TaxTMI 
TaxTMI 
2015 (11) TMI 497
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.... the applicant towards the petitioner. It is stated that Quinn Logistics Sweden AB (in bankruptcy) (QLS) which is holding company of the applicant filed an application for recalling winding up order and this court recalled the said winding up order on August 13, 2013. It is stated that Sri Samson Arthur and Sri N. Chandrasekhar Rao have wrongfully admitted liability of the applicant towards the petitioner and the applicant contends that no dues are payable by it to the petitioner who colluded with Sri Samson Arthur and Sri N. Chandrasekhar Rao and initiated proceedings against the applicant on the basis of false claims. The applicant, among other things, stated that on June 13, 2012, an affidavit has been purportedly filed in the company petition on behalf of the applicant by Sri N. Chandrasekhar Rao wherein he stated that the applicant-company does not have any assets at all and is not operating for the last one and half years since January 2010, but the audit report, which has been accepted by Sri N. Chandrasekhar Rao, states that the applicant-company has sufficient assets in terms of monies, i.e., INR 62,91,40,790 owned to it by Mack Soft and acknowledged in the audit report. I....
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....n-payment is the continued financial crunch that the respondent-company as is presently facing and requested the petitioner to bear with the company in view of ongoing financial crunch and has been trying to clear the outstanding dues of the petitioner by trying to arrange funds from some other source. The applicant-company further stated that Sri Samson Arthur stated the above facts falsely to his knowledge in contrast to the actual financial position of the applicant-company. It is further stated that the averments made by Sri Samson Arthur in the counter affidavit are in contrast to the averments made by him in the caveat filed by him on February 10, 2012, wherein he claimed that the dues of the petitioner has been paid and the contradictory statements made by him in the affidavit is an abuse of process of the court. Even as per the audit report, the applicant-company has lent monies to a tune of INR 62,91,40,970 to its subsidiary, Mack Soft. 4. The petitioner further submits that the above facts clearly demonstrate that the proceedings in the company petition are collusive one and Sri Samson Arthur and Sri N. Chandrasekhar Rao have deliberately filed false affidavits before ....
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....uly 6, 2011, i.e., the date on which he was allegedly appointed as the bankruptcy receiver of Quinn Logistics, Sweden, and the agreement between the petitioner and the applicant was signed on May 4, 2011, i.e., more than two months prior to the alleged appointment of the bankruptcy receiver. It is also stated that there is no averment in the application that the said agreement is sham or has been backdated and that no payment was made by the applicant-company to the petitioner. The counter affidavit filed by Samson Arthur honestly mentioned the financial difficulties faced by the applicant and that the veracity of Samson Arthur regarding the financial difficulties faced by the applicant-company and the consequent inability to pay the dues to the petitioner have been duly established by the bank statements annexed along with the affidavit filed by Sri N. Chandrasekhar Rao filed on June 13, 2012. As per the documents annexed, the applicant has two bank accounts, viz., account No. 00210350003538 with the HDFC Bank and account No. 081-108896-001 with the HSBC Bank and while there was an amount of Rs. 9,99,150 in the HDFC Bank, an amount of Rs. 2,772 was lying in HSBC account and that t....
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.... of Mack Soft and the dispute relating to the above transactions are pending before the District Court, Ranga Reddy in O. S. Nos. 21 of 2012 and 1303 of 2013. It is further stated that as per the audit report, a balance loan of INR 62,91,40,790 is pending on the books of Mack Soft as payable to the applicant and this liability towards the applicant-company is also reflected in the balance-sheet of Mack Soft dated March 31, 2012. The respondents have denied that in accordance with the audit report, the applicant has sufficient assets in terms of monies owed to it by Mack Soft and acknowledged in the audit report. The respondents denied that they have falsely admitted liability towards the petitioner and collusively obtained a winding up order against the applicant-company. The respondents further stated that the applicant is now under the management of Sri Robert Dix, Sri Paul Mc.Gowan. Sri Paul Mc. Gowan and Sri Bryan O'Neil, who were unanimously appointed as directors at the extraordinary general meeting held on February 18, 2012, subsequently confirmed at extraordinary general meeting of the applicant convened on July 29, 2013, wherein the shareholders have also conferred aut....
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....ke recourse to section 340(1) of the Code of Criminal Procedure in cases in which they have failed to take action under section 344 of the Code of Criminal Procedure. He further submits that in section 344 of the Cr.P.C., only the Court of Session and the Magistrate of the First Class are mentioned unlike section 340 of the Cr.P.C. as such, the application under section 340 of the Code of Criminal Procedure is maintainable. He further submits that even as per sub-section (3) of section 344 of the Cr.P.C., the power of court to make a complaint under section 340 of the Cr.P.C. is not affected. Section 344 of the Cr.P.C. empowers the Court of Session and the Magistrate of First Class for trial of an offence for giving any false evidence in summary procedure. In the present case, since false evidence was placed before the court, section 340 of the Cr.P.C. can be invoked for registering a complaint against non-applicants Nos. 1 and 2. He further submits that section 340 of the Cr.P.C. is an independent section and that it is always not necessary that the court should render the finding at the time of final judgment, but later also, the court can invoke section 340(1) of the Cr.P.C. He ....
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....e relevant to refer relevant provisions of the Indian Penal Code as well as the Code of Criminal Procedure, which are extracted hereunder : "191. Giving false evidence. - Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence. 193. Punishment for false evidence. - Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine ; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. 209. Dishonestly making false claim in court. - Whoever fraudulently or dishonestly, or with intent to injure or annoy any person, makes in ....
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....me of delivery of any judgment or final order disposing of any judicial proceeding, a Court of Session or Magistrate of the first class expresses an opinion to the effect that any witness appearing in such proceeding had knowingly or wilfully given false evidence or had fabricated false evidence with the intention that such evidence should be used in such proceeding, it or he may, if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating, as the case may be, false evidence, take cognizance of the offence and may, after giving the offender a reasonable opportunity of showing cause why he should not be punished for such offence, try such offender summarily and sentence him to imprisonment for a term which may extend to three months, or to fine which may extend to five hundred rupees, or with both. (2) In every such case the court shall follow, as nearly as may be practicable, the procedure prescribed for summary trials. (3) Nothing in this section shall affect the power of the court to make a complaint under section 340 for the offence, where it does not choose to proceed under this section." ....
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.... power conferred under section 344 of the Cr.P.C. 11. Only enquiry contemplated under section 340(1) of the Cr.P.C., irrespective of the result of the main case, is whether a prima facie case is made out which, if rebutted, may have a reasonable likelihood to establish the specified offence and whether it is also expedient in the interest of justice to take such action (see K. Karunakaran (supra). The purpose of enacting section 340(1) of the Cr.P.C., appears to be further arm the court with a weapon to deal with more flagrant cases and not to take away the weapon already in its possession. The object of the Legislature underlying enactment of section 340(1) of the Cr.P.C., is that the evil of perjury and fabrication of evidence has to be eradicated and can be better achieved now as it is open to courts to take recourse to section 340(1) (corresponding to section 476 of the Old Code) in cases in which they have failed to take action under section 344 of the Cr.P.C. (see Mahila Vinod Kumari (supra). Hence, the present application is maintainable under section 340(1) of the Cr.P.C. 12. In the present case, non-applicant No. 1 Sri N. Chandrasekhar Rao stated in his affidavit dat....
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....e amount due from Mack Soft to the applicant-company is also admitted in the counter to the present application. The company court, while appointing provisional liquidator in C. P. No. 30 of 2012 filed by the petitioner held that the court passed the order for appointing of provisional liquidator since the counter affidavit filed by Sri Samson Arthur is vague and has not chosen to give details of its assets nor has it assured the court that the assets would not be taken away beyond the jurisdiction of the court. Admittedly, caveat petition is filed by the applicant-company on February 10, 2012 and winding up petition in C. P. No. 30 of 2012 is filed on February 14, 2012, by the petitioner and winding up order is passed on July 6, 2012. The sequence of events leading to winding up order in the company petition in quick succession would also give rise to a presumption that non-applicants Nos. 1 and 2 have not placed correct facts before the court before winding up order is passed. The respondents being legally bound by on oath to state the truth in their affidavits in C. P. No. 30 of 2012 is prima facie held to have made a false statement which constitutes an offence of giving false ....