Madhya Pradesh High Court
Ramakrishna Flour And Besan Mills ... vs Company Registrar on 28 January, 1993
Equivalent citations: [1994]79COMPCAS528(MP)
JUDGMENT A.R. Tiwari, J.
1. By this petition, filed under Section 482 of the Criminal Procedure Code, the petitioners have prayed for quashment of the criminal proceedings initiated against them under Section 58A of the Companies Act, 1956. The learned ACJM (Economic Offences), Indore, has taken cognizance by order dated November 3, 1989, in Criminal Case No. 3400 of 1989.
2. I have heard Shri D. M. Kulkarni, learned counsel for the petitioners, and Shri B. G. Neema, learned counsel for the non-applicant.
3. It is urged that the prosecution, being inutile and futile, is clearly an abuse of the process of the court. Reliance has been placed on Bengal Tools Ltd. v. Registrar of Companies [1991] 71 Comp Cas 85 (Cal).
4. The initiation of criminal proceedings on complaint can be assailed on proper grounds. In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, AIR 1976 SC 1947, it is held that (at page 1948) :
"(1) Where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused ;
(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused ;
(3) Where the discretion exercised by the Magistrate in issuing process" is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible ; and (4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like."
5. The challenge is permissible even at the preliminary stage because no one can be consigned to face the ordeal of a lengthy trial if the material or position of law demands anaesthetization even at its infancy. In Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre, AIR 1988 SC 709, it is succinctly observed that (headnote) :
"The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegation as made prima facie established the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at a preliminary stage."
6. Admittedly, the objections were not raised in the court below. The law permits this course. The court below, if satisfied, has the jurisdiction to recall the order of cognizance and drop the proceedings. In K.M. Mathew v. State of Kerala, [1992J 1 KLT 1 (SC) ; [1992] WN (1) 30 (SC), it is pointed out that (at page 3) :
"It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused."
7. In the circumstances, this is not the proper stage to go into the merits of the matter under Section 482 of the Criminal Procedure Code. The applicants may, however, prefer proper objections in the court below and the court below shall consider the same in accordance with law. Needless to say that the applicants can approach the superior courts through appropriate proceedings, in case the objections are dismissed and the order turns out to be adverse to them.
8. Consequently, this petition is held to be rather premature and is dismissed With observations as indicated.
9. Parties shall appear before the trial court on February 15, 1993, to take further orders in the matter.