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Madhya Pradesh High Court · body

2004 DIGILAW 701 (MP)

Anil More v. Pradeepkumar Baduka

2004-08-25

S.L.KOCHAR

body2004
Judgment ( 1. ) THIS order passed in Cr. Revision No. 883/2003 shall also govern the disposal of Cr. Revision Nos. 884/2003 and 885/2003 above because the applicant in all the three revisions is common, respondent Nos. 2 and 3 are common and formal parties and the point involved in all the three revisions are also common. ( 2. ) THIS revision has been filed by the petitioner against the order dated 9-9-2003 passed by the learned First Addl. Chief Judicial Magistrate, Indore in Cr. Case No. 126/2003 thereby dismissing the application filed by the petitioner that he was not a Director of Dunkan Express transport Co. Pvt. Ltd. respondent No. 3. In support of his contention, the petitioner had filed a photo-state copy of a document, original of which was issued by the Company Registrar, Maharashtra in which at column No. 5, it is mentioned that the resignation of the petitioner from the post of Directorship was accepted by the Company in the 24th Annual General Meeting held on 29th October, 1994. The same document has been filed by the learned Counsel for the petitioner before this Court. He had also filed the certified copy of the document issued by the Company Registrar, Maharashtra to this effect. According to him, on the date of transaction between the complainant and other accused persons, he was not at all concerned with the company. ( 3. ) LEARNED Counsel for the petitioner has placed reliance on a judgment passed by the Madras High Court in the case of S. B. Shankar v. Amman Steel Corporation (2000 Cri. LJ 838 ). In this judgment, the contention of the petitioner/accused was accepted by the Madras High Court on the strength of Form No. 32 issued by the Company Registrar disclosing the fact that the petitioner was not the Director who was in-charge of and responsible for the affairs of the company during the course of relevant period and as such, the proceedings against the petitioner are quashed. ( 4. ) AS against this, learned Counsel for the respondent No. 1 has submitted that after issuing process in a summons case, there is no provision for discharging or deleting the name of the accused persons. It was also submitted that Form No. 32 filed by the petitioner can not be taken into consideration at this stage. ( 4. ) AS against this, learned Counsel for the respondent No. 1 has submitted that after issuing process in a summons case, there is no provision for discharging or deleting the name of the accused persons. It was also submitted that Form No. 32 filed by the petitioner can not be taken into consideration at this stage. He can file this document at the defence stage and this document is also not showing that on the relevant date of transaction, i. e. , in the year 2002, whether the petitioner was the Director or not. It is not clear from this document. This document is showing two dates with regard to holding of 24th Annual General Meeting, one is 29-10-1994 and second is 29-9-1994. This document also is not disclosing the fact about the year 2002. After resignation, the petitioner can again join the company. The document filed by the petitioner required close scrutiny by the complainant during the course of his examination and cross-examination. It was also submitted that apart from this, the petitioner Anil More had executed the Joint Agreement dated 26-10-2002 alongwith respondent Nos. 2 and 3 wherein they have agreed to return the debt or liability of the company by paying the amount to the concerned persons. Photo-copy of the said agreement was filed before the Trial Court. ( 5. ) IT has also been putforth that in reply to the notice sent by the respondent No. 1 to Anil More, the petitioner, through his Counsel on 27-11-2002, he has admitted himself to be the Director of the company. ( 6. ) LEARNED Counsel for the respondent No. 1 has placed reliance on a judgment rendered by the Karnataka High Court passed in Prudential Engineers Builders and Developers v. Kuskoor Bharath Ram [ 2004 (1) DCR 470 ]. In this judgment, the Karnataka High Court has dismissed the petition of the petitioner, who raised the similar point holding that "normally complainant, being a stranger to company or firm, will not be in know of management of internal affairs or arrangements of such company or firm for conduct of its business at time of transaction. It is for the persons receiving notice to make clear who is responsible". Therefore, at the premature stage proceedings can not be quashed. ( 7. It is for the persons receiving notice to make clear who is responsible". Therefore, at the premature stage proceedings can not be quashed. ( 7. ) HAVING heard learned Counsel for the parties and after perusing the entire record, this Court, is of the opinion that the contention of the petitioner for quashing the proceedings against him pending before the Court below can not be accepted on the basis of the document (Form No. 32) which is disclosing about his position in the company of the year 1994. This document is not disclosing his position in the company in the year 2002, when the transaction had taken place. Secondly, the Form No. 32" which is a certified copy filed by the petitioner today and photo-stat copy filed alongwith the petition are also disclosing two dates of holding 24th Annual General Meeting, i. e. , on 29-10-1994 and 29-9-1994. Therefore, the respondent No. 1/complainant if raising doubt at this stage on the document, it can not be rejected as baseless. ( 8. ) IN the judgment of Madras High Court, the learned Single Judge of that Court in the case of S. B. Shankar (supra) has accepted the document (Form No. 32) which was disclosing the fact of relevant year of the transaction and the document was admitted on the strength of the Supreme Court judgment passed in the case of Satish Mehra v. Delhi Administration, (1996) 3 SCC (Cri.) 85, holding that the Court is within its powers to consider materials which the accused may produce even before the commencement of trial for the purpose of deciding whether the accused could be discharged when those documents are not in dispute. First of all in the present case, the document has been disputed by the complainant/respondent No. 1 and secondly, the judgment of Satish Mehra (supra) has been referred to the Larger Bench in a case of State of Orissa v. Devendra Nath Padhi, (2003) 2 SCC 711 for reconsideration in the light of the judgment rendered by the three Judges Bench in Superintendent and Remembrancer of Legal Affair, W. B. v. Anil Kumar Bhunja [ (1999) 4 SCC 274 ]. In this judgment, the Apex Court has taken the view that there is no requirement in law that the Court at the time of framing the charge should either give an opportunity to the accused to produce evidence in defence or consider such evidence, the defence may produce at that stage. ( 9. ) THE complaint filed by the petitioner is triable by Magistrate First Class and the procedure of summons case would apply. There is no provision in the Code of Criminal Procedure of giving opportunity to the accused to file any application for deleting his name or to discharge him from the accusation. The provision under Section 245 (2) of the Code of Criminal Procedure is applicable in a warrant case instituted otherwise than on a police report. In K. Mathew s case reported in AIR 1992 Supreme Court 2206, taking the view that in a summons case also the application under Section 245 (2) is maintainable and at the initial stage, if material available are placed by the accused for his discharge or deleting his name from the case, can be considered, has also been referred to the Larger Bench for consideration in the case of Neelmani v. Bennet Callman [1998 SCC (Cr.) 1551]. ( 10. ) IN the light of the above mentioned legal and factual position, this Court is of the opinion that the order passed by the learned Trial Court on 9-9-2003 rejecting the prayer of the petitioner to delete his name or to discharge him is just and proper and all the controversies can be raised by the parties and may be decided by the Trial Court at the time of passing of final judgment. ( 11. ) IN the result, all these revision petition fail and are accordingly dismissed. ( 12. ) LET a copy each be placed in the records of Cr. Revision Nos. 884/2003 and 885/2003.