TaxTMI 
TaxTMI 
TaxTMI 
2011 (7) TMI 1008
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.... contentions raised by the parties it would be pertinent to bring on record that the parties before us have reached the settlement and have withdrawn the claim and rival claims so raised before the company court. 3. Since the monitory claim of the petitioning creditor is satisfied, the appellant-company had assailed such portion of an order and judgment whereby and whereunder the company court directed the Registrar, original side to lodge a complaint before the competent authority against the appellant-company for being tried before the Magistrate for making a false defence against the claim of the petitioning creditor and also the imposition of onerous cost by the company court. 4. The matter appears to have gained some interest because of the defence set up by the appellant-company in reply to a statutory notice sent by the petitioning creditor under sections 433 and 434 of the Companies Act, 1956. 5. The factual backdrop which leads to filing the company petition for winding up by the petitioning creditor is that the petitioning creditor supplied gunny jute bags to the appellant-company and raised invoices for the price which was accepted by the appellant-company. According ....
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....n falsity. 11. He strenuously argues that the company court has proceeded on a mere presumption and assumption without recording its positive finding of fabrication, manufacture and creation of a document in order to deceive not only the other party but also the court. He relies upon several judgments of the apex court in support of his contention that the court not only should hold that the offence is committed by a party but should also record its finding as to the expediency in the interest of justice to start prosecution upon a reasonable foundation of likelihood of conviction, namely, Iqbal Singh Marwah v. Meenakshi Marwah [2005] 4 SCC 370, Pritish v. State of Maharashtra [2002] 1 SCC 253, B.K. Gupta v. Damodar H. Bajaj [2001] 9 SCC 742, Sachida Nand Singh v. State of Bihar [1998] 2 SCC 493, K.T.M.S. Mohd. v. Union of India AIR 1992 SC 1831, Chajoo Ram v. Radhey Shyam AIR 1971 SC 1367 and two Division Bench judgments in the case of Jadu Nandan Singh v. Emperor [1910] ILR 37 Cal. 250 and Keramat Ali v. Emperor AIR 1928 Cal 862; (ILR 55 Cal. 1312). 12. Mr. Susanta Dutta, the learned advocate appearing for the petitioning creditor was also unanimous with the submission of the a....
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....onfirmed the balance, the appellant-company could not have raised any dispute as to the difference in rates of the price of the goods so sold and delivered. It is further recorded that there is no explanation forthcoming as to why such objection was raised after the confirmation of the balance. 18. Such defence cannot be said to be absolutely irrational and/or illegal and leads to the conviction without any reasonable doubt. The defence may be untenable or may not appeal to the court as the company court or a civil court proceeds on a preponderance of an evidence unless an evidence so tendered appears to the court to be false to the knowledge of the person adducing it. 19. The apex court in the case of Pritish (supra ), held that before directing an enquiry to be made for an offence committed, the court should form an opinion about commission of such offence on preliminary enquiry and the court was pre-satisfied that on the basis of the fact situation it is expedient in the interest of justice that the offence should further be probed into. 20. In the case of B.K. Gupta (supra), the apex court was considering the false statement made on oath in a writ proceeding which the depone....
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.... that the prosecution for forgery should be sanctioned by the courts in those cases where it appears to the court that the same has been made deliberately and consciously and there is reasonable possibility of conviction. 23. The law is settled as has been laid down by the five-judge Bench of the Supreme Court in the case of Iqbal Singh Marwah (supra), in following words (page 386) : "23. In view of the language used in section 340 of the Code of Criminal Procedure, 1973, the court is not bound to make a complaint regarding commission of an offence referred to in section 195(1)(b), as the section is conditioned by the words 'court is of opinion that it is expedient in the interest of justice'. This shows that such a course will be adopted only if the interest of justice required and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery ....