Delhi District Court
Arvind Mohan Johri vs Registrar Of Companies on 3 June, 2017
IN THE COURT OF SPECIAL JUDGE, CBI (PC ACT)-06, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
CR No. 215/2017
Arvind Mohan Johri
S/o late Sh. G.N. Johri
R/o 14, Prem Nagar, Ashok Marg,
Lucknow, Uttar Pradesh.
.........Petitioner
Versus
Registrar of Companies,
NCT of Delhi & Haryana
Through Company Prosecutor
Having office at 4th Floor, IFCI Tower,
61, Nehru Place, New Delhi-110019
.......Respondent
Instituted on : 16.05.2017
Argued on : 02.06.2017
Decided on : 03.06.2017
JUDGMENT
1. This revision petition is directed against the order dated 08.06.2016 and judgment dated 10.07.2013 passed by the learned Addl. Chief Metropolitan Magistrate, Central District ('trial court'). Vide order dated 10.07.2013, the petitioner was declared a proclaimed offender in Criminal Complaint No. 2311/3 arising out of a criminal complaint under section 209 A (8) of the Companies Act, 1956 for contravention of section 209 A (5) of the Act and vide judgment dated 08.06.2016 the other accused persons namely Vipin Kumar and Rajeev Kapoor were acquitted with an observation CR No. 215/2017 Arvind Mohan Johri vs. Registrar of Companies page 1 of 6 that the file would be revived as and when the accused persons who are proclaimed offenders would be arrested. In this revision petition the petitioner has challenged the said observation only.
2. The petitioner has also filed an application for condonation of delay in filing the present revision petition. It is stated in the application that the petitioner got the information of impugned order from one Mr. Rajeev Kapoor on 03.04.2017 who is arrayed as accused no.3 in the present complaint. It is further submitted that the petitioner met Rajeev Kapoor when he visited Delhi for a case titled as Registrar of Companies vs. M/s Cyberspace Ltd. pending before the Hon'ble Delhi High Court wherein the petitioner is also a party and he has been regularly appearing before the Hon'ble Delhi High Court. It is submitted that the period of limitation would commence from the date of knowledge i.e. 03.04.2017 and the present petition was filed on 09.05.2017 and the same is not barred by limitation.
3. I have held hereinafter that the case of the petitioner that he was not aware of the pendency of the complaint before the trial court appears plausible. Thus the delay in filing the present revision petition is hereby condoned.
4. Trial court record has been called and perused.
5. The relevant facts of this case are that the respondent Registrar of Companies, NCT of Delhi and Haryana filed a criminal complaint under section 209 A (8) of Companies Act, 1956 for alleged contravention of CR No. 215/2017 Arvind Mohan Johri vs. Registrar of Companies page 2 of 6 section 209 A (5) of the Act. The offence under section 209 A (8) of the Companies Act, 1956 entails punishment of fine which shall not be less than Rs. 50,000/- and imprisonment for a term not exceeding one year. In this complaint, the subject matter company namely M/s Cyberspace Limited was shown as accused no.1. In addition six individuals including the present petitioner were shown as individual accused persons. Present petitioner was shown as accused no.2 and he was shown to be the resident of 801, Satnam Cufee Pared, Mumbai.
6. Vide order dated 03.11.2001, the learned Addl. Chief Metropolitan Magistrate found prima facie grounds to proceed in the matter and directed issuance of summons to the accused persons for 01.02.2002.
7. Perusal of record would show that the summons issued to the petitioner came back unserved with the report that no such person resides there. Thereafter the proclamation against the petitioner under section 82 Cr.PC was directed to be published in a newspaper. Ultimately, vide impugned order dated 10.07.2013, the petitioner was declared a proclaimed offender.
8. Perusal of record would also show that the trial against the accused persons who were appearing in the court namely Vipin Kumar and Rajeev Kapoor continued and eventually vide judgment dated 08.06.2016, the trial acquitted those accused persons with the following observations:
"27. Even otherwise, as per the case of complainant, both accused have CR No. 215/2017 Arvind Mohan Johri vs. Registrar of Companies page 3 of 6 to produce the record as demanded by the Investigating Officer. Perusal of cross-examination of PW-2 shows that records of company were seized by the CBI and records were in the custody of CBI. Hence, in these circumstances also, when the records were in the custody of CBI, there is no occasion for the accused persons to produce the record before the complainant.
28. In view of the aforesaid facts and circumstances, it is held that the prosecution has failed to prove its case beyond reasonable doubt against accused Vipin Kumar and Rajeev Kapoor. Accordingly, accused Vipin Kumar and Rajeev Kapoor are acquitted for the offence under section 209A (8) of the Act.
29. File be consigned to record room, after taking the bail bonds under section 437A of Code of Criminal Procedure with the direction that file would be revived as and when accused persons who are proclaimed offender would be arrested"
9. Now the petitioner Arvind Mohan Johri who was one of the directors of M/s Cyberspace Ltd. has filed the present revision petition.
10. I have heard learned counsel for both the parties.
11. It is the case of the petitioner in the present revision petition that process in the matter were always issued at the address of Mumbai of the petitioner but that premises at Mumbai was vacated by him in February 2001 and since then he has been residing at 14, Prem Nagar, Ashok Marg, Lucknow, Uttar Pradesh. Thus he was not aware of the process being issued in his name or the pendency of the present criminal trial before the trial court. It is also his case that the petitioner has been appearing in CR No. 215/2017 Arvind Mohan Johri vs. Registrar of Companies page 4 of 6 various proceedings pending before the Hon'ble Delhi High Court in relation to the affairs of the company wherein the address of the respondent is that of Lucknow. The petitioner has filed various documents to show that he has been residing at the address noted above at Lucknow.
12. I find substance in the contention of the petitioner. There is no evidence to show that the petitioner was residing at Mumbai during the relevant period. Learned counsel appearing for the Registrar of Companies was unable to point out any evidence on record or otherwise to show that the petitioner can be imputed with the knowledge of the complaint and dates of hearing of the present case. Registrar of Companies (complainant) would have been a party to the proceedings before the Hon'ble Delhi High Court but the Registrar of Companies never intimated the present address of the petitioner to the trial court.
13. Learned counsel for the petitioner stated on instructions from the petitioner who was present in this court on 02.06.2017 that the petitioner shall surrender before the trial court or the successor court without prejudice to his rights and contentions during trial within such time as may be laid down by this court.
14. Considering that there is no evidence to show that the petitioner was residing at 801, Satnam Cufee Pared, Mumbai or he was otherwise aware about the proceedings before the trial court or that the petitioner was intentionally evading process of law, order dated 10.07.2013 of the trial CR No. 215/2017 Arvind Mohan Johri vs. Registrar of Companies page 5 of 6 court to the extent it declared the present petitioner a proclaimed offender is set aside.
15. The petitioner shall surrender before the learned trial court on or before 15.07.2017. If the petitioner does not do so, learned trial court shall be at liberty to take appropriate steps in the matter. If the petitioner surrenders before the trial court, it shall pass an appropriate order to secure the presence of the petitioner during trial through bail and surety or such other measure as considered appropriate by the trial court in accordance with law on which no opinion is being expressed by this court.
16. Present revision petition also seeks to challenge the judgment 08.06.2016 passed by the learned trial court to the extent that it directs that case file would be revived as and when accused persons who are proclaimed offenders would be arrested. Learned counsel for the petitioner was unable to show as to how that observation in the judgment dated 08.06.2017 would affect the petitioner. I see no reason to interfere with the judgment dated 08.06.2016 in this revision petition and thus the prayer to that extent is declined.
17. With the above direction, the present revision petition is disposed of.
18. TCR be sent back along with a copy of this order. Revision file be consigned to Record Room.
Announced in the open court Sarita Birbal
on 03.06.2017 Special Judge-CBI (PC Act)-06
Tis Hazari Courts/Delhi.
CR No. 215/2017 Arvind Mohan Johri vs. Registrar of Companies page 6 of 6