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Andhra High Court · body

2001 DIGILAW 149 (AP)

M. Narasimhulu v. State Of A. P.

2001-02-13

Y.V.NARAYANA

body2001
Y. V. NARAYANA, J. ( 1 ) THE present writ petition has been filed seeking for a Writ of Certiorari to quash crime No. 89/2000 of P. S. Asifnagar, hyderabad. ( 2 ) THE factual matter leading to the riling of the case is set out as hereunder: the first petitioner was the Director of m/s. Oban Finance and Investments Ltd. , which was incorporated under Companies act. The second petitioner is the wife of the first petitioner, who was also another director. It would appear that the petitioner was using a car Premier 118 NE bearing no. AP 12a-1116 belonging to the 2nd respondent company and subsequent to (he resignation by both the petitioners, they refused to return the car inspire of repeated demands. They resigned from the company w. e. f. 9-9-1999. The Director of the company made a complaint with the first respondent and it was taken on file as crime No. 89/2000 under Sections 406, 420 and 468 of Indian Penal Code. ( 3 ) MR. L. Ravichander, learned Counsel appearing for the petitioners contends that even by going through the averments in the f. I. R. , no case is made out for a criminal investigation. It is his contention that section 630 of the Companies Act provides sufficient machinery for dealing with a person, who wrongfully retains the property of a company. In short it is his submission that the present F. I. R. in cr. No. 89/2000 is nothing but a abuse of process of Court. ( 4 ) THE first respondent filed a detailed counter. In the counter it is stated that the car bearing Regn. No. AP 12a-116 was purchased by M/s. Oban Finance and investments Limited, Hyderabad, and it was given to the petitioners, the then directors of the company, and subsequently after their resignation, the vehicle was not returned to the company and it also transpired that the petitioners have managed to take possession of the letterheads, Rubber Stamps and got the vehicle transferred in their name in the r. T. A. Office. In short it is his submission that a prima facie case has been made out under Sections 406, 420 and 468 I. P. C. and hence it needs investigation. ( 5 ) MR. In short it is his submission that a prima facie case has been made out under Sections 406, 420 and 468 I. P. C. and hence it needs investigation. ( 5 ) MR. G. V. R. Choudary, learned counsel appearing for the 2nd respondent contends that the investigation is yet to begin and it is not proper for this Court to curtail the entire investigation by exercising the power vested under Article 226 of the constitution of India. ( 6 ) A short question that falls for consideration is "whether the petitioners have made out a case for quashing the F. I. R. to fall within the description of the rarest of rare case as set out by the Apex Court?" ( 7 ) IT is on record to show that an F. I. R. has been registered as Crime No. 89/2000 under Sections 406, 420 and 468 I. P. C. These offences are cognizable in nature and needs investigation. F. I. R. sets the criminal law into motion and once the police find that there is a cognizable offence, they are bound to investigate the same under section 157 of the Criminal Procedure Code. This cannot be scuttled in a routine manner. Further, the contention of the learned counsel for the petitioners is that section 630 of the Companies Act, there is proper remedy to get recovery of the property retained by the resigned member of the company and that the criminal proceedings are barred, cannot be accepted. In In re. M. Vaidyanathan a Division Bench of Madras High Court has held that section 630 of the Companies Act is quite distinct and different from that of the scope of Sections 406, 409 and 477-A of Penal code. The Division Bench also held that there is no bar for investigation in a criminal case and therefore, the investigation by the police in respect of alleged offences punishable under sections 406, 409 and 477-A of Penal Code can be proceeded. Following this judgment, i am of the opinion that Section 630 of the companies Act is no bar for investigation of the criminal cases. A Full Bench of this court in Gangaram Kandaram vs. Sunder chikkha Amin and others has clearly held that quashing of first information, at the initial stage, exercising jurisdiction under article 226 of the Constitution of India is not justified. A Full Bench of this court in Gangaram Kandaram vs. Sunder chikkha Amin and others has clearly held that quashing of first information, at the initial stage, exercising jurisdiction under article 226 of the Constitution of India is not justified. It was also held by the Full bench of this Court that the nature of offence could not be decided, unless investigation is completed. In a recent judgment of the Apex Court in Mahavir prashad Gupta and another vs. State of National capital Territory of Delhi and others, the Apex court has clearly held that:"the law on the subject is very clear. In the case of State of Bihar vs. Murad all Khan ( (1988) 4 SCC 655) it has been held that jurisdiction under section 482 of the Code of Criminal procedure has to be exercised sparingly and with circumspection. It has been held that at an initial stage a court should not embark upon an inquiry as to whether the allegations in the complaint are likely to be established by evidence or not. Again in the case of State of Haryana vs. Bhajan lal ( (1992) Supp. (1) SCC 335) this court has held that the power of quashing criminal proceedings must be exercised very sparingly and with circumspection and that too in the rarest of rare cases. It has been held that the Court would not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. It has been held that the extraordinary or inherent powers did not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. " ( 8 ) WITH reference to the circumspection of the entire case law, it has to be held that exercising the power under Article 226 of the Constitution of India shall be exercised in a cautious manner and only in the rarest of rare cases, where a complaint does not disclose any offence, then the F. I. R. can be quashed. The present case on hand does not fall within the parametres laid down by the apex Court. Whether the petitioners have committed forgery, breach of trust and cheating, has to be investigated. I do not see any reason to exercise the jurisdictions of this Court under Article 226 of the constitution of India. The present case on hand does not fall within the parametres laid down by the apex Court. Whether the petitioners have committed forgery, breach of trust and cheating, has to be investigated. I do not see any reason to exercise the jurisdictions of this Court under Article 226 of the constitution of India. The writ petition is accordingly dismissed. No costs.