ORDER 1. The present petition under section 482 of Cr.P.C. has been preferred seeking quashment of complaint under section 449 of the Companies Act, 2013 in which the Court below has taken cognizance vide order dated 23.5.2022 and had issued arrest warrant against petitioner No. 2 vide order dated 12.7.2023 and had directed for issuance of bailable warrant against the petitioner No.1. 2. The short facts of the case are that petitioner No.1 is an overseas corporate body which had invested in respondent No.1 Company through government FDI scheme during the period between 2000-2001 to 2006-2007. Total sum invested by the petitioner No.1 during the aforesaid period in respondent No.1 Company was Rs.144.18 crores against the permission received from FIPB dated 9.2.2004 whereby investment to the extent of Rs.600 crores was permissible. 3. In August 2012, respondent No.1 Company issued legal notice to one Vivek Gulatee the then Director of petitioner No.1 company inter alia alleging that petitioner No.1 has failed to keep the promise by not investing the entire sum of Rs.600 crores in respondent No.1 /company and other group of companies of peoples group, which has caused financial hardship to the respondent No.1 company and, therefore, compensation of Rs.300 crores was demanded. In September 2012 petitioner No.2 acquired all the shares of petitioner No. 1 Company. 4. In the complaint made by respondent No.1, it is alleged that petitioner Nos. 1 and 2 started filing baseless complaints against respondent No. 1 before various forums as well as before the Ministry of Corporate Affairs. Even complaints were also filed against respondent No. 1 in Police Station Nishatpura, Bhopal. It is further alleged that false statements were given by petitioner No.2 in support of criminal complaint lodged by them before JMFC, Bhopal against the respondent no.1 and baseless proceedings were carried out before the company law board/NCLT by the petitioner No. 1and 2 wherein no interim relief was granted by the company law board. Further in the complaint. it is also alleged that petitioner No. 1 and 2 had made a complaint to the Ministry of Corporate Affairs, Government of India, New Delhi praying for taking steps for getting all the previous transactions of respondent company cancelled by NCLT/Courts, which attracts provisions of section 449 of the Companies Act, 2013, as such complaint and prayer amounts to contempt of Courts and criminal acts of mental and financial loss. On the basis of the aforesaid contentions, respondent No.1 has tried to make out a case under section 449 of Companies Act, 2013 against the petitioners herein. Statements of Director Shri Ashok Khurana, Authorized Signatory of respondent No.1 was recorded wherein he levelled allegations against petitioners which are enumerated herein below :-- (a) Lodged by email a false complaint dated 3.10.2014 against the respondent No. 1 to the Hon’ble Finance Minister. A copy of this complaint dated 3.10.2014 is annexed as C-9 in the complaint and is annexed as Annexure P/14 in this petition. (b) Lodged false complaint dated 11.5.2020 with the Ministry of Corporate Affairs. A copy of complainant dated 11.5.2020 which is annexed as Annexure C-23 of the complaint and as Annexure P/15 in the present petition. (c) Lodged a private complaint dated 1.4.2015 against the respondent No. 1 before JMFC Bhopal. Copy of the complaint is annexed as Annexure C-21 to the complaint, and is already annexed as Annexure P/16 in the present petition. (d) Gave statement in support of the aforesaid complaint before the Court of JMFC which is annexed as Annexure C-3 in the complaint and has annexure P/17in the present petition. (e) The said complaint was dismissed by the JMFC Bhopal vide order dated 27.6.2018 inter alia holding that the matter pertains to dispute between the companies and as such JMFC Court has no jurisdiction over it. A copy of the order is annexed as Annexure C-22 in the complaint as Annexure P/18 in the present petition. (f) Similarly, in the statementit is also alleged that a petition ~ wasfiled before the company law board based on false claims wherein CLB refused to grant interim relief vide order dated 12.5.2017 a copy of which is annexed as Annexure C-19 in the complaint is already annexed as Annexure P/7 in the present petition. (g) Similarly, in the statement it is pointed out that affidavit given by the petitioner no. 2 in the company law board dated 8.1.2015 was false as the affiant was in New Delhi, _ the affidavit was sworn in Mumbai,the affiant was liable to be prosecuted for such false affidavit under section 449 of the Companies Act, 2013. Copy of this affidavit is annexed as Annexure C-20 to the complaint is annexed as Annexure P/19 in the present petition. Copy of this affidavit is annexed as Annexure C-20 to the complaint is annexed as Annexure P/19 in the present petition. Relying on the statement of Ashok Khurana in support of the criminal complaint particularly on annexure C-23, C-19 and C-20 the trial Court took cognizance of the criminal complaint against the petitioner No. 1 and 2, and issued summons for the presence of the petitioners. 5. In the complaint, address of petitioner No. 2 who resides in the United States of America, in alternative was given of Noida (U.P.) as C/o address for the petitioner No. 2. The summons issued to the petitioner since could not be served for more than five dates i.e. 10.8.2022, 20.9.2022, 21.11.2022, 9.1.2023 and 14.3.2023, the service was assumed to have been effected and directions for issuance of bailable warrants were issued. On 12.7.2023 the summons for bailable warrants were received back with the observation of the process server that on the address in Noida one Mr. Ashok Kharbanda is residing who has informed that the petitioner No. 2 resides at USA. On the basis of aforesaid endorsement, the Court assumed that Mr. Kharbanda must have had informed the petitioner about the warrants but still the petitioners have not chosen to appear before the Court therefore arrest warrant was issued vide order dated 12.7.2023. Being aggrieved by the order dated 23.5.2022 taking cognizance of the complaint and also the order dated 14.3.2023 issuing bailable warrants and also the order dated 12.7.2023 issuing arrest warrant to petitioner No.2, the present petition has been filed for qushment of the complaint and warrants. 6. Learned counsel for the petitioners so far as issuance of bailable warrants and arrest warrant were concerned, had argued that arrest warrant was issued in a very mechanical manner and without due application of mind and without satisfying itself as to whether proper service of bailable warrant was affected or not, therefore, the said orders deserve to be quashed. 7. It is further argued that the Court below had committed an error in assuming the service on a person residing abroad without following the guidelines regarding issuance and services of summons on such persons, issued by Legal Cell Government of India, Ministry of Home Affairs, vide No.25016/17/2007 issued under section 105 of the Code of Criminal Procedure, 1973 thus, the Court below had committed error in assuming that Mr. Kharbanda would have informed the petitioner no. 2 about the issuance of arrest warrant and therefore it amounts to proper service which is bad in law. Thus, the very order dated 12.7.2023 by which arrest warrant was issued to petitioner No.2 deserves to be quashed. 8. Learned counsel for the petitioners has further argued that even directions for issuance of bailable warrants against petitioner were bad as the condition precedent for issuance of bailable warrants were not satisfied as there was no proof of service of summons upon the petitioner in ordinary course which is sine-qua- non for issuance of bailable warrants and in the present case the proof of service in the form of registered AD was missing in the Courts record. Thus, there was no occasion for the Court to even issue bailable warrants to the petitioner. 9. Learned counsel for the petitioner has further argued that the Court committed error in taking cognizance of complaint under section 449 of the Companies Act, 2013 for events while had taken place during 2000-2012 by applying retrospective application of section 449 of the Act which is not permissible. Further the Court committed error in taking cognizance of the complaint under section 449 of Companies Act without first ascertaining as to whether from the averments in the complaint itself any such offence is made out or not, as the entire complaint was vaguely worded with bald averments that false cases have been filed by the petitioners against respondent No.1 without disclosing nature of falsity in those cases. 10. Learned counsel for the petitioner further argued that in the order dated 23.5.20222 by which cognizance was taken by the Court, it is observed that in the form of Annexure C-19 and C-20 petitioners have given false affidavit. Notably C-19 is not an affidavit but an order of CLB dated 12.5.2016 and C-20 is an affidavit submitted by the petitioner No. 2 before CLB wherein it is sworn by the petitioner No. 2 that he was in India from 3.1.2015 to 8.1.2015 during which time he had sworn the affidavit in support of the company petition. The Company Petition as well as Affidavit in support of petition were under the Companies Act, 1956 and Companies (Court) Rules, 1959. The Company Petition as well as Affidavit in support of petition were under the Companies Act, 1956 and Companies (Court) Rules, 1959. Neither, in the complaint, nor in the statement in support of the complaint it is averred which part of the affidavit or assertion of fact made therein is false, thus, the very cognizance taken by Court below is without due application of mind, therefore, deserves to be quashed. 11. It has also been argued that section 449 of Companies Act makes it an offence if any person gives false evidence on oath or otherwise under this act or in a matter arising under this act. A plain reading of section 449 would indicate that it makes it an offence to tender false statement on oath wherever such statement is required to be made under the Act or such a statement is made in any matter arising under the act, which means the alleged false statement has to be relatable to a proceeding/matter arising under the act and an independent complaint made to the police or a private complaint made to the Court under IPC is not and cannot be equated with a statement made in a matter arising out of this Court, thus, from a bare reading of the complaint, it becomes clear that the complaints made by the petitioner against the respondents under IPC are not covered under section 449 and therefore, on the face of it, there was no reason for the Court to had taken cognizance of the complaint. 12. It was further argued that the present complaint is nothing but an instrument to harass the petitioner who is an oversea resident and there is a definite ulterior motive with the respondents to lodge the present complaint against the petitioner and is being used as a means of arm twisting for settling the dispute between them. 13. 12. It was further argued that the present complaint is nothing but an instrument to harass the petitioner who is an oversea resident and there is a definite ulterior motive with the respondents to lodge the present complaint against the petitioner and is being used as a means of arm twisting for settling the dispute between them. 13. A rejoinder has been filed in the matter on behalf of petitioners wherein a new ground has been raised that under section 439 sub-section (2) of the Companies Act, 2013 it is only Registrar, a share-holder or a member of the Company or of a person authorised by the Central Government in that behalf who can file written complaint and upon filing of such a complaint, cognizance by the Court can be taken but herein-case as the complaint is not made by any of the persons named therein, the very complaint is bad in law. On the basis of the aforesaid arguments as well as contentions made in the rejoinder, learned counsel for the petitioners has submitted the present petition be allowed and the cognizance taken by the Court below vide order dated 23.05.2022 be quashed and the orders issuing bailable warrants and later on arrest warrant be also quashed. To bolster his submissions, learned counsel for the petitioners has relied upon the order passed by the coordinate Bench at Jabalpur in the case of Shri Ishtiaq Hussain Siddiqui v. Registrar, Companies, Ministry of Corporate Affairs (M.Cr.C. No.6919 of 2024) on 20th December, 2024. 14. On the other hand, learned Senior Counsel for the respondent No.1 Shri Vivek Khedkar had argued that from the very provisions of section 449 of the Companies Act, 2013, it is clear that if any person gives intentional false evidence, then the provisions of section 449 would be applicable. 15. 14. On the other hand, learned Senior Counsel for the respondent No.1 Shri Vivek Khedkar had argued that from the very provisions of section 449 of the Companies Act, 2013, it is clear that if any person gives intentional false evidence, then the provisions of section 449 would be applicable. 15. Learned counsel for the respondent No.1 while placing reliance on the provisions of section 439(2) of the Companies Act, 2013 has argued that the aforesaid provisions are confined to an offence which is alleged to have been committed by the company or any officer thereof but herein-case offence is not alleged to have been committed by the Company, which is herein-case would be respondent No.1 itself, rather the offence is alleged to have been committed by the share-holder of the company i.e. petitioner No.2, therefore, the provisions of section 439 of the Companies Act, 2013 would not be applicable and a complaint in writing of the Registrar, a shareholder or a member of the company, or of a person authorised by the Central Government in that behalf is not required and the complaint made by respondent No.1 cannot be thrown out on this ground and therefore, cognizance taken by the Court below cannot be said to be bad in law. 16. 16. Learned counsel for the respondent No.1 further criticizing the arguments raised on behalf of the petitioners submitted that the arguments under section 439, a company cannot file a private complaint against share-holder or against any person in the light of the provisions of section 439(2) and in that regard has placed reliance upon section 448 which relates to punishment for false statement is wholly misconceived as the provisions of section 448 is to be taken note of in conjugation with section 447, as in section 448, it has been categorically mentioned that such type of person is liable under section 447 which is in respect to punishment of fraud and the aforesaid section is entirely different; meaning thereby the provision of section 439 would be applicable upto the provision of section 447 only not beyond that because the scope of section 447 and 448 would be as per the provision of section 439 and sections 439, 447 and 448 should read together wherein any complaint can be filed against a company or any officer thereof only by way of complaint in writing of the Registrar, a shareholder or a member of the company, or of a person authorised by the Central Government in that behalf and not otherwise whereas section 449 speaks of the eventuality where any person intentionally gives false evidence and as both the sections have different spheres and field, it can not overlap each other and if the provisions of section 439 is made applicable to 449, then there was no purpose for creating a new section 449 which is corresponding to old section 629, thus, in the above facts and circumstances, the ground with regard to maintainability of present complaint at the hands of respondent No.1 is wholly misconceived and therefore, the cognizance taken by learned trial Court of the complaint made by respondent No.1 cannot be faulted with. 17. 17. With regard to another contention raised by petitioner that no ground as mentioned in section 449 is made out to attract the provision is concerned, learned counsel has argued that the aforesaid aspect can only be gone into by learned trial Court whether the provision of section 449 are attracted or not and at the stage of seeking quashment of the order of cognizance, this aspect cannot be gone into as the same requires evidence and this Court in the proceedings under section 482 of Cr.P.C. can not conduct a mini trial. 18. Learned counsel has also argued that the Hon'ble apex Court in catena of decisions has laid down the law that while exercising the powers under section 482 of Cr.P.C., the Court should not initiate a mini-trial because only after recording a finding of prima facie case, cognizance is taken which cannot be interfered with lightly. To bolster his submissions, reliance was placed on the decision rendered by the Hon'ble apex Court in the case of R.Kalyani v. Janak C. Mehta reported in 2009 (1) SCC 516 and the judgment rendered in the case of Central Bureau of Investigation v. Aryan Singh Etc. passed in Criminal Appeal No.1025-1026 of 2023 on 10.4.2023. 19. Lastly, learned counsel has argued that one similar petition under section 482 of Cr.P.C. was filed at the instance of petitioner which was dismissed by this Court and affirmed by the Hon'ble apex Court in respect of offence registered under section 447 against the Company. At the instance of present petitioner, another matter was transferred to Bhopal on the application given by Enforcement Directorate which since fell within the jurisdiction of Principal Seat Jabalpur was challenged by way of filing the petition under section 482 Cr.P.C. which was allowed and the complaint under section 447 of the Companies Act, 2013 was quashed but since the said quashment was on the basis of some altogether different grounds that too under section 447 of the Companies Act, 2013 which as argued earlier had different consideration, therefore, has no bearing with the present matter. 20. 20. It has further been argued that since summon issued to the petitioner No.2 was duly served and since he was not appearing before the Court, the Court was left with no other choice but to issue bailable warrants on earlier occasion and later on, when even after service of bailable warrants, petitioner No.2 did not appear, nonbailable warrant of arrest was issued against him which cannot be faulted with. Thus, it is argued that the present petition has no sum and substance and the same is liable to be dismissed. 21. Heard counsel for the parties and perused the record. 22. The basic and foremost question which arises for consideration before this Court is that whether in the light of subsection 2 of section 439 of the Companies Act, 2013, the Court below could had taken cognizance of the offence punishable under section 449 of the Companies Act, 2013 or not ? 23. In the aforesaid regard, the provisions of section 439 of the Companies Act, 2013 are required to be analyzed. For reference, section 439 is quoted herein-below :-- “439. Offences to be non-cognizable.— (1) Notwithstanding anything in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under this Act except the offences referred to in sub-section (6) of section 212 shall be deemed to be non-cognizable within the meaning of the said Code. (2) No Court shall take cognizance of any offence under this Act which is alleged to have been committed by any company or any officer thereof, except on the complaint in writing of the Registrar, a shareholder or a member of the company, or of a person authorised by the Central Government in that behalf : Provided that the Court may take cognizance of offences relating to issue and transfer of securities and non-payment of dividend, on a complaint in writing, by a person authorised by the Securities and Exchange Board of India: Provided further that nothing in this subsection shall apply to a prosecution by a company of any of its officers. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),where the complainant under sub-section (2) is the Registrar or a person authorised by the Central Government, the presence of such officer before the Court trying the offences shall not be necessary unless the Court requires his personal attendance at the trial. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),where the complainant under sub-section (2) is the Registrar or a person authorised by the Central Government, the presence of such officer before the Court trying the offences shall not be necessary unless the Court requires his personal attendance at the trial. (4) The provisions of sub-section (2) shall not apply to any action taken by the liquidator of a company in respect of any offence alleged to have been committed in respect of any of the matters in Chapter XX or in any other provision of this Act relating to winding up of companies. Explanation.—The liquidator of a company shall not be deemed to be an officer of the company within the meaning of sub-section (2).” 24. Sub-section 1 of section 439 starts with a non obstante clause "Notwithstanding anything contained in the Code of Criminal Procedure, 1973" and deals with offences except the offence referred to in sub-section (6) of section 212 deemed to be non-cognizable within the meaning of the said code. Sub-section (2) deals with the offences which is alleged to have been committed by any company or any officer thereof on which cognizance can be taken by the Court, but with a rider that it could be taken only on the complaint in writing of the Registrar, a shareholder or a member of the company, or of a person authorised by the Central Government in that behalf. Further second proviso stipulates that the said sub-section shall not apply to a prosecution by the Company on any of its officer. 25. The aforesaid second proviso thus provides that a Company can prosecute any of its officers and when any officer of the Company is to be prosecuted, then the provision of section 439 would not be applicable, but whether it would be a same when a Company intends to prosecute its share-holder, whether in such case also the provision of section 439 would be applicable or not is a question in the present case. 26. 26. Sub-section (2) and its first proviso deals with the offences what are committed by the Company or any of its officer thereof and when such a complaint is to be made, it is to be in writing by the person specified therein, but herein-case, it is not an offence which is committed by the Company rather it is an offence committed by one of its share-holder as alleged by the Company. Thus, when second proviso of sub-section (2) of section 439 provides that when a Company applies for prosecution of its officer, the provisions of section 439 would not be applicable, according to this Court, the same analogy would be applicable herein and the offence committed by the share-holder of the Company can very well be prosecuted by the Company by filing a complaint before the Competent Court and there would be no bar as provided under sub-section (2) of section 439. Accordingly, the aforesaid contention raised by the counsel for the petitioner has no force and is discarded. 27. So far as applicability of provisions of section 449 of the Companies Act, 2013 to the complaint by the respondent No.1 is concerned, whether the contents of the complaint attracts the provisions of the aforesaid section is a matter of evidence which can only be ascertained by leading evidence before the Court below. Whether the contents of the complaint are meted out is not required to be considered at this stage and the same would be considered in trial. At this stage, what is required to be considered, is prima facie case which warranted the accused to be tried. Thus, this Court finds that learned trial Court has not committed any illegality or perversity in taking cognizance vide order dated 23.5.2022. Thus, to this extent the petition has no force. 28. So far as issuance of arrest warrant against the petitioner No.2 is concerned, admittedly the petitioner No.2 at the time of service of summons was residing at United States of America and there is no material on record that the person upon whom the summons were served i.e. Mr. Ashok Kharbanda had communicated the same to the petitioner No.2 and he was having knowledge of the summons as well as bailable warrants, thus, when this fact is not established, the very order by which arrest warrant was issued to petitioner No.2 cannot be sustained. Ashok Kharbanda had communicated the same to the petitioner No.2 and he was having knowledge of the summons as well as bailable warrants, thus, when this fact is not established, the very order by which arrest warrant was issued to petitioner No.2 cannot be sustained. Accordingly, the order dated 12.7.2023 is hereby quashed. 29. The judgment rendered by the coordinate Bench at Jabalpur in the case of Shri Ishtiaq Hussain Siddiqui (supra), cited by the petitioner being based on different facts is not applicable in the present case. 30. Since the proceedings pending before the trial Court was stayed by this Court vide order dated 20.9.2023 and as such the proceedings before the trial Court are standstill, the parties herein are directed to appear before the trial Court on 25.6.2025 and on such further dates as may be fixed by the trial Court. Learned trial Court is further directed to proceed in the matter expeditiously. 31. Accordingly, the petition stands partly allowed and disposed of.