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[Cites 8, Cited by 0]

Delhi District Court

Sh. Ghan Shyam Dass Chopra vs The Registrar Of Companies on 14 September, 2012

            IN THE COURT OF SH. NARENDER KUMAR
              ADDITIONAL SESSION JUDGE:DELHI



Criminal Revision No. : 03/12

In the matter of:­

Sh. Ghan Shyam Dass Chopra                        .... Petitioner



            Versus



The Registrar of Companies                        ...Respondent



                                   JUDGMENT

This judgment is to dispose of revision petition filed by the petitioner, who is one of the accused before the Trial Court in complaint case No. 1077­1078/03 titled as ROC Vs Trilok Nath Gambhir.

2. The petitioner has challenged impugned order dated 31.1.12 vide which two applications filed by the petitioner, before the trial court, have been dismissed and notice has been ordered to be framed against the petitioner­accused No. 3 and co­accused No. 5 and 7 (non­ petitioners) and the matter adjourned for prosecution evidence.

3. The impugned order passed by Ld. Trial Court reads as under:

"Arguments on behalf of accused heard and gone through the case file.
One application under Section 259 CrPC is filed by the accused. This provision is not attracted at all in the facts of this csae and I do not find any merits in this application and same appears to be filed without any ground, therefore same is dismissed. Other application is also filed by the accused prayed for discharge in view of order of Hon'ble Supreme Court dated 15.9.11. Vide the said order Hon'ble Supreme Court of India upheld the order of Hon'ble High Court of Delhi and therefore there is no basis of filing this application. This application is also dismissed.
Ld. Counsel for accused relied upon the judgment 2010 III AD (Delhi) 559 CRL.A.902/2008 praying for acquittal of the accused. After careful consideration of the judgment and materials on the record, I am of the considered opinion that there is no ground for acquittal of the accused in this case and notice under Section 251 CrPC is to be given to the accused for prosecution in the matter.
Notice is framed against the accused No. 3, 5 and 7 to which they do not plea guilty and claimed trial".

4. A perusal of Trial Court record would reveal that application dated 31.01.2012 came to be filed by the accused­petitioner herein with prayer for following the procedure prescribed under Section 259 CrPC.

5. The accused­petitioner and his co­accused were summoned by the Trial Court in the complaint case alleging commission of offences under Section 63 and 628 of Companies Act.

6. It may be mentioned here that in the course of arguments before this court, accused - petitioner has submitted that he does not press the prayer put forth in the application U/s 259 Cr.P.C. for trial of the case as the warrant case.

7. A perusal of the same application would reveal that the accused­petitioner also raised the point regarding delay in filing of the complaint, on the ground that there is no provision in the Companies Act for obtaining any sanction and in the complaint no such provision has been disclosed. It was also submitted that delay in filing complaint cannot be condoned without giving an opportunity to the accused.

8. Petitioner has contended that the Trial Magistrate could not condone delay in launching prosecution, without issuing notice to him and that since in this case the delay has been condoned without issuing notice, in view of the decision in State of Maharastra vs. Shardachandra Vinayak Dongre and Others AIR 1995 Supreme Court 231, the impugned order deserves to be set aside.

9. It has also been contended that under the Companies Act there is no provision for obtaining sanction of prosecution for the offence under Section 63 and 628 of the Act and as such the complaint having been filed beyond the prescribed period of limitation, the impugned order deserves to be set aside.

On the other hand, learned company prosecutor for respondent has submitted that at the time the accused - petitioner challenged the summoning order and the order rejecting his application for recalling of summoning orders, Hon'ble High Court has already observed in para ­10 of the order dt.14.08.08 passed in criminal revision petition no.664/04 & 686/04 that the petitioner should raise all his defences before Trial Court to prove his case. The contention raised by learned Company Prosecutor further is that once the order passed by Hon'ble High Court has been upheld by the Hon'ble Apex Court, there is no merit in the contention raised by petitioner that the complainant be precluded from leading evidence on the point that he was director. On the point of limitation, learned company prosecutor has referred to decision in Manjit Jaju vs. Registrar of Companies, NCT of Delhi and Haryan (2010) 159 CompCas112 (Delhi).

10. Vide the impugned order another application dated 31.01.2012 filed by the accused­petitioner has also been dismissed by the Trial Court while observing that the application was filed without any basis.

11. This record/applications by the accused - petitioner was filed with a prayer that the complainant be precluded from leading evidence to disturb the findings recorded by other court in Suit No.72/03 to the effect that the plaintiff - accused has ceased to be a Director of M/s Nova Dhatu Udyog Ltd. w.e.f.29.10.93. On this application, learned Trial Magistrate observed that the application was filed without any basis as the order passed by Hon'ble High Court has been upheld by the Hon'ble Apex Court vide judgment dt.15.09.2011.

12. A perusal of the impugned order would reveal that learned Trial Magistrate had disposed of both the applications vide this single order. The second application with a prayer for precluding the complainant from leading evidence actually deserve to be taken up only after framing of notice, if any. Each application should have been disposed of vide separate order as the applications were not connected to each other and were on separate points.

13. Furthermore, vide the impugned order, learned Trial Magistrate while dismissing first application simply took into account that application was under Section 259 CrPC. It appears that Learned Trial Magistrate, did not go through the contents of the application. In the application, there is not only prayer for trial of the case as a warrant case but the points of limitation and sanction were also raised. Learned Trial Magistrate was required to give observations on these points. However, Learned Trial Magistrate has not given any reasons whatsoever on these two points and rather dismissed the application with the only observation that provision of Section 259 CrPC are not attracted and that he did not find any merit in the application and the same appeared to have been filed without any ground. In view of the aforesaid points raised, it could not be observed that the application was without any ground.

14. As regards the other application with prayer that complainant be precluded from leading evidence on the point that the petitioner was no more Director on the relevant date, learned Trial Magistrate has observed that the application has been filed without any basis.

In the application, the petitioner referred to judgment delivered by the civil court in suit no. 72/03. In the application, petitioner also referred before the Trial Magistrate to decision in State vs. Gyan Chand 2010 (III) AD Delhi 559. Copy of the judgment passed by the civil court in suit no. 72/03 was also stated to be have already been filed. But the Trial Magistrate has not given any reasons as to how the application was without any basis. Furthermore, in the impugned order, learned Trial Magistrate has observed that the application was filed with a prayer for discharge. This observation made by the learned Trial Magistrate is against record. No prayer for discharge was made in this application.

15. In view of the above discussion, this Court finds that the learned Trial Magistrate has disposed of the two applications without reasons and not in accordance with law. Without reasons, it has become difficult for this Court to test the legality and illegality of the impugned order. Accordingly, the impugned order passed by the Trial Court as regards the accused­petitioner is concerned, deserves to be set aside and case is required to be remanded for reconsideration on the two applications filed by the petitioner and also on the point of notice.

16. In view of the above findings, impugned order is set aside qua the accused­ petitioner and Learned Trial Magistrate is directed to decide the matter afresh on the point of notice and the two applications i.e. first application only on the ground of sanction and limitation, and the other application with prayer for precluding the complainant from leading evidence on the facts already decided by the civil Court in suit no. 72/06, after providing opportunity to the parties to advance arguments.

Revision petition is disposed of accordingly.

17. Parties to appear before the Trial Court on 24.09.2012.



Announced in Open Court 
on  14.09.2012                                         (Narinder Kumar )
                                             Additional Sessions Judge(Central)
                                                                Delhi.