Karnataka High Court
Nozer K Desai vs The Official Liquidator Of on 11 November, 2024
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2024:KHC:45561
CRL.RP No. 1179 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 1179 OF 2016
BETWEEN:
1. NOZER K.DESAI
SON OF SRI KERMAN DESAI,
AGED 64 YEARS,
NO.302, PARISHRAM,
40, PALI HILLS,
BANDRA (WEST),
MUMBAI-400005, MAHARASHTRA.
2. MRS. ZARINE N.DESAI
WIFE OF SRI NOZER K.DESAI,
AGED 64 YEARS,
NO.302, PARISHRAM,
40, PALI HILLS, BANDRA (WEST),
MUMBAI - 400005,
MAHARASHTRA.
...PETITIONERS
Digitally (BY SRI C.G.GOPALASWAMY, ADVOCATE FOR
signed by
MALATESH SRI S.V.BHAT, ADVOCATE)
KC
Location: AND:
HIGH
COURT OF
KARNATAKA THE OFFICIAL LIQUIDATOR OF
M/S LAKSHMI BOILERS (SOUTH) PVT.LTD.,
(IN LIQN.) ATTACHED TO THE
HIGH COURT OF KARNATAKA,
"D" & "F" WING,
4TH FLOOR, KENDRIASADAN,
KORAMANGALA, BENGALURU-560034.
...RESPONDENT
(BY SRI K.S.MAHADEV, ADVOCATE)
-2-
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CRL.RP No. 1179 of 2016
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C.
PRAYING TO SET ASIDE THE JUDGMENT DATED 11.07.2016 IN
CRL.A.NO.513/2014 IN THE COURT OF THE LXIX ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-70) AND
SET ASIDE THE JUDGMENT AND SENTENCE DATED 29.04.2014
IN C.C.NO.46/2008 IN SPECIAL COURT FOR ECONOMIC
OFFENCES AT BENGALURU AND ETC.W
THIS CRL.RP, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri C.G. Gopalaswamy, learned counsel for
Sri.S.V. Bhat, learned counsel for the petitioner and Sri
K.S. Mahadevan, learned counsel for respondent.
2. Accused-petitioners being the Directors of
M/s.Laxmi Biolers (South) Pvt. Ltd., under liquidation did
not complied with the provisions of the Companies Act,
2013 (for short 'the Act') in following the books of
accounts ill the company came to be liquidated. Charge
sheet under Section 538 (1)(C) of the Act before the
amendment was filed before the jurisdictional Magistrate.
Accused-Revision Petitioner did not plead guilty, therefore,
trial was held.
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3. In order to prove the case of the prosecution,
Smt. Geethadevi D.N. was examined on behalf of the
official liquidator and 9 documents were placed on record
which were exhibited and marked as Ex.P1 to P9. Among
them, Ex.P1 is the authorization letter, Ex. P2 is the notice
issued to the respondent calling for show cause notice to
the respondent as to why action should not be taken.
Reply was sent by the respondent which was marked as
Ex.P7 and there was another letter that was written by the
Official Liquidator to the revision petitioner on 6.7.2007
and list of books of records.
4. Detail cross examination of PW.1 did not yield
any positive material so as to exonerate the revision
petitioners from the criminal liability.
5. The defence taken by the revision petitioners
before the jurisdictional Magistrate is that the KSIIDC had
seized the entire assets of the company and had also
taken away the books of accounts and therefore, it was
beyond their power to file the books of accounts and
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therefore, they are not liable. Such a defence was
considered by the learned trial Magistrate in detail No.25
and 26 of the impugned order of the trial Magistrate. The
trial Magistrate was of the opinion that the explanation
offered by the accused - revision petitioners was not
sufficient to exonerate their liability. Therefore, convicted
the accused-revision petitioners and ordered them to
undergo simple imprisonment for a day till rising of the
Court and imposed fine amount of `20,000/- each in
default, to undergo simple imprisonment for a period of
three months. Being aggrieved by the same, the revision
petitioners filed an appeal before the learned District
Judge in Crl.Appeal No.513/2014.
6. Learned Judge in the First Appellate Court after
securing the material on record re-appreciated the
material evidence on record and also inter alia took note
of the order passed by the Co-ordinate Bench of this Court
in Company Application No.241/2008 and confirmed the
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order of the trial Magistrate by dismissing the appeal of
the revision petitioners.
7. Being further aggrieved by the same, the
accused-revision petitioners are before this Court.
8. Sri C.G. Gopalaswamy, learned counsel for the
revision petitioners, reiterating the grounds contended
that the revision petitioners were constrained with the
circumstances under which they could not file the revision
petitioner and there was malafide intention in not filing the
revision petitioners and therefore there is no criminality
involved and thus sought for admitting the revision
petition for further consideration.
9. Per contra, Sri K.S. Mahadevan, learned counsel
representing for the Official Liquidator supports the
impugned order. Having heard the parties, this Court
perused the material on record meticulously.
10. On such perusal of the material on record, it is
crystal clear that the revision petitioners failed to file the
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accounts even before KSIIDC attached and seized all the
books of accounts. Proviso to Section 538 of the Act has
also taken note of by the learned trial Magistrate wherein
it has been stated that if the accused proves that he had
no intend to defraud the shareholders, then punishment
under Section 538 of Cr.P.C. could not be imposed.
11. In the case on hand, no such evidence is placed
on record by the accused - revision petitioners except
marking ten documents which are all the documents
pertaining to seizure of the entire establishment of the
revision petitioners by the KSIIDC. Company application
was filed before the Coordinate Bench of this Court in
Company Application No.241/2008 which was dismissed
by this Court.
12. When once the Company Court has dismissed
the application filed by the revision petitioners, they are
not supposed to re-agitate the same issue before the trial
Magistrate. Further, material on record was not sufficient
enough to take the advantage of proviso to Section 538 of
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Cr.P.C by the accused. Under such circumstances, there is
no merit in any one of grounds urged on behalf of the
revision petitioners. All that the trial Magistrate has
ordered simple imprisonment for a day till the rising of the
Court using the discretion taking note of the helplessness
of the accused persons in not filing the accounts in time.
Since the Official Liquidator has not filed any revision
petition, there cannot be any scope for enhancing the
sentence of imprisonment which is discretionary order
passed by the trial Magistrate.
13. Under such circumstances, this Court does not
find any good grounds to admit the revision petition for
further consideration.
14. Hence, the following:
ORDER
i) Appeal is meritless. Hence, admission
declined.
ii) Consequently, revision petition is dismissed.
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iii) Amount of cash surety of `40,000/-
executed by the revision petitioners shall
be appropriated towards the fine imposed
by the trial Magistrate.
iv) Since it is submitted that revision
petitioners have already undergone
simple imprisonment for a day, no further
orders are necessary in this regard.
iv) Office is directed to return the trial
Court records with copy of this order
forthwith.
Sd/-
(V SRISHANANDA)
JUDGE
BS
