other Sections of the Act, the officer empowered and authorised under the Act shall exercise all the powers including making a complaint before the Jurisdictional Magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorised officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist the Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person is sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitutes an offence under the Penal Code.
71. However, there may be a situation where a person without any lease or licence or any authority enters into river and extracts sand, gravel and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence Under Sections 378 and 379 of the Penal Code.
72. From a close reading of the provisions of the MMDR Act and the offence defined Under Section 378 Indian Penal Code, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable Under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, out of the State's possession without the consent, constitute an offence of theft. Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report Under Section 173 Code of Criminal Procedure before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure.
7. As noticed above, in the written submissions the Appellant has relied upon Belsund Sugar Company Limited (supra), Sharat Babu Digumarti (supra) and Suresh Nanda (supra) to contend that where there is a special act dealing with a special subject, resort cannot be taken to a general act. The said submission has no force in view of the ratio in Sanjay (supra) as quoted above which specifically refers to Section 26 of the General Clauses Act and states that the offence Under Section 4 read with Section 21 of the Mines Regulation Act is different from the offence punishable Under Section 379 of the Indian Penal Code. Thus, they are two 'different' and not the 'same offence'. It would be relevant to state here that the Delhi High Court in its decision reported as Sanjay v. State (2009) 109 DRJ 594, which was impugned in Sanjay (supra), had accepted an identical argument to hold that once an offence is punishable Under Section 21 of the Mines Regulation Act, the offence would not be punishable Under Section 379 of the Indian Penal Code. This reasoning was rejected by this Court and the judgment of the Delhi High Court was reversed. The contention relying on the same reasoning before us, therefore, must be rejected."
Above mentioned law reports would demonstrate that there is no bar in lodging an FIR or in conducting an investigation or even in the trial or conviction of an offender under two different enactments, but the bar is only with regard to the punishment of the offender twice for the same offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted under either or both enactments but shall not be liable to be punished twice for the same offence.
At this stage Section 430 of Companies Act is also relevant which reads as under :
''430. Civil court not to have jurisdiction.- No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine by or under this Act or any other law for the time being in force and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any other law for the time being in force, by the Tribunal or the Appellate Tribunal."
The word civil court appearing herein above could not be read as criminal court. If the intention of the Legislature was to exclude the provisions of Indian Penal Code, with regard to the offences investigated under Companies Act, then nothing had prevented the Legislature from making such a provision. Even otherwise, it is a well established principle of law that the exclusion of the jurisdiction of the Court has to be specific and cannot be inferred, and the provisions excluding the jurisdiction have to be construed strictly. Thus, in the considered opinion of this Court the word "Civil Court", emerging in this section cannot be read as "Criminal Court".
As stated above, prima facie, there are specific allegations made by opposite party no. 2 in the FIR's lodged by him and the Investigating Officer having conducted investigation by collecting the material and recording the statements of the witnesses under Section 161 of the Cr.P.C. and considering the same, filed the charge sheet. Truthfulness or otherwise of the allegations are not fit to be gone into at this stage as it is always a matter of trial as held by the Hon'ble Supreme Court in Kamal Shivaji Pokarnekar v. The State of Maharashtra, MANU/SC/0180/2019 , wherein the Apex Court has categorically held that quashing criminal proceedings was called for only in a case where complaint did not disclose any offence, or was frivolous, vexatious, or oppressive. If allegations set out in complaint and FIR did not constitute offence of which cognizance had been taken by Magistrate, it was open to the High Court to quash the same. It was not necessary that a meticulous analysis of case should be done before trial to find out whether the case would end in conviction or acquittal. If it appears on a reading and consideration of allegations and material collected during the course of investigation that the ingredients of the offences are disclosed, there would be no justification for interfere. The defences that might be available, or facts/ aspects which when established during trial, might lead to acquittal ,are not grounds for quashing the Charge Sheet or summoning order at the threshold. At that stage, the only relevant question was whether averments in the complaint spell out ingredients of criminal offence(s) or not. The Court has to consider whether from allegations contains in FIR and material collected during the course of investigation prima facie any offence is disclosed. Correctness or otherwise of the said allegations has to be be decided only during trial. At the initial stage of issuance of process, it was not open to Courts to stifle proceedings by entering into merits of the contentions made on behalf of the accused. Criminal complaints could not be quashed only on the ground that, allegations made therein appear to be of a civil nature. If ingredients of offence alleged against Accused were prima facie made out , Criminal proceeding shall not be interdicted.
Hon'ble Supreme Court in State of Gujrat Vs Afroz Mohammed Hasanfatta reported in MANU/SC/0139/2019 while considering the need of the magistrate to record reasons for taking of cognizance and issuance of summons in cases based on police report (Charge Sheet), while considering the difference in the cases instituted on complaint and the cases wherein charge sheet has been filed, framed point mentioned below and answered it as under:-
"While directing issuance of process to the Accused in case of taking cognizance of an offence based upon a police report Under Section 190(1)(b) Code of Criminal Procedure, whether it is mandatory for the court to record reasons for its satisfaction that there are sufficient grounds for proceeding against the Accused?
"19. ................ in Raj Kumar Agarwal v. State of U.P. and Anr. MANU/UP/1095/1999 : 1999 Cr. LJ 4101, Justice B.K. Rathi, the learned Single Judge of the Allahabad High Court held as under:
...As such there are three stages of a case. The first is Under Section 204 Code of Criminal Procedure at the time of issue of process, the second is Under Section 239 Code of Criminal Procedure before framing of the charge and the third is after recording the entire evidence of the prosecution and the defence. The question is whether the Magistrate is required to scrutinise the evidence at all the three stages and record reasons of his satisfaction. If this view is taken, it will make speedy disposal a dream. In my opinion the consideration of merits and evidence at all the three stages is different. At the stage of issue of process Under Section 204 Code of Criminal Procedure detailed enquiry regarding the merit and demerit of the cases is not required. The fact that after investigation of the case, the police has submitted the charge sheet, may be considered as sufficient ground for proceeding at the stage of issue of process Under Section 204 Code of Criminal Procedure, however subject to the condition that at this stage the Magistrate should examine whether the complaint is barred under any law,......... At the stage of Section 204 Code of Criminal Procedure if the complaint is not found barred under any law, the evidence is not required to be considered nor the reasons are required to be recorded. At the stage of charge Under Section 239 or 240 Code of Criminal Procedure the evidence may be considered very briefly, though at that stage also, the Magistrate is not required to meticulously examine and to evaluate the evidence and to record detailed reasons.
8. A bare reading of Sections 203 and 204 Code of Criminal Procedure shows that Section 203 Code of Criminal Procedure requires that reasons should be recorded for the dismissal of the complaint. Contrary to it, there is no such' requirement Under Section 204 Code of Criminal Procedure. Therefore, the order for issue of process in this case without recording reasons, does not suffer from any illegality.
We fully endorse the above view taken by the learned Judge.
20. In para (21) of Mehmood Ali Rehman, this Court has made a fine distinction between taking cognizance based upon charge sheet filed by the police Under Section 190(1)(b) Code of Criminal Procedure and a private complaint Under Section 190(1)(a) Code of Criminal Procedure and held as under:
21. Under Section 190(1)(b) Code of Criminal Procedure, the Magistrate has the advantage of a police report and Under Section 190(1)(c) Code of Criminal Procedure, he has the information or knowledge of commission of an offence. But Under Section 190(1)(a) Code of Criminal Procedure, he has only a complaint before him. The Code hence specifies that "a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance Under Section 190(1)(a) Code of Criminal Procedure. The complaint is simply to be rejected.
21. In summoning the Accused, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected is adequate for supporting the conviction. The court is not required to evaluate the evidence and its merits. The standard to be adopted for summoning the Accused Under Section 204 Code of Criminal Procedure is not the same at the time of framing the charge. For issuance of summons Under Section 204 Code of Criminal Procedure, the expression used is "there is sufficient ground for proceeding..... "; whereas for framing the charges, the expression used in Sections 240 and 246 Indian Penal Code is "there is ground for presuming that the Accused has committed an offence..... ". At the stage of taking cognizance of the offence based upon a police report and for issuance of summons Under Section 204 Code of Criminal Procedure, detailed enquiry regarding the merits and demerits of the case is not required. The fact that after investigation of the case, the police has filed charge sheet along with the materials thereon may be considered as sufficient ground for proceeding for issuance of summons Under Section 204 Code of Criminal Procedure.
22. In so far as taking cognizance based on the police report, the Magistrate has the advantage of the charge sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating Officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Code of Criminal Procedure and in accordance with the Rules of investigation. Evidence and materials so collected are sifted at the level of the Investigating Officer and thereafter, charge sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before fling the charge sheet. The court thus has the advantage of the police report along with the materials placed before it by the police. Under Section 190 (1)(b) Code of Criminal Procedure, where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the Accused. Such an order of issuing summons to the Accused is based upon subject to satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the Accused. In a case based upon the police report, at the stage of issuing the summons to the Accused, the Magistrate is not required to record any reason. In case, if the charge sheet is barred by law or where there is lack of jurisdiction or when the charge sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge sheet and for not taking on file. " (Emphasis Mine) Thus a distinction has been made by the Hon'ble Supreme Court between the cognizance taken on a complaint and on Charge Sheet, which has been filed in the court after investigation and had also been weighed by a superior officer of police.
In Skoda Auto Volkswagen India Private Limited v. The State of Uttar Pradesh, MANU/SC/0898/2020 Hon'ble Supreme Court held as under :-
"41. It is needless to point out that ever since the decision of the Privy Council in King Emperor v. Khwaja Nazir Ahmed MANU/PR/0007/1944 : AIR 1945 PC 18, the law is well settled that Courts would not thwart any investigation. It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on. As cautioned by this Court in State of Haryana v. Bhajan Lal MANU/SC/0115/1992 : (1992) Supp. (1) SCC 335, the power of quashing should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. While examining a complaint, the quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or in the complaint. In S.M. Datta v. State of Gujarat MANU/SC/0486/2001 : (2001) 7 SCC 659, this Court again cautioned that criminal proceedings ought not to be scuttled at the initial stage. Quashing of a complaint should rather be an exception and a rarity than an ordinary rule. In S.M. Datta (supra), this Court held that if a perusal of the first information report leads to disclosure of an offence even broadly, law courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere."
Thus, above discussion sufficiently demonstrate that no illegality appears to have been committed by the investigating officer in submitting the charge sheet or by the trial court in taking cognizance and in issuing process. Resultantly all the petitions filed by the applicants placed above are not having force and for the reasons mentioned herein before, all these petitions are dismissed.
However, the dismissal of petitions filed by the applicants shall not preclude the applicants to approach the appropriate forum either under Sections 438 or 439 Cr.P.C. and the observations of this Court made herein before would not be construed as opinion of this Court on merits and the Court concerned shall independently assess the case of of the applicants without taking into consideration any observation of this Court. After all there is difference between quashing of a criminal case instituted on submission of charge sheet and protection of liberty of an accused person, who has not been arrested by the police during the course of investigation and is submitting himself to the custody of the court.
Order Date :- 8.5.2023 Muk/Anupam S/-