Gauhati High Court
Gyasuddin Ahmed vs Nizamuddin Ahmed on 5 June, 2023
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GAHC010008842020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./122/2020
GYASUDDIN AHMED
S/O LATE ANWARUDDIN AHMED, R/O RATANPUR, P.O. C.R. BUILDING, P.S.-
DIBRUGARH, DIST-DIBRUGARH
VERSUS
NIZAMUDDIN AHMED
S/O LATE ANWARUDDIN AHMED, R/O C/O LEKHI TEA ESTATE RATANPUR,
P.O.-C.R. BUILDING, P.S.-DIBRUGARH, DIST-DIBRUGARH
Advocate for the Petitioner : MR. P J SAIKIA
Advocate for the Respondent : MR. S S S RAHMAN
:: PRESENT ::
HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
For the Petitioner : Mr. P.J. Saikia,
Sr. Advocate.
For the Respondent : Mr. P. Kataki,
Advocate.
Date of Hearing : 16.05.2023.
Date of Judgment : 05.06.2023.
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JUDGMENT AND ORDER (CAV)
Heard Mr. P.J. Saikia, the learned senior counsel appearing for the
petitioner. Also heard Mr. P. Kataki, the learned counsel representing the
respondent.
2. This is an application under Section 482 of the CrPC challenging the order
dated 16.11.2019 passed by the learned Addl. Chief Judicial Magistrate,
Dibrugarh in C.R. Case No.24c/2017 framing charge against the petitioner
under Sections 406/468/420 and 417 of the Indian Penal Code.
3. The petitioner and the respondent are brothers. They have a sister called
Mrs. Shahana Islam Dombeck who resides abroad. The two brothers and sister
are the partners of a firm, named Ranu Tea Estate. The two brothers had 35%
share and the sister had 30% share in the said Tea Estate.
4. In the meantime, the two brothers and their wives formed a company
names, M/S. Enver Plantation Pvt. Ltd. Each of the brothers had 50% share in
the company. The present petitioner Gyasuddin Ahmed is the Managing
Director of the company whereas the respondent Nizamuddin Ahmed is the
Joint Managing Director.
5. Apart from all those, Nizamuddin Ahmed owned a Tea Garden, called
Leik Tea Estate and Gyasuddin Ahmed owned Dulia Tea Estate.
6. M/S. Enver Tea Plantation Pvt. Ltd. has a tea factory and it processed tea
leaves of Dulia Tea Estate, Leik Tea Estate and Ranu Tea Estate.
7. Nizamuddin Ahmed has alleged that his brother Gyasuddin Ahmed being
the Managing Director of M/S. Enver Tea Plantation Pvt. Ltd. and being the
Managing Partner of Raun Tea Estate, misappropriated huge sums of money
by committing fraud after keeping him in dark. Gyasuddin Ahmed allegedly
took advantage of the fact that Mrs. Shahana Islam Dombeck lived abroad
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and in that way, till 2015, he took the said advantage.
8. Nizamuddin Ahmed has alleged that his brother sold some parts of Ranu
Tea Estate to someone but he never received his share of the sale price
though he is entitled to 50% of the sale.
9. In the meantime, Shahana Islam Dombeck executed a Power of Attorney
in favour of Nizamuddin Ahmed and therefore, Nizamuddin Ahmed wanted to
look after the financial aspect of the company on her behalf. He found many
anomalies. He found that Dulia Tea Estate was run by the income of Leik Tea
Estate and Ranu Tea Estate, thereby causing financial loss to him.
10. Nizamuddin Ahmed further alleged that he has not been paid his salary.
According to Nizamuddin Ahmed, his brother Gyasuddin Ahmed has caused
anomalies in the balance-sheet of the company.
11. Alleging the aforesaid facts, Nizamuddin Ahmed filed the complaint case
against Gyasuddin Ahmed. The trial court framed the charges under Sections
406/468/420 and 417 of the Indian Penal Code against Gyasuddin Ahmed.
12. The learned senior counsel Mr. Saikia has claimed that the trial court has
no jurisdiction to entertain the compliant case. He has claimed that the
allegations relate to company affairs and therefore, the case is maintainable in
a special court established under Section 435 of the Companies Act, 2013.
13. Per contra, Mr. Kataki submits that the allegations brought by Nizamuddin
Ahmed constitutes criminal offences under the Indian Penal Code and
therefore, the criminal proceeding is maintainable in law.
14. I have considered the submissions made by the learned counsels of both
sides.
15. I have decided to agree with Mr. Kataki that the provisions of the
Companies Act is applicable to criminal acts committed by companies. In the
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case in hand, the allegations pertain to acts committed by an individual.
16. The power under Section 482 of the CrPC is the inherent power of the
High Court for preventing the abuse of the process of the Court. The guidelines
for exercising the power under Section 482 of the CrPC has been laid down by
the Supreme Court in the State of Haryana v. Bhajan Lal, AIR 1992 SC 604. Para
102 of the said judgment is quoted as under:
"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
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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 there 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 a 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 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."
17. Reverting to the case in hand, I find that Nizamuddin Ahmed has brought
allegation against Gyasuddin Ahmed accusing that he has committed
criminal offences. The learned trial court found a prima facie case against
Gyasuddin Ahmed.
18. I have no doubt that the plea of the learned counsel for the petitioner
that this matter should be dealt with by the special court constituted under
Section 435 of the Companies Act, is not acceptable.
19. The power of the High Court under Section 482 CrPC is not an appellate
power. This power is a supervisory one for prevention of the abuse of the
process of the court. The trial court has framed the charges against the
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petitioner. I am of the opinion that this is not a fit case for exercising the power
under Section 482 CrPC.
20. The criminal petition is devoid of merit and hence dismissed accordingly.
JUDGE
Comparing Assistant
