Sanatan Financers and Real Estate Pvt. Ltd. v. Peter Faulkner
2013-07-08
R.C.CHAVAN
body2013
DigiLaw.ai
JUDGMENT :- This petition takes exception to the order passed by the learned Additional Sessions Judge, South Goa, Margao whereby the learned Judge rejected Criminal Revision Application No.92/2010 preferred by the petitioners/applicants seeking quashment of process issued against them by the learned JMFC, Quepem in Criminal Case No.14/P/ 2010/A before the learned Magistrate. 2. This petition was admitted by order dated 15/09/2011. A notice was issued to the respondent/original complainant who stays in England. The notice was served on the respondent. 3. I have heard the learned Counsel for the petitioners and also the learned Additional Public Prosecutor. With the help of both, I have gone through the record. Respondent no. 1 had filed a complaint before the learned Magistrate alleging that the petitioners herein had cheated him into payment of considerable sum of money promising that the complainant would be made Director of the Company by name Jovial Holiday Homes Pvt. Ltd. The complainant specifically stated that the accused person had cheated him by promising to make him the Director of the Company and that the complainant entered into an agreement and made payment to the accused on this promise. The learned Magistrate examined that the complainant had ordered issuance of process against the petitioners for offence punishable under Section 420 of the Indian Penal Code. The petitioners filed a revision application before the Sessions Court which application was rejected by the learned Judge by the impugned order. 4. The learned Counsel for the petitioners points out that the petitioners had in fact made the complainant Director of the Company and had produced form no.32 as well as record from office of Registrar of Companies to show that the name of complainant had been included as Director of Company. It appears that in all 4704 shares of the face value of Rs.100/- each have been allotted to the complainant. Though this was pointed out to the learned Additional Sessions Judge the learned Judge held that since the originals were not produced before the trial Court, the revisional Court could not take those documents into consideration. The Court observed that the applicants were free to produce the documents before the trial Court where they had already appeared. The learned Counsel for the petitioners is right in pointing out that the Hon'ble Supreme Court in Harshendra Kumar D. V/s. Rebatilata Koley Etc.
The Court observed that the applicants were free to produce the documents before the trial Court where they had already appeared. The learned Counsel for the petitioners is right in pointing out that the Hon'ble Supreme Court in Harshendra Kumar D. V/s. Rebatilata Koley Etc. reported at 2011 (3) SCC 351 : [2011 ALL MR (Cri) 955 (S.C.)] has already considered the question of documents produced from the office of the Registrar of Companies. In that case, the question was whether the person signing as the Director of the Company was the Director of the Company at the relevant time and it was shown that he was not the Director at the relevant time as he had resigned. The Court had observed that in the criminal case where trial was yet to take place and the matter was at the stage of issuance of summons for taking cognizance, materials relied upon by the accused, which are beyond suspicion or doubt, could be looked into by the High Court in exercise of jurisdiction under Section 482, or, for that matter, even in exercise of revisional jurisdiction under Section 397 of the Code. Since the Sessions Judge exercises revisional jurisdiction along with the High Court the Sessions Judge could have also looked into these documents. In view of the documents which were produced by the petitioners before the Sessions Judge, he ought to have quashed and set aside the process issued by the learned JMFC, Quepem. 5. In view of the foregoing reasons, the petition is allowed. The impugned judgment dated 20/06/2011 passed by the learned Additional Sessions Judge dismissing the revision application is set aside and the process issued by the Magistrate against the petitioners is quashed and set aside. Petition allowed.