TaxTMI 
TaxTMI 
TaxTMI 
2019 (1) TMI 1255
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....ccused) as also by M/s. Glory Apartment Pvt. Ltd. (referred to as the second accused), invoking the revisional jurisdiction (by Crl.Rev. Petition Nos.62/2012 and 70/2012). Both the petitions were allowed by order dated 08.07.2013, setting aside the summoning order dated 02.06.2012 but, remanding the complaint case for reconsideration of the evidence and to pass a speaking order thereupon. The said revisional order was challenged before this court, inter alia, by Crl.MC. 4319/2013 and 4321/2013 which was permitted to be withdrawn and dismissed accordingly, by order dated 15.05.2014, directions being reiterated that the metropolitan magistrate was expected to pass a speaking order. 3. After the remand by the revisional court, the ACMM held further inquiry under Sections 200 and 202 of the Code of Criminal Procedure, 1973 (Cr.P.C.) and permitted, on request being made, additional evidence to be adduced. 4. Three witnesses were examined at the pre-summoning inquiry including the first petitioner (co-complainant) seeking support from the evidence of two others, viz., Ms. Balika Sharma, Company Secretary (CW-2) and Sub-Inspector Rakesh Yadav (CW-3). The ACMM, by order dated 15.09.2015,....
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.... submitting that there has been a serious miscarriage of justice on account of an uncalled intervention by the revisional court in a manner which was not permissible in law, impressions having been gathered from material which was extraneous and tentative conclusions drawn therefrom having resulted in findings on facts being returned, the circumspection within which the revisional court was to be exercised having been forgotten. 7. The learned counsel for the first respondent in these petitions vigorously opposed the prayer of the petitioners submitting that the revisional court has made a very detailed scrutiny of the background facts and has taken a balanced view, the parties being involved in litigation of various kind including certain complaint cases or FIRs instituted at the instance of the respondents against the petitioners, there being a case made out in such other proceedings about misappropriation of the property of the company in whose name the complaint has been filed, it also being his submission that the Board Resolution on which reliance is placed, is a fabricated document. 8. Both sides have been heard at length and with the assistance of the learned counsel the ....
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....remises over which he, thus, acquired dominion also containing the official records and other moveable property of the company, it including the computer, printer, furniture, fixtures, etc. It has been the case of the petitioner that in spite of demand to return, the respondent Kamlesh Kumar Goel has continued to illegally and unlawfully occupy the property of the company, retaining its moveable properties as well, without any valid, proper or lawful justification. 11. The petitioners (the complainants) had led evidence to substantiate their case in the pre-summoning inquiry not only to bring on record supportive material to confirm that the property in question is owned by the complainant company and that dominion over it and the moveable property lying therein had come in the hands of the persons sought to be prosecuted on account of the first accused being the erstwhile director of the complainant company, as indeed authorization for filing the complaint. The ACMM, however, apparently by way of abundant caution had called for a confirmation from the ROC. A report styled as "written statement on behalf of ROC" was submitted by the Assistant Registrar of Companies, NCT of Delhi a....
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....namely Sh. Yogesh Chandra Goel, Sh. Vishal Goel and Sh. Ravi Kumar Lal. Therefore, as per section 252 of the Companies Act, 1956 a limited company is required to have at least 3 directors on the Board. But from the above complaint it appears that after the resignation of Sh. Ravi Kumar Lal in 2003 and thereafter filing the requirement of Section 252 of the Companies Act, 1956. In view of the above, explanation was sought from the Company H as to how the compliance of Section 303 (2) for non-filing of Form 32 for resignation of Mr. Ravi Kumar Lal has been made and also to explain as to how the compliance of Section 252 of Companies Act, 1956 has been made. Though, the document of the defence cannot be seen at this stage in view of the judgment State of Orissa vs. Debendra Nath Padhi (2005) 1 SCC 568, but at the same time, the said document is a public document issued by public authority and it goes into the root of the controversy and during the course of arguments, the authenticity of the said document had not been rebutted by Ld. Counsel for the respondent. In any case, Ld. Counsel for the respondent has himself also filed number of documents alongwith his reply to the applicatio....
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....d resolution (s) and to do all the ancillary business for effective running of the company. For that a limited Company incorporated under the Companies Act 1956, ought to have three directors for a minimum without which it is not competent to pass any resolution or to do any business, as same would be violative of the provisions of the Companies Act. Therefore, the board resolution dated 02.04.2012 purportedly passed by the Board of Directors of the Company H authorizing the respondent to file the present complaint before Ld. ACMM u/s 630 of the Companies Act with regard to premises No. 203-204, A.J. Chambers, 4th Street, Naiwala, Karol Bagh, New Delhi appears to be invalid and non est". 14. This court agrees that the submissions of the petitioners that the approach of the revisional court was wholly erroneous and in breach of the circumspection within which it was expected to subject the material on record to scrutiny. The communication dated 04.08.2015, at best, is one whereby the explanation of the complainant company had been solicited by the ROC. It cannot be treated as the whole or complete truth of the matter. Whether or not the resignation tendered by Ravi Kumar Lal on 02.....
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....sh Kumar Goel, being a director of the company, would be covered under the description "officer" as used in Section 630 of the Companies Act, 1956 and there is no escape from his accountability to restore and return the property of the company over which he may have had acquired dominion during the period he was associated with it. 19. For the above reasons, the impugned order of the revisional court is found to be wholly erroneous and, thus, must be set aside. At the same time, this court also finds substance in the submissions of the petitioners that the order of summoning passed by the ACMM was also deficient in that in spite of there being sufficient material presented in the pre-summoning inquiry, the summoning order does not cover criminal prosecution for offences of criminal breach of trust or criminal trespass. 20. There is no inhibition in law that if the company seeks prosecution for the offence under Section 630 of the Companies Act, 1956, it cannot invoke the penal provisions under the general law, as provided in the Indian Penal Code, 1860. There is clear evidence adduced in the pre-summoning inquiry indicating that Kamlesh Kumar Goel (the first accused) had acquired....