Karnataka High Court
Megha Gupta vs State Of Karnataka By on 25 July, 2024
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL PETITION NO. 2328 OF 2023
C/W
CRIMINAL PETITION NOS. 3591 OF 2022
C/W 5537 OF 2022, 5915 OF 2022
AND 12668 OF 2023
IN CRL.P NO.2328/2023
BETWEEN:
FOUZAN MOHAMMED KHAN
S/O LATE B.N. SAMIULLA KHAN,
AGED ABOUT 43 YEARS,
R/AT FLAT NO.7,
MUSVEE RESIDENCY,
NO.23, HAL ROAD,
RICHARDS TOWN,
BENGALURU - 560 005.
...PETITIONER
(BY SRI. DEEPAK BHASKAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY VYALIKAVAL POLICE STATION,
SESHADRIPURAM SUB-DIVISION,
BENGALURU CITY - 560 003.
2
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE - 560 001.
2. TARIQ AHMED
S/O AFZAL AHMED,
AGED ABOUT 37 YEARS,
DIRECTOR,
M/S AD PROCESS (PRINTERS) PVT. LTD.,
NO.11, 1ST MAIN,
PALACE GUTTAHALLI,
BENGALURU - 560 003.
ALSO AT:
R/AT NO.10, FIRST MAIN, ITI LAYOUT,
BENSON TOWN POST,
BENGALURU - 560 046.
...RESPONDENTS
(BY SMT. RASHMI PATEL., HCGP FOR R1;
SRI. SHYAM SUNDAR M.S., SENIOR COUNSEL FOR
SRI. P. USMAN, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED
14.12.2022 PASSED BY THE LEARNED VIII ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE IN PCR NO.17219/2022
AND THE F.I.R. IN CRIME NO.0004/2023 DATED 19.01.2023
REGISTERED BY THE RESPONDENT NO.1 FOR THE
OFFENCES P/U/S 120B, 201 AND 379 OF IPC.
BETWEEN:
1. AFZAL AHMED
S/O M A JAMEEL,
AGED ABOUT 65 YEARS,
DIRECTOR,
AD PROCESS (PRINTERS) PVT LTD.,
2. TARIQ AHMED
S/O AFZAL AHMED,
AGED ABOUT 36 YEARS,
3. FARAH AFZAL
W/O AFZAL AHMED,
AGED ABOUT 59 YEARS,
PETITIONERS 1 TO 3 ARE R/AT:
NO.10, IST MAIN, ITI LAYOUT,
BENSON TOWN POST,
BANGALORE - 560 046.
4. SANYA AHMED AFZAL
W/O ABDUL BASID,
AGED ABOUT 33 YEARS,
R/AT NO.12, 1ST FLOOR,
1ST MAIN, JAYAMAHAL,
BANGALORE - 560 046.
...PETITIONERS
(BY SRI. M.S.SHYAM SUNDAR, SENIOR COUNSEL FOR
SRI. USMAN P., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA BY
VYALIKAVAL PS,
SHESHADRIPURAM SUB-DIVISION,
BANGALORE - 560 003.
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
ANNEXE BUILDING,
BENGALURU - 560 001.
2. MOHAMMED FOUZAN KHAN
S/O SAMIULLA KHAN,
AGED ABOUT 42 YEARS,
R/AT FALT NO.7, MUSVEE
RESIDENCY, NO.23, HALL ROAD
RICHARDS TOWN,
BENGALURU - 560 005.
...RESPONDENTS
(BY SMT. ANITHA GIRISH, HCGP FOR R1;
SRI. ROHAN KOTHARI, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO QUASH THE CASE REGISTERED
IN CR.NO.17/2022 BY THE RESPONDENT POLICE FOR THE
OFFENCE P/U/S 506, 504, 120B, 418, 403, 406, 409, 420,
465, 468, 471 OF IPC AND SEC.66C, 66D OF I.T ACT
AGAINST THE PETITIONERS, PENDING ON THE FILE OF THE
I ACMM, BANGALORE.
BETWEEN:
SATHISH AITHAL. N. G.
S/O. LATE GOPAL AITHAL,
AGED ABOUT 46 YEARS,
RESIDING AT NO. 8 AND 9,
"VARASIDDHI", I A MAIN ROAD,
LINGADHEERANAHALLI,
PAVAMANAPURA LAYOUT,
2ND BLOCK,
BENGALURU-560 109.
...PETITIONER
(BY SRI. SUBHASHCHANDRA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA BY
VYALIKAVAL PS,
SHESHADRIPURAM SUB-DIVISION,
BANGALORE.
REPRESENTED BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
ANNEXE BUILDING,
BENGALURU - 560 001.
2. MOHAMMED FOUZAN KHAN
S/O SAMIULLA KHAN,
AGED ABOUT 42 YEARS,
R/AT FLAT NO.7, MUSVEE
RESIDENCY, NO.23, HALL ROAD
RICHARDS TOWN,
BENGALURU - 560 005.
...RESPONDENTS
(BY SMT. ANITHA GIRISH, HCGP FOR R1;
SRI. DEEPAK BHASKAR, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO QUASH THE FIR REGISTERED
IN CR.NO.17/2022 BY THE RESPONDENT POLICE FOR THE
OFFENCE P/U/S 506, 504, 120B, 418, 403, 406, 409, 420,
465, 468, 471 OF IPC AND SEC.66(C), 66(D) OF I.T ACT
AGAINST THE PETITIONER, PENDING BEFORE 1ST ACMM, NR
ROAD, BENGALURU REGISTERED BY THE RESPONDENT
POLICE STATION.
BETWEEN:
MEGHA GUPTA
W/O MUKUL GUPTA
AGED ABOUT 34 YEARS
RESIDING AT NO.56, J. P. NAGAR
15TH CROSS, 19TH MAIN
BANGALORE - 560 078.
...PETITIONER
(BY SRI. SUBHASHCHANDRA, ADVOCATE)
AND:
1. STATE OF KARNATAKA BY
VYALIKAVAL PS,
SHESHADRIPURAM SUB-DIVISION,
BANGALORE.
REPRESENTED BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
ANNEXE BUILDING, BENGALURU - 560 001.
2. MOHAMMED FOUZAN KHAN
S/O SAMIULLA KHAN,
AGED ABOUT 42 YEARS,
R/AT FLAT NO.7, MUSVEE
RESIDENCY, NO.23, HALL ROAD
RICHARDS TOWN, BENGALURU - 560 025.
...RESPONDENTS
(BY SMT. ANITHA GIRISH, HCGP FOR R1;
SMT. DEEPA BHASKAR, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO QUASH THE FIR AND
COMPLAINT IN CR.NO.17/2022 DATED 22.02.2022
REGISTERED BY THE VYALIKAVAL POLICE STATION FOR
THE OFFENCE P/U/S.506, 504, 120-B, 418, 403, 406, 409,
420, 465, 468, 471 OF IPC 1860 AND SEC.66(C), 66(D) OF
I.T. ACT 2000 PENDING ON THE FILE OF I ADDL.C.M.M.,
NRUPATHUNGA ROAD, BENGALURU IN SO FAR AS
PETITIONER IS CONCERNED.
BETWEEN:
SRI. AFSAR PASHA
S/O LATE BABA SAB,
AGED ABOUT 56 YEARS,
R/AT NO.120, JABBAR BLOCK,
9TH MAIN ROAD, 2ND CROSS,
GUTTAHALLI, BANGALORE - 560 003.
...PETITIONER
(BY SRI. SHASHANK NAGENDRAN, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY VYALIKAVAL POLICE STATION,
REPRESENTED BY THE PUBLIC
PROSECUTOR,
HIGH COURT BUILDING,
ANNEXE BUILDING, BENGALURU.
2. TARIQ AHMED
S/O AFZAL AHMED,
AGED ABOUT 38 YEARS,
DIRECTOR,
M/S PROCESS PRINTERS PVT LTD.,
NO.11, 1ST MAIN, PALACE,
GUTTAHALLI,
BENGALURU - 560 003
...RESPONDENTS
(BY SMT. RASHMI PATEL, HCGP FOR R1;
SRI. M.S. SHYAM SUNDAR, SENIOR COUNSEL FOR
SRI. P. USMAN, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO QUASH THE FIR IN
CR.NO.4/2023 REGISTERED BY THE VYALIKAVAL POLICE
STATION FOR THE OFFENCE P/U/S.120B, 201 AND 379 OF
IPC ARISING OUT OF PCR NO.17219/2022 PASSED BY THE
LEARNED VIII ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU AS AGAINST THEM.
THESE CRIMINAL PETITIONS HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 14.06.2024 THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
RESERVED FOR ORDERS ON: 14.06.2024
PRONOUNCED ON : 25.07.2024
CAV ORDER
The Crl.P.No.2328/2023 is filed by the
petitioner/accused No.1 and Crl.P.No.12668/2023 is filed by
petitioner/accused No.2 for quashing the FIR in Crime
No.4/2023 registered by Vyalikaval Police Station arising out
of PCR No.17219/2022 for the offences punishable under
Sections 120B, 201 and 379 of IPC.
2. Whereas Crl.P.No.3591/2022 is filed by the
petitioner/accused Nos.1 to 4 and Crl.P.No.5537/2022 is
filed by the petitioner/accused No.5 and Crl.P.No.5915/2022
is filed by the petitioner/accused No.6 for quashing the FIR
in Crime No.17/2022 registered by the Vyalikaval Police
Station for the offences punishable under Sections 506, 504,
120B, 418, 403, 406, 409, 420, 465, 468, 471 of IPC and
Section 66 (C) and 66(D) of Information Technology Act,
2000, herein after referred to as IT Act.
3. The facts of the case in Crl.P.No.2328/2023 and
12668/2023 are that the respondent No.2 herein filed a
private complaint under Section 200 of Cr.P.C., before the
Magistrate in PCR No.17291/2022, in turn the complaint has
been referred to the police under Section 156(3) of Cr.P.C.,
The Vyalikaval police registered the FIR in Crime No.4/2023
for the offences punishable under Sections 120B, 201, 379
of IPC. It is alleged by the complainant that he is the
Managing Director of M/s.Ad Process (Printers) Pvt. Ltd.
situated at Guttahalli, Bangalore (hereinafter referred to as
'Company'). Accused No.1-Fouzan Mohammed Khan was
the Director of the Company and accused No.2 was an
accountant in the said Company. The Company was found
by the father of the complainant in the year 1992. Accused
No.1 is close relative and nephew of the father of the
complainant. He become a share holder in 1999, by his
father. Prior to that, the complainant's father had also made
his mother Talad begum and sister Mussarrat Afza as share
holders without any contribution. Accused No.1, is a B.Com
graduate having no job. Hence, he was made as a Director
in the Company. The father of the complainant contributed
the funds for making the accused as a shareholder and a
Director. It is further alleged that in 2020-21, the
complainant suffered set back due to Covid-19 and accused
No.1 found acting detrimental to the interest of the
Company. Accused No.1 stopped coming to the Company
from February 2020 without any reason, however he was
drawing the salary and receiving the rents. Accused Nos.1
and 2 developed enmity to each other. Even prior to Covid-
19, accused No.1 was creating nuisance in the Company and
he was found acting contrary to create cordial atmosphere
in the Company. Accused No.1 was taking advantage of
the fact that the complainant's father was the maternal
uncle, has misbehaved with the clients. However, the same
was tolerated by the complainant as he was the close
relative.
4. On 11.09.2021, accused No.1 called the
complainant around 6 p.m. stating that he would be
meeting few friends in the office and he will leave by 7.30
p.m. Accordingly, accused No.1 with one Mohd.Younus
came to the office at 7.30 p.m. The complainant as a
routine, checked the CCTV camera installed and the
footage was not accessible and CCTV camera was turned
off. Later, the complainant received a legal notice from an
advocate that at 9.30 p.m. on the very same day i.e. on
11.9.2021, making an untenable allegation against the
complainant and his family members and diverting attention
of the complainant and advised him to take stern action
against accused No.1. Hence, accused No.1 was removed
as a Director of the Company by following due process of
law on 19.10.2021. Several documents and invoices were
missing. The complainant and others received a notice on
23.03.2022 from a lawyer of accused No.1 along with
Company petition filed before the National Company Law
Tribunal at Bangalore, (hereinafter referred to as 'NCLT')
challenging the resolution of the Company for removing
accused No.1 from the Company. Then the complainant
given the reply notice and verified the documents, where he
found the accused No.1 and accused No.2 were removed
from employment and he did not turn out. Later, the
complainant came to know that accused No.2-accountant
conspired with accused No.1 and facilitated to keep all the
documents on 11.09.2021, readily packed in ten boxes to
remove easily from the Company by alleging convenience.
5. It is further alleged that Ramesh, who was the
Security Guard, was not on duty on 11.09.2021. On
verification from a Security Guard, he came to know that he
left the office at 9.30 p.m. on 11.09.2021 carrying 10
boxes. On inspection of the records, the Company found
missing of files and other equipments. Then, the
complainant issued the legal notice to the advocate of
accused No.1 regarding theft of articles, which he came to
know only on searching the documents, thereby accused
Nos.1 and 2 committed the offence of theft of documents
and articles.
6. It is further alleged that the accused No.1
conspired with accused No.2 to commit the theft of articles.
Accused No.2 removed the documents from his custody and
kept it ready for taking the same by accused No.1. Shaik
Idayat and Younus Parvis, the friends of accused No.1
blocked the CCTV camera and concealed the footage and
caused disappearance of evidence. Hence, he approached
the police and filed a complaint on 22.11.2022, but no
action was taken. Hence, he approached the Commissioner
of Police on 02.12.2022 and they also not taken action.
Hence, he filed the private complaint before the Magistrate
for taking action against him. Based upon the reference of
the complaint, the police registered FIR and took up
investigation, which is under challenge by accused Nos.1
and 2.
7. The facts of the case in Crl.P.Nos.3591/2022,
5537/2022 and 5915/2022 are that respondent No.2 Mohd
Fouzan Khan filed a complaint with Vyalikaval police on
22.02.2022 and the same is registered as Crime
No.17/2022 alleging that he is the Director of M/s. Ad
Process Printers Pvt. Ltd. and the said Company was started
in 1992 by one Abdul Ahmed and Dayanand. Abdul
Ahmed-accused No.1 was the Director and his son accused
No.2, his wife-accused No.3 and daughter-accused No.4
were also the Directors of the said Company. Accused No.5,
Sathish Aithal was the Chartered Accountant of the
Company and accused No.6 was the Company secretary.
The complainant also a share holder of the Company from
1997. In the year 2001, he became the Director of the
Company. The Company was running smoothly and he lent
Rs.25,75,363/- as loan and he was having 9000 shares in
the Company. His mother was having 4300 shares and his
elder sister was also having 6000 shares.
8. It is further stated that the annual report of the
Company has been submitted the Registrar of Companies
and Form No.4 has been submitted to the Ministry of
Corporate Affairs and Registrar of Companies. While sending
the report, the accused persons forged the signature
through copy paste method and obtained the print out and
sent to the Registrar of Companies. Even though the
complainant was the Director of the Company, but without
his consent, the signature has been forged by the accused
persons. It is further contended that Form Nos.MGT-7 and
MGT-7A were sent to the Registrar of Companies by sending
wrong information. They have not given information to the
complainant and without giving any information, they
removed him from directorship by forging the signature of
the complainant and sent the mail. All the accused persons
have colluded each other and created the documents and
sent to the Registrar of Companies. Later, he demanded
Rs.25,75,363/- and profit of the Company and the accused
has given Rs.7.57% by reducing from 11.41% and they
have to give Rs.2.50 crores to the complainant, but they
have not paid with an intention to cheat him. The same
came to his knowledge on 28.01.2022. He also came to
know about the financial affairs, where the accused created
the bills and the payments were made from the account of
the Company, when he questioned the same, they kept him
away. Hence, he issued the legal notice to the accused
persons in September 2021, but when the complainant went
to the Company, they abused him in filthy language and
threatened with criminal intimidation. Therefore, prayed for
taking action against the accused persons.
9. The police after receipt of the complaint for the
offences punishable under Sections 506, 504, 120B, 403,
406 , 409 420, 465, 468, 471 of IPC and Sections 66(C) and
66 (D) of IT Act,. Feeling aggrieved by the same, accused
Nos.1 to 6 have filed three Criminal petitions, one by
accused Nos.1 to 4, another by accused No.5 and one more
petition by accused No.6, for quashing the FIR.
10. Heard arguments of learned Senior Counsels for
the petitioners and learned counsel for the respondent and
learned (2) High Court Government Pleader for respondent-
State.
11. The learned Senior Counsel Sri. M.S.Shyam
Sundar appearing for petitioner in Criminal Petition
No.3591/2022 and other two connected matters has
contended that the matter is pertaining to the Company
where the respondent No.2 alleged that he has been
cheated Rs.2.50 crores by the Company and not paid the
amount. They created the false document by forging his
signature, when the same was questioned, the accused said
to be threatened him and abused him in filthy language. The
complaint came to be filed on 22.02.2022 there is a delay in
lodging the complaint. The police without any preliminary
enquiry registered the FIR, which is not correct and the
offence under Section 66 (C) of the I.T Act shall be
investigated by the Police not below the rank of inspector of
police as per Section 78 of the I.T. Act but the FIR was
registered by Women Police Sub Inspector, who is not
authorised to investigate the matter as per Section 157 of
Cr.P.C.
12. It is further contended by the learned Senior
Counsel that as per Section 206 of the Companies Act, the
Registrar is having power to call for the information, inspect
the books and conduct enquires in respect of companies
affairs. Therefore, the police do not have any power to
investigate the Company matter. The respondent already
approached the National Company Law Tribunal and
accordingly the Company law tribunal seized the matter. A
special investigation team to verify any fraud has to be
appointed that is Serious Fraud Investigation Office
(S.F.I.O) as per the rules of the Company law. Therefore,
filing the complaint before the police is liable to be quashed.
13. It is further contended that as per Rules 8 to 10
of the Companies Rules, the Central Government prescribed
rules are dealing with the maintenances of the electronic
documents and therefore the complaint itself is not
sustainable.
14. The learned Senior Counsel has further contended
that as per Section 57-A of the Companies Act, punishment
is prescribed for personation of share holders and Section
59 of the Companies Act, the Tribunal has power to do
rectification of Register of the member of the Company.
Therefore, prayed for setting aside the FIR.
16. Per-contra, learned Senior Counsel Miss. Jayna
Kothari appearing for respondent No.2 has contended that
there are several allegations made against the petitioners in
a lengthy complaint, but the police have mentioned only
brief allegation in the FIR when there is no order for
investigating by the S.F.I.O, the police can investigate the
matter in IPC cases. Registering the FIR is altogether
different from investigation. Therefore, the FIR is
sustainable.
17. The accused persons have forged the signature of
the complainant they hold the board meeting and removed
the complainant from the Directorship in the meeting held
on 11.10.2021. The accused persons were web hosted the
report to the Company law board by forging the signature of
the complainant. The police have power to file the charge
sheet. Therefore, prayed for dismissing the petition.
18. Learned High Court Government Pleader Miss.
Anitha Girish has also supported the case of the prosecution
contending that the accused persons forged the signature of
the complainant and sent the same to the Company
Registrar without the presence of the Company head, they
held the meeting and removed him from Directorship they
have not paid Rs.2.50 crores to the complainant. Therefore,
there is a prima facie material placed on record for having
committed cognizable offence. Hence, police can investigate
the matter and it is further contended that Registering the
FIR by Women P.S.I is no bar and only the investigation
shall be conducted by the Police Officer not below the rank
of Inspector of Police. Therefore, the FIR cannot be
quashed. Even otherwise the FIR can be transferred to any
other agency for investigating the matter by S.F.I.O or
C.B.I. Hence, prayed for dismissing the petition.
19. Both the counsels have relied upon the judgments
of Hon'ble Supreme Court and High Court.
20. The learned Senior Counsel for the petitioner
mainly relied upon the judgment of Co-ordinate bench
reported in 2016 SCC online KAR 8856 in the case of
Shaila Chebbi Govind and Others -Vs- State of
Karnataka and connected matters. Whereas, the
respondent counsel relied upon the judgment of Co-ordinate
bench in Neha Rafiq Chachadi -Vs- State of Karnataka
in Criminal Petition No.102165/2019.
21. The contention taken by the learned Senior
Counsel for the petitioners is that the investigation cannot
be taken out by the police officer not below the rank of
inspector of police for the offence punishable under Section
66 of the I.T. Act in new Section 78 of IT Act. Here, in this
case, a woman PSI registered the FIR in Crime No.17/2022.
In this regard, the learned Senior Counsel for the
respondent/complainant relied upon the judgment of the
Co-ordinate Bench of this Court in Neha Rafiq Chachadi
case, supra, wherein in a similar situation, the Co-ordinate
Bench while considering section 78 of the IT Act, at para 11,
has held that there is no bar for registering the case by a
police official, lesser in the rank that of a police inspector
under Section 78 of the IT Act, which would contemplate
that the investigation should be conducted by a person who
is of the rank of an inspector of police not below the rank of
an inspector of police. On perusal of the FIR, admittedly,
the Women PSI registered the FIR and there is no evidence
before this Court to show that the PSI herself investigated
the matter and in the meanwhile, FIR has been stayed by
this Court. Such being the case, merely the FIR was
registered by below the rank of an inspector of police, will
not vitiates the investigation as the investigation shall be
done by the inspector of police as per Section 78 of the IT
Act. Therefore, the contention of the Learned Senior
counsel that there is violation of Section 78 by registering
the FIR by the sub inspector of police is not acceptable.
23. Another contention raised by the learned Senior
Counsel for the petitioner is that, once the complaint filed,
the police could have conducted preliminary enquiry and
registered the FIR. Of course, the police have not done any
preliminary enquiry while registering the FIR.
24. On perusal of the record, the matter is pertaining
to the dispute between the Directors of the company. It is
alleged by the complainant that by forging the signature of
the complainant, the accused persons removed his name
from the Company and sent the message to the Registrar of
Companies, and web hosted and thereby they forged the
signature of the complainant for removing the directorship.
25. In this regard, the learned senior counsel for the
petitioners has contended that the Co-ordinate Bench of this
Court in the case of Shaila Chebbi Govind and Others -
Vs- State of Karnataka and connected matters case has
quashed the FIR, similarly in this case on hand where the
dispute between the directors by removing one of the
Director of the company. On perusal of the judgment of the
Shaila Chebbi stated supra, the Co-ordinate Bench of this
Court has held at paragraphs 29, 30 and 31 are as under:-
29. In the first of the above
complaints, it is alleged thanh cheubled had
uploaded their names as directors of the
company on the portal of the RoC on the
basis of forged share transfer forms and
have falsely claimed that the complainant,
his wife, Priyanka and Krishna Mohan
Ramaneni have resigned from the
directorship of the company.
30. The second of the above
complaints is by a director and shareholder
alleging that the accused named by him had
forged his signatures on the share transfer
forms and had uploaded their names as
directors on the portal of the RoC and had
indicated falsely that the complainant had
resigned from the Board.
31. The third complaint is by the wife
of Madhukar Angur, claiming as a director
and share holder and her allegations are
almost verbatim the same as that of her
husband in the first complaint above.
26. On perusal of the said facts it is squarely
applicable to the case on hand, the Co-ordinate Bench
further held in Shaila Chebbi's case at paragraph Nos.45
and 46 are as under:-
45. As matters of law and procedure, in
circumstances such as are highlighted in
these petitions, it is clearly a matter covered
under Chapter XIV of the Companies Act,
2013. Section 213 provides for the proper
recourse available to a person or persons
complaining of fraud, misfeasance or other
misconduct committed in the management of
the business, towards the company or
towards any of its members. It would be a
matter falling entirely in the jurisdiction of the
National Company Law Tribunal, which shall
first investigate the matter and thereafter
have the persons who may be found on such
investigation and enquiry being conducted, to
have committed any acts of fraud or other
acts of misfeasance or misconduct to be tried
before the Special Court constituted to try
offences under the Act. Section 213 of the
Act, however, is yet to come into force as it
has not been notified by the Government of
India, in terms of sub -section (3) of section 1
of the 2013 Act.
46. The corresponding provision under
the Companies Act, 1956 is section 237
thereof. In that, when the necessary
adjudication as to the validity or otherwise of
statutory forms filed before the RoC are in
dispute, the criminal court is hardly vested
with the jurisdiction to adjudicate on the
same, merely on the allegation of fraud and
forgery. On the other hand, section 237 of the
1956 Act, clearly envisages a situation
involving alleged fraud. It would therefore
clearly to obtain a conviction against the
accused without the concerned orients being
rendered void or invalid. Hence, the
complaints above referred filed prior to the
petitioners having consented to the statutory
forms being declared void by the RoC and the
complaint or complaints in respect of the
subsequent events of the petitioners
resubmitting the statutory forms declaring the
directorship of the petitioners and the
resignation of the complainant and his wife,
are an exercise in futility. The complainant
and his wife will necessarily have to take
recourse to section 237 of the 1956 Act. It
may eventually result in prosecution under
section 242 thereof. The complaints seeking
prosecution for the alleged offences in respect
of which a special procedure is provided is
thus misconceived and not maintainable. In
so far as the complaint filed by Krishna Mohan
Ramaneni is concerned, the same is now
redundant in view of his stand as reflected
hereinabove. Insofar as the complaints
pertaining to the denial of the status of the
complainant, Madhukar Angur, as the
Chancellor, Alliance University and his
subsequent removal from the said position,
while incidentally reiterating th allegations
which are the subject matter of the earlier
complaints, against the accuse -petitioners, is
certainly not a subject matter that can be
adjudicated before t criminal court. There is
no dispute that with the enactment of the
Alliance University Act, 2010, it was Madhukar
Angur who was named the Chancellor. It is
also not in dispute that the term of office was
for life. The Act does not provide for the
removal of the Chancellor from office.
However, having regard to certain grave
circumstances, the extreme measure of
removal has been exercised. In this regard,
the correctness or the validity of the same is
necessarily to be answered by the State
Government in terms of section 57 of the said
Act. Or it would be an option open for the
complainant to approach such other forum
which could exercise jurisdiction, in
addressing the legality of such removal. But it
is certainly not the criminal court which could
address the issue. The reiteration of other
allegations against the accused which are
already subject matter of other omplaints
referred to above would hardly clothe the
court below with any such jurisdiction. In the
result the writ petitions are allowed. The
proceedings pending in Crime No. 76/2016,
Crime No. 104/2015, Crime No. 108/2016,
Crime No. 115/2016, Crime No. 105/2015,
and Crime No. 97/2015 of Anekal Police
Station and the order dated 29th September,
2015 passed in CC No. 955/2015, order dated
29th September, 2015 in CC No. 956/2015
and the order dated 27th July, 2015 in CC No.
701/2015 by the Principal Civil Judge and
JMFC, Anekal, are hereby quashed.
27. On careful reading of the judgment of the Co-
ordinate Bench, it is clearly applicable to the case on hand,
where the allegation against the petitioner wherein he web
hosted the report to the Registrar of Companies by forging
the signature. Therefore, as per Section 213 recourse
available to the parties to approach the Company Law
Tribunal. It also came to be known that the respondents
already approached the Company Law Tribunal and the
notice has been issued to the petitioners. Such being the
case, the matter is purely pertaining to the company affairs.
Though the respondent has produced a lengthy complaint
before this Court, but those complaints are not part of the
FIR, where the police have received a separate complaint
and registered FIR. Therefore, the very complaint filed
before the police registering the FIR in the company affairs
is not maintainable. Therefore, the police are required to
make a preliminary enquiry prior to registering the FIR in
the company matters which is commercial matter.
Therefore, as per the Lalita Kumari vs. Government of
Uttar Pradesh and others reported in (2014) 2 SCC 1,
the police prior to registering the FIR, they could have made
preliminary enquiry and then registered FIR. Therefore, on
this ground the FIR is not sustainable.
28. Learned senior counsel also relied upon another
judgment passed by the Coordinate Bench in
Crl.P.No.3550/2017 dated 21.10.2022 in SRI. M.
GOPAL Vs SRI. GANGA REDDY in similar company
matters, the coordinate bench quashed the Criminal
proceedings. The Delhi High court in the case of RK
Guptha Vs Union of India reported in AIR Online 2023
Delhi 1414 in a company matter, the Delhi high court also
quashed the investigation.
29. Learned counsel for the respondent and learned
High Court Government Pleader has contended that the
court can transfer investigation to SFIO for investigation,
when the matter was seized by the law tribunal and when it
is found that the serious fraud is committed as per the
charge XIV of the Companies Act, the tribunal can refer the
matter for Investigation by inspector to investigate the
company affairs, with Serious Fraud Investigation Office as
per section 211 of Companies Act. Therefore, I am of the
view that registering the FIR and investigating the matter by
police, in the company affairs is not acceptable when the
matter is already pending before the NCLT and the NCLT can
refer the matter to the inspector SIFO for investigation.
Therefore, the FIR registered by the police is not sustainable
under the law.
30. That apart, accused Nos.5 and 6 are the auditor
as well as Secretary, they executed the work of the
Company as per the AGM consisting by accused Nos.1 to 4.
Therefore, there is no material placed on record as against
accused Nos.5 and 6. Hence, the FIR against accused Nos.1
to 6 are not sustainable under law. Hence, this criminal
petitions filed by accused Nos.1 to 6 in
Crl.P.Nos.3591/2022, 5537/2022 and 5915/2022 deserves
to be allowed.
31. As regards to the Crl.P.Nos.2328/2023 and
12668/2023 filed by the petitioners/accused for quashing
the FIR registered by the police arising out of PCR referred
by the respondent and inturn a case in Crime No.4/2023
was filed. The respondent No.2 filed private complaint
under Section 200 of Cr.P.C., and got it referred to the
police under Section 156(3) of Cr.P.C.
32. Learned senior counsel appearing for the
petitioners contended that the accused was one of the
Directors and he requested the complainant for coming to
the office on 11.9.2021 and he has been permitted to come
to meet some friends. But later in the evening, he went
back and the complainant not suspected anything, but later
came to know that the accused said to be stolen the
documents and shifted by packing 10 boxes of the
documents, which was alleged to have been supported by
the accused No.2. Learned counsel further contended that
the accused No.1 already filed complaint against respondent
and others. A Criminal case has been already registered
against them in the same police station for removing the
petitioner No.1 from the post of the Director, which was
already challenged before the NCLT. Therefore, it is
contended that the petitioner not approached the police and
not complied as per the guidelines issued by the PRIYANKA
SRIVASTAVA AND ANOTHER vs. STATE OF UTTAR
PRADESH AND OTHERS reported in (2015) 6 SCC 287
and directly filed complaint and got it referred. There is
delay in lodging the complaint. This complaint is counter
blast to the complaint filed by the petitioner against the
respondent. A stay was granted by the NCLT which is still
operating. It is further contended that as per the complaint,
the petitioner resigned/removed from the post of Director
on Feb-2020 itself and he is not coming to the office.
Therefore, question of coming to the office, stealing the
documents on 11.9.2021 cannot be acceptable. Further
contended that all the documents are available in website.
The same was obtained by the petitioner and filed the case
against the respondent before the NCLT. Therefore, there is
no question of theft of any documents and there is no case
made out against the petitioner. Hence, prayed for
quashing the same.
33. Per contra, learned senior counsel appearing for
the respondent No.2 has contended, the police have
investigated the matter and filed the charge sheet. If there
is any illegality, the police could not have filed charge sheet.
In the meanwhile, charge sheet has been filed, therefore
FIR cannot be quashed. Further contended that the
statement of the witnesses dated 11.1.2024 clearly reveals
10 boxes were taken by the accused under the guise of
taking the documents to the auditor office and later on, the
he got shifted to another vehicle. The driver of the auto
rickshaw also given statement. Therefore, there is a clear
case of theft committed by the petitioner and hence prayed
for dismissing the petitions.
34. Learned HCGP, Smt. Rashmi patel also supported
the case of the prosecution stating that there are 3 eye
witnesses examined by the police, which reveals stealing of
the documents from the office by the accused. Therefore,
FIR or charge sheet cannot be quashed. Hence prayed for
dismissing the petition.
35. On hearing the arguments, perusal of the
records, which reveals that there is a complaint filed by the
petitioner No.1 against the respondent and others. The
same was registered in Crime No.17/2022 in the same
police station, where the police have taken up the
investigation,. The allegation made by the petitioner was
that the respondent by forging the documents and signature
of the petitioner No.1, removed the petitioner from the
Directorship of the Company and the same was reported to
the Registrar of Companies by uploading the same in the
website. It is contended by the petitioner that the accused
persons colluded together and removed him from the post.
After obtaining the documents, he has approached the NCLT
and obtained the stay, which is operating. In the
meanwhile, the respondent No.2 filed complaint against the
petitioner stating that the documents filed by the petitioner
before the NCLT are all stolen from the company on
11.9.2021. The complaint has been filed before the
Magistrate and got it referred to the police. It is stated by
the petitioner that this complaint is a counter blast to the
complaint filed by the petitioner. On perusal of the dispute
between the parties, it is a company affairs and mis
management and removing the petitioner from post of
Directorship by the other directors of the company. The
complaint against the respondent by this petitioner is that
the complainant was cheated with Rs.2.5 crores without
paying his investment money. The dispute is already
seized by the NCLT. NCLT requires to consider whether the
removal of the petitioner from the post of Directorship is in
accordance with law or any forgery was committed or not?
If the NCLT found any prima facie case for forging the
documents by the complainant then the NCLT can direct the
SFIO to investigate the matter and file the report. This
court already taken view in the connected matter stated
above filed by the respondent and others for challenging the
FIR in Crime No.17/2022. Admittedly, this complaint filed
by respondent No.2 is nothing but counter blast on the
petitioners. The petitioners said to be taken the documents
from the company and utilized for filing the petition before
the NCLT. The post of directorship of the petitioner and his
removal was not been adjudicated by the NCLT or Registrar
of Companies. Such being the case, the police cannot
investigate the matter in respect of company affairs. The
same view taken in the above said case. Therefore, the
question of theft and destroying the evidence does not
arises The documents of the company will be available with
the Registrar of Companies and in the company itself. that
can be summoned by the NCLT while adjudication of the
dispute.
36. The police have not produced any documents to
show that there was conspiracy between accused Nos.1 and
2 and stolen the documents. Therefore, I am of the view
the police cannot investigate and file the charge sheet for
the company affairs in view of the judgment passed by the
coordinate bench of this court in Neha Rafiq Chachadi case,
stated supra.
Therefore, the FIR in Crime No.17/2022 registered by
Vyalikaval Police Station and consequential charge sheet
filed by the police requires to be quashed.
Accordingly, I proceed to pass the following order;
The Crl.P.Nos.3591/2022, filed by the
petitioner/accused Nos.1 to 4, Crl.P.No.5537/2022 filed by
the accused No.5, and Crl.P.No.5915/2022 filed by accused
No.6 are allowed.
Consequently, the FIR in Crime No.17/2022 registered
by Vyalikaval Police Station is hereby quashed.
Crl.P.No.2328/2023 and Crl.P.No.12668/2023 filed by
the accused Nos.1 and 2 respectively are allowed.
The FIR in Crime No.4/2023 registered by Vyalikaval
Police Station on the complaint filed by the respondent
arising out of PCR No.17219/2022, is hereby quashed.
Both parties are allowed liberty to contest their matter
before the NCLT.
Sd/-
(K.NATARAJAN)
JUDGE
CS/VS/AKV
CT:SK
