Madras High Court

Kader Mydeen M.S Alias Mohaed Salih ... vs State Represented By on 17 February, 2025

Author: G.K.Ilanthiraiyan

Bench: G.K. Ilanthiraiyan

                                                                        CRL.O.P. No. 30477 of 2024

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 17-02-2025

                                            CORAM
                           THE HONOURABLE MR JUSTICE G.K. ILANTHIRAIYAN

                                             CRL OP NO. 30477 of 2024
                                                     AND
                                            CRL MP NO. 17300 OF 2024


                Kader Mydeen M.S Alias Mohaed Salih Khader
                Mydeen
                                                                                  ...Petitioner(s)
                                                          Vs

                1. State Represented By
                   The Inspector Of Police,
                   Avadi CCB Police Station,
                   Avadi City, Thiruvallur Dt.
                  (Crime No.38 Of 2024)

                2. Ahamed Kabeer                                                 ... Respondents

                PRAYER: Criminal Original Petition filed under Section 528 of B.N.S.S.
                praying to call for records and quash the FIR in Crime No.38 of 2024 on the
                file of the 1st respondent police.
                                        For Petitioner    :    Mr.M.Vinoth

                                        For Respondents
                                              For R1    :      Mr.K.M.D.Muhilan,
                                                               Govt. Advocate (Crl. Side)

                                              For R2      :    Mr.S.Agilesh Kumar

                                                         ORDER

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This Criminal Original Petition has been filed to quash the F.I.R.

registered in crime No.38 of 2024 on the file of the 1st respondent police for the

alleged offence under Secs. 406, 409, 465, 468, 467 and 420 of I.P.C.

2. The case of prosecution is that the defacto complainant is the founding

Director and a shareholder of M/s.Seikodenki India Pvt. Ltd., who are in the

business of manufacturing of wire harness cable and allied tools. At the time of

establishment, the defacto complainant and one Ahmed Kabir held 32% share

in the company. Further the petitioner herein held 68% of shares in the

company. During January 2018, two other share holders, 1st and 3rd accused

joined the company and when the petitioner share was reduced to 35%, the 1st

accused share stood at 16.5% and the 3rd accused share stood at 16.5% and the

defacto complainant share stood at 32%. The petitioner was the Managing

Director of the Company, who appointed the 1st accused as the Operations

Director, who purchased raw materials from various suppliers from other

countries. That the 1st accused fixed hidden margins and benefitted out of the

same and the same was not disclosed to the other directors. It was later found

that due to the purchase of raw materials by the 1st accused, the company

suffered a monetary loss of Rs.2,00,00,000/- (Rupees two crores only). That on

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14.02.2020 the petitioner transferred Rs.2,00,00,000/- to his personal account

without informing the other directors. On 12.03.2023 the petitioner herein

transferred all his shares to the 1st accused vide a share purchase agreement

without intimating other directors neither a resolution nor a meeting was

conducted. After which, the 1st accused held a zoom meeting in which defacto

complainant and the 1st accused agreed to be as 50-50 shareholders of the

company and the defacto complainant was appointed as the Managing Director

of the company to handle operations. Further, the 1st accused agreed to have the

defacto complainant as the joint signatory in the accounts maintained at ICICI,

HDFC, South Indian Bank. But, after the zoom meeting, the 1st accused did not

attend phone calls and failed to revert to emails of the defacto complainant and

denied access to book of accounts, bank accounts and email domains of the

company. The defacto complainant failed in his attempts to conduct the formal

board meeting as the 1st and 3rd accused did not cooperate. The defacto

complainant sent the notice to South Indian Bank to stop the operations of the

Bank Account, but failed to succeed. After which, upon the defacto

complainant conducting a internal investigation found that the 1st accused

appointed the 4th accused as the General Manager of the company on

14.02.2017 to March 2020. During the period in which the 4th accused was not

in India, but she came down to India to March 2020 using a tourist visa and

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signed the various documents on behalf of the company, thereby violating the

immigration laws of India. That the 1st accused appointed a new director

without conducting a board meeting. On 19.02.2021 the 1st accused tried to

remove the defacto complainant from the post of Director by filing form to

Ministry of Corporate Affairs. That upon receiving a letter dated 28.06.2021

from the Ministry of Corporate Affairs to furnish relevant documents for

removal of defacto complainant as requested by the Registrar of the companies,

the attempt was dropped. Upon knowing the same, the defacto complainant

lodged a complaint before the Registrar of the Company on 03.03.2021. Hence,

the case.

3. The learned counsel appearing for the petitioner would submit that the

petitioner is an innocent person and he has not committed any offence as

alleged by the prosecution. Without any base, the third respondent police

registered a case in Crime No.38 of 2024 for the offences under Sections 406,

409, 465, 468, 467 and 420 of IPC, as against the petitioner. He would submit

that the petitioner was the Director of 1st accused company, however, in the

year 2020 itself, he was relieved from the company and as such, he has no

relationship with the 1st accused company. He had also pointed out that a sum

of Rs.2 crores was already transferred to the company's account by six

instalments between 15.02.2020 to 20.02.2020. Hence he prayed to quash the

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F.I.R.

4. The learned Government Advocate (Crl. Side) would submit that

there is a specific allegation as against the petitioner even in the F.I.R. and a

sum of Rs.2 crores has been transferred to company account. That apart, the

contentions made by the petitioner before this court cannot be just and proper

and it cannot be quashed at the threshold and it can be investigated by the

Investigation Officer. He would also submit that investigation is almost

completed and the respondent police have only to file final report.

5. Heard the learned Counsel appearing on either side and perused

the materials placed on record.

6. It is seen from the First Information Report that there are specific

allegations as against the petitioner to attract the offence, which has to be

investigated in depth. Further the FIR is not an encyclopedia and it need not

contain all facts and it cannot be quashed in the threshold. This Court finds that

the FIR discloses prima facie commission of cognizable offence and as such

this Court cannot interfere with the investigation. The investigating machinery

has to step in to investigate, grab and unearth the crime in accordance with the

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procedures prescribed in the Code.

7. The Hon'ble Supreme Court of India passed in the judgment

reported in 2019 (14) SCC 350 in the case of Sau. Kamal Shivaji Pokarnekar

vs. The State of Maharashtra & ors., (Crl.A.No.255 of 2019 dated 12.02.2019

) held that the learned Magistrate while taking cognizance and summoning, is

required to apply his judicial mind only with the view to taking cognizance of

the offence whether a prima facie case has been made out for summoning the

accused person. The learned Magistrate is not required to evaluate the merits of

the materials or evidence in support of the complaint, because the Magistrate

must not undertake the exercise to find out whether the materials would lead to

conviction or not. Only in a case where the complaint does not disclose any

offence or is frivolous, vexatious or oppressive, the complaint/FIR can be taken

for consideration for quashment. If the allegations set out in the complaint do

not constitute the offence of which cognizance has been taken by Magistrate, it

can be considered for quashment. Therefore, it is not necessary that a

meticulous analysis of the case should be done before the trial to find out

whether the case would end in conviction or acquittal. If it appears on a reading

of the complaint and consideration of the allegations therein, in the light of the

statement made on oath that the ingredients of the offence are disclosed, there

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would be no justification to interfere. At the initial stage of issuance of process,

it is no open to the Court to stifle the proceedings by entering into the merits of

the contentions made on behalf of the accused. Therefore, the criminal

complaint cannot be quashed only on the ground that the allegations made

therein appear to be of a civil nature. If the ingredients of the offence alleged

against the accused are prima facie made out in the complaint, the criminal

proceeding shall not be interdicted.

8. Further the Hon'ble Supreme Court of India issued directions in

the judgment reported in 2021 SCC Online SC 315 in the case of

M/s.Neeharika Infrastructure Pvt. Ltd., Vs. State of Maharashtra & ors., as

follows :-

“23. ....................

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

..............

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the https://www.mhc.tn.gov.in/judis

conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

.............

xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR; .......”

9. In view of the above discussions, this Court is not inclined to

quash the First Information Report. However, the petitioner is directed to

produce his documents before the Investigating Officer during investigation

and the 1st respondent is directed to complete the investigation in Crime No.38

of 2024 and thereafter, file a final report within a period of twelve weeks from

the date of receipt of copy of this Order, before the jurisdiction Magistrate, if

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not already filed.

10. Accordingly, this Criminal Original Petition stands dismissed.

Consequently, connected miscellaneous petition is closed.

17.02.2025 Internet:Yes/No Index :Yes/No Speaking/Non speaking order rpp

1. Inspector Of Police, Avadi CCB Police Station, Avadi City, Tiruvallur Dt.