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2001 DIGILAW 379 (AP)

M. Narasimhulu v. State Of A. P.

2001-04-06

S.B.SINHA, V.V.S.RAO

body2001
( 1 ) THIS appeal is directed against a judgment and order dated 13-2-2000 passed by a learned Single Judge of this Court in writ Petition No. 11417 of 2000 whereby and whereunder the writ petition filed by the appellants herein for quashing a First information Report was dismissed. ( 2 ) THE 1st appellant was a Director of a company incorporated and registered under the Companies Act, 1956. The 2nd appellant who is the wife of the 1st appellant was also a Director of the said company. The appellants were using a car allegedly belonging to the 2nd respondent herein. They resigned from the directorship but refused to return the car in spite of repeated demands. A complaint under sections 406, 420 and 468 of the Indian penal Code was filed. The contention of the appellants is that having regard to the fact that at best they have committed an offence under section 630 of the Companies Act, the impugned First Information Repor,t should be quashed. Strong reliance in this connection has been placed on G. Kandaram vs. Sunder Chikha Amin1 and Mahavir Prasad gupta vs. State of NCT of Delhi. ( 3 ) THE First Information Report against the petitioners contains the following allegation:"the facts of the case are that the accused persons noted in col. No. 7 were resigned from the Board of directors of M/s. Oban Finance and investment Ltd. During the time of his directorship the company has provided vehicle for official duty no. AP 12a 1116 premier but after resignatibn the accused has not handed over the vehicle even either nine months till to-day he is utilizing the company vehicle for his personal use unauthorisedly when he is not the director of the company. He snatched rubber stamps and letter head pad of the company forcibly which he utilized for transfer of the company vehicle to his personal name through r. T. A. Office Karkhana which is an unlawful act. " ( 4 ) SECTIONS 630 and 634 of the Companies act read thus: "630. He snatched rubber stamps and letter head pad of the company forcibly which he utilized for transfer of the company vehicle to his personal name through r. T. A. Office Karkhana which is an unlawful act. " ( 4 ) SECTIONS 630 and 634 of the Companies act read thus: "630. Penalty for wrongful withholding of property : (1) ]f any officer or employee of a company- (a) wrongfully obtains possession of any property of a company; or (b) having any such property in his possession wrongfully withholds it or knowingly applies it to purposes other than those expressed or directed in the articles and authorized he shall, on the complaint of the company or any creditor or contributory hereof, be punishable with fine which may extend to one thousand rupees. (2) The Court trying the offence may also order such officer or employee to deliver up or refund, within a time to be fixed by the Court, any such property wrongfully obtained or wrongfully withheld or knowingly misapplied, or in default, to suffer imprisonment for a term which may extend to two years. 634. Enforcement of orders of Court: any order made by a Court under this act may be enforced in the same manner as a decree made by the Court in a suit pending therein. " ( 5 ) A bare perusal of the allegations made in the First Information Report would clearly show that it is not a case where the appellants have only been charged for not returning the properties of the company but also have been accused of snatching rubber stamps and letter head pad of the company forcibly so as to transfer the vehicle in their names. ( 6 ) BY reason of lodging of a First information Report, no person s fundamental right is infringed. The Court in exercise of its jurisdiction under Article 226 of the Constitution of India can quash the investigation if it is found to be mala fide. A complaint may be quashed only in a case where the allegations contained therein even if given face value and taken to be correct in entirety, make out no case for investigation. ( 7 ) THE point at issue is no longer res integra in view of a Full Bench decision of this Court in G. Kandaram s case (supra) wherein it has been held:". . . . . . ( 7 ) THE point at issue is no longer res integra in view of a Full Bench decision of this Court in G. Kandaram s case (supra) wherein it has been held:". . . . . . . . . Unless the investigation is completed, material evidence is gathered by examining different persons and authorities with regard to the collection of money, return of visas and the cheques issued by the petitioner and his brother, it cannot be said that the FIRs are without any basis and the petitioner has to be discharged for the accusation under sections 420 and 406 of IPC. The complaint cannot be treated as a charge-sheet. Based on the complaints, firs were issued. Unless further investigation is made and charge-sheet submitted, it is difficult to come to a definite conclusion. The power under article 226 of the Constitution of India ought not to be invoked in such a case. On the facts and circumstances of the case, the learned Single Judge was not justified in holding that it is a fit case under Article 226 of the Constitution of India for quashing the FIRs. 13. Unless the investigation is completed, it cannot be presumed that the complaint does not make out offences under Sections 420 and 406 of ipc or that the alleged offence falls under Section 405 IPC only and that prosecution is barred by limitation under Sections 468 and 469 Cr. P. C. . . . . . . . . . . It would be wholly improper to exercise jurisdiction under Article 226 even before the investigation is completed and decide these partly legal and partly factual questions. " ( 8 ) IN Mahabir Prasad Gupta s case (supra) the apex Court, upon taking into consideration a large number of decisions observed:"10. Mr. Chidambaram also relied on the case of Hridaya Ranjan Prasad verma vs. State of Bihar [ (2000) 4 SCC 168 : 2000 SCC (Cri) 786]. In this case there was transaction of sale of land by the appellant to respondent 2. The cheques had been issued by respondent 2 in favour of the appellant. Those cheques were dishonoured for insufficiency of funds. The appellant had lodged complaint/fir under Sections 406, 420 and 120-B of IPC. As a counterblast, respondent 2 filed a complaint alleging offences under Sections 418, 420, 423, 469, 504 and 120-B IPC. The cheques had been issued by respondent 2 in favour of the appellant. Those cheques were dishonoured for insufficiency of funds. The appellant had lodged complaint/fir under Sections 406, 420 and 120-B of IPC. As a counterblast, respondent 2 filed a complaint alleging offences under Sections 418, 420, 423, 469, 504 and 120-B IPC. This court held as follows: (SCC pp. 174-75 and 177, paras 8-9 and 16 ). 8. In this case of State of Haryana vs. Bhajan Lal (1992) Supp (1) SCC 335: 1992 SCC (Crl.) 426 this Court in the backdrop of interpretation of various relevant provisions of the Code of criminal Procedure under chapter. XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 Cr. P. C. gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice, making it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulate and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised:102. (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the First information Report and other materials, if any, accompanying the fir do not disclose cognizable offence, justifying an investigation by police officers under Section 156 (1) of the code except under an order of a magistrate within the purview of section 155 (2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, np investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155 (2) of the Code. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, np investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155 (2) of the Code. (5) Where the allegations made in the fir or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. ( 9 ) IN the decision this Court added a note of caution to the effect that the power of quashing a criminal proceedings should be exercised very sparingly and with circumspection and that too in the rarest of rare cases . ( 10 ) IN view of the aforementioned authoritative pronouncements, it must be held that there is no merit in this appeal which is accordingly dismissed. No costs.