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1998 DIGILAW 817 (MAD)

K. Radhakrishnan v. C. V. Manikandan and Others

1998-06-19

M.KARPAGAVINAYAGAM

body1998
Judgment :- The petitioner herein is the complainant and the respondents herein are the accused in S.T.C. No. 1319 of 1995 on the file of the VII Judicial Magistrate, Coimbatore. 2. The petitioner filed a complaint against the respondents under Section 628 of the Indian Companies Act alleging that the respondents/accused fabricated the documents and made a false statement in Form No. 32 under the Indian Companies Act alleging that the petitioner and his father did not attend the meetings of the Board of Directors held on 12-4-1993, 18-6-1993 and 19-7-1993 after receipt of notices of the meetings. Thereby they ceased to be Directors of the Company. 3. This complaint was filed on 24-4-1995. After taking sworn statement from the complainant, the learned Judicial Magistrate took cognizance of the complaint under Section 628 of the Indian Companies Act in S.T.C. No. 1319 of 1995 and issued processes to the respondents. 4. On receipt of process the respondents filed a petition under Section 203 of the Code of Criminal Procedure requesting the Court to dismiss the complaint as they are not liable to be proceeded with under Section 628 of the Indian Companies Act. This petition was resisted by the complainant by filing a counter statement. The learned trial Judge, on consideration of the submissions made by the respective parties, the petition and the counter, upheld the contentions of the respondents and dismissed the petition under Section 203 of the Code of Criminal Procedure. This order is challenged in this revision by the complainant/petitioner herein. 5. Mr. N. P. K. Menon, learned counsel for the petitioner, attacking the impugned order, would strenuously contend that the learned Magistrate ought not to have dismissed the petition under Section 203 of the Code of Criminal Procedure on the basis of the defence plea made by the respondents. He would further contend that once processes were issued under Section 204 of the Code of Criminal Procedure by the learned Magistrate there can never be any order under Section 203 of the Code of Criminal Procedure. 6. Per contra, Mr. Mayilsami, learned counsel for the respondents would, on the strength of the decision in Mathews v. State of Kerala, strenuously contend that the application requesting the Court to dismiss the petition was permissible under Section 203 of the Code of Criminal Procedure. 7. 6. Per contra, Mr. Mayilsami, learned counsel for the respondents would, on the strength of the decision in Mathews v. State of Kerala, strenuously contend that the application requesting the Court to dismiss the petition was permissible under Section 203 of the Code of Criminal Procedure. 7. A reading of the judgment rendered by the Apex Court would make it clear that the contention of the respondents is correct. But, it may be stated that the order passed by the learned Magistrate dismissing the petition would not come under Section 203 of the Code of Criminal Procedure, but it must be considered to be an order passed under Section 204 of the Code of Criminal Procedure by withdrawing the processes. 8. Therefore, in my view, the learned Magistrate is well within the powers to dismiss the complaint by withdrawing the processes under Section 204 of the Code of Criminal Procedure. Of course, it is true that the application has been dismissed under Section 203 of the Code of Criminal Procedure. It is mere a wrong quoting of the provision. Wrong quoting of the provision would not disentitle the learned Magistrate to invoke the powers vested on him. 9. Coming to the merits, as pointed out by the learned counsel for the petitioner, the learned Magistrate has accepted the defence plea and dismissed the petition. No doubt, it is true that in para 6 of the petition the petitioner referred about the suit filed by one Kuttikrishnan, the father of the complainant. There is also reference about the interim order. Merely because the interim order of injunction has been suspended in Civil Miscellaneous Appeal by the appellate Court, the learned Magistrate has concluded on the basis of the defence documents that the petition is not maintainable till a finding has been rendered with reference to those documents by the Civil Court. 10. It must be noticed in the said suit filed after filing of the instant complaint, the issue is not the same as that of the issue raised in this complaint. So, all the more reason, the learned Magistrate should not have canvassed with reference to the order passed in C.M.A. arising out of the suit filed after filing of this complaint. 11. So, all the more reason, the learned Magistrate should not have canvassed with reference to the order passed in C.M.A. arising out of the suit filed after filing of this complaint. 11. Whatever it is, the learned Magistrate, while withdrawing the processes and while dealing with the application under Section 204 of the Code of Criminal Procedure, he has to see, on reconsideration of the complaint, whether there is any offence made out for trying the case. As pointed out by the Apex Court, the fact that the process have already been issued is no bar to drop the proceedings. But, it can be done only if the complaint on the very face of it does not disclose any offence against the accused. 12. Admittedly, in the impugned order there is no finding that prima facie offence is not made out on perusal of the complaint alone. The learned Magistrate has gone beyond the limits by looking into the documents produced by the defence before the trial and come to the conclusion that the complaint is maintainable only after the Civil Court decides the issue. 13. This, in my view is patently illegal. The learned Magistrate has to try the case and find out whether the averment made in the complaint is true or not on the basis of the materials placed before him. Therefore, in view of the above observations, I find that there is infirmity in the impugned order which is liable to be set aside. 14. At this stage, the learned counsel for the respondents pointed out that there is a specific averment in the complaint made against the first respondent stating that he filed a false statement knowing it to be false. There is no such accusation as against the other respondents 2 and 3. Of course, in the prayer portion of the complaint, it is mentioned that respondents 2 and 3 also have abetted. But, in my view that may not be sufficient to issue processes to respondents 2 and 3 for the offence under Section 628 of the Indian Companies Act. Since mere abetment would not attract the ingredients of Section 628 of the Indian Companies Act. 15. Admittedly, the complaint has been filed under Section 628 of the Indian Companies Act. But, in my view that may not be sufficient to issue processes to respondents 2 and 3 for the offence under Section 628 of the Indian Companies Act. Since mere abetment would not attract the ingredients of Section 628 of the Indian Companies Act. 15. Admittedly, the complaint has been filed under Section 628 of the Indian Companies Act. Therefore, recalling of the processes issued to respondents 2 and 3 is perfectly correct, especially when it is alleged that the first respondent alone has filed a false statement before the Registrar of Companies under Form 32. It is not in dispute that respondents 2 and 3 are not the signatories in Form 32. 16. Therefore, the learned Magistrate is directed to go on with the trial by issuing fresh summons to the first respondent alone and dispose of the case in accordance with law. However, the learned Magistrate may consider merits of the case on the basis of the evidence let in before him, uninfluenced by any of the observations made in this order. 17. With the above observation, the revision is partly allowed to the extent indicated above.