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2008 DIGILAW 199 (PAT)

Subhash Gahlot v. State Of Bihar

2008-01-30

MIHIR KUMAR JHA

body2008
Judgment 1. Heard learned counsel for the petitioner and the State. 2. This application has been filed for quashing of the order dated 14.2.2001 whereby and whereunder the Court below having taken cognizance under Sections 406 and 120-B of the Indian Penal Code has issued summons against the petitioner to face trial in Complaint case No. 145 (C) of 2001/ Trial No. 1871 of 2005. 3. Counsel for the petitioner while assailing the impugned order has submitted that the petitioner was a Director of the Company against whom there is vague and omnibus allegation as was also made against the other directors of some company on the basis of some complaint petitions and as in their case, this Court has already quashed the order taking cognizance the same approach should be adopted in the case of the petitioner. He has further submitted that this Court should take a consistent view in the same proceeding inasmuch as when this Court in Cri. Misc. No. 8518/03, Cri. Misc. No. 8554/03, Cri. Misc. No. 8629/03 and Cri. Misc. No. 8630/03 has quashed the proceeding against the other Directors by a judgment dated 4th August, .2004 as contained in annexure 7, the same should be also done in the case of the petitioner who is also a Director of the Company. In this context he has relied on paragraphs 15, 16 and 17 of the said judgment which read as follows; "15. Having considered the rival submissions, this Court holds that the prosecution of the petitioners and the order of cognizance cannot be sustained. The petitioners not being Directors of the Company on the date of the cause of action arose, there being no specific allegation in the complaint against them to constitute prima facie case and the allegation being omnibus in nature, and that the matter is pending in the liquidation proceedings in the Delhi High Court, no offence can be said to have been made out against the petitioners. No useful purpose would be served by subjecting them to harassment of protected litigation at a far off place at Patna when the interest of the complainant appears to be adequately protected by order of the Company Law Board and the pendency of the liquidation proceeding in Delhi High Court. 16. No useful purpose would be served by subjecting them to harassment of protected litigation at a far off place at Patna when the interest of the complainant appears to be adequately protected by order of the Company Law Board and the pendency of the liquidation proceeding in Delhi High Court. 16. It would be essential for this Court to take into consideration the fact that in view of the pendency of the liquidation proceeding before the High Court at Delhi, a subsequent development, it could not be contended now that the complainant had been wrongfully deprived. To hold otherwise at this stage can only be at the risk of contravention of disobedience of the orders of the Company Law Board and the liquidation proceeding before the Delhi High Court. This Court would not countenance such action by holding, despite the aforesaid developments, that the criminal prosecution against the present petitioners would continue to be maintainable notwithstanding the aforesaid orders. 17. Since the order of cognizance and the entire proceedings are found to be not sustainable, there is no need to pass separate orders on those applications of the petitioners preferred against the rejection of their applications under Section 245 Cr.P.C. 4. I am however afraid, I can not take the same view in the case of the petitioner for the simple reason that the case of the other directors petitioners namely K.K. Leekha and Mr. M.L. Chawala stands altogether on a different footing as already noted in the operative portion of the judgment of this Court (annexure 7) wherein it has been recorded that Mr. Leekha and Mr. Chawala were ap- pointed as Honorary Directors and resigned on 21.1.1998 and 19.1.1998 respectively and their resignation was accepted by the Company Law Board on 10.2.1998 and consequently Form 32 in case of their was also issued on 26.2.1998 by Registrar of the Company. The learned Judge in fact on that basis had also noted down that on 24.3.1999 a paper publication was also made by the petitioner K.K. Leekha in English Daily Pioneer and therefore, this Court in their case had held that as the cause of action of the complainant arose on 15.4.1999, October, 2000 and November, 2000 on a date in which aforementioned two Directors were not in-office on account of their acceptance of resignation from Board of Directors they could not have been held criminally liable. 5. 5. On the other hand from paragraph 33 read with paragraph 34 of the present quashing application of the petitioner, it is clear that the petitioner came to be nominated as a Director of the Company in the year 1986 and continued for a period of 15 years and ultimately ceased to be a Director of the Company only with effect from 30.3.2001 where as the alleged offence had been committed in between May, 1999 to November, 2000. Consequently the case of the petitioner is absolutely distinguishable as against the aforesaid Mr. Leekha and Mr. Chawala. 6. The counsel for the petitioner next contended that as a matter of fact if it is held that in capacity of Director he was liable, such liability of being a sum of Rs. 4,42,617.69 ps has to be apportioned among eight to nine persons and therefore, the petitioner alone can not be made liable for payment of such amount. This Court at this stage is not considering as with regard to his extent of complicity or share of his liability in a criminal case. As a matter of fact, on the last occasion when this case was taken up it was voluntarily offered on behalf of the petitioner himself that he will make endeavours to settle the dispute by making payment of the admitted dues to the complainant opposite party No. 2. Such indulgence was therefore, given on the personal initiative of the petitioner. Now the petitioner does not want to pay the amount in question i.e. 4,42,617.69 ps. 7. Be that as it may, this Court in exercise of power under Section 482 Cr.P.C. in fact does not find any ground or material to quash entire proceedings including impugned order taking cognizance. Consequently there being no merit in this application, it is accordingly, dismissed.