TaxTMI 
TaxTMI 
2021 (1) TMI 1114
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....ect of the offence of the 2nd to 7th Respondents and further direct the 1st Respondent to act on the same as per law so that the said offences are expeditiously prosecuted before the competent Court as per law; b) and in the alternative issue a writ of mandamus directing the 1st Respondent to register the offence set out in the information dated 28.01.2020 of the Petitioner in respect of the offences of the 2nd to 7th Respondents and further direct the 1st Respondent to act on the same as per law so that the said offences are expeditiously prosecuted before the competent Court as per law; c) Issue such other writs, pass such other orders and grant such other reliefs as deemed fit in the circumstances of the case in the interest of justice and equity. 2. FACTS: 2.1. The petitioner claims to be a not for profit company registered under Section 8 of the Companies Act 2013 ('Act of 2013' for short) with the object of working in the areas of governance and in transparency. 2.2. It is contended that the petition arises in respect of the order dated 28.07.2020 passed by the 41st ACMM, Bangalore dismissing the private complaint No.7111/2020 filed by t....
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.... for offences under Section 45IA r/w 58B(4A) and conduct investigation thereto. 3. Upon filing of the above petition, notice was issued to the respondents, who entered appearance. Though the respondents have not filed any objections to the petition, both the set of respondents raised certain preliminary issues and have requested this Court to consider the said issues which according to them would disentitle the petitioner from filing of the above petition and/or seeking for the reliefs stated therein leading upto the dismissal of the petition. 4. Sri.R.Subramanian, learned counsel having expressed his consent for hearing the said preliminary issues, the same are taken up. 5. Sri. S Ganesh, learned Senior counsel instructed by Sri.Sandeep Huligol appearing for respondents No.2 to 7 submitted that: 5.1. The above writ petition is not tenable, that the issue raised in the private complaint has already been decided by the Delhi High Court in W.P.No.4905/2017. 5.2. The petitioner having filed PIL before this Court and having withdrawn the same unconditionally without reserving any liberty the present writ petition is not maintainable and as such, the writ peti....
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....r made a complaint dated 28.04.2017 on the same with the 1st Respondent as well. True copy of the Petitioner's complaint dated 28.04.2017 to 1st Respondent seeking action on the complaint filed with 3rd Respondent to revoke the merger is annexed herewith and marked as Annexure-P16. 37. The Petitioner states that it was further shocked to find that in respect of the 3 subsidiaries of the NBFC's, which were illegally acting as NBFC's without registration with full knowledge of the 3rd Respondent, the 3rd Respondent instead of shutting them down and prosecuting the companies and its officers had instructed them to not make fresh investments and as such by such instruction legitimised the existing NBFC business being carried on in violation of law without registration. The Petitioner states that the 3rd Respondent is merely bound to implement the law and has no right under the law to waive the same or relax the same and as such the instruction to the said companies to continue NBFC business without making fresh investments is a gross illegality effected evidently to favour the said companies. True copies of the Directors and Audit Reports of the 3 companies for 2014-15 seting ....
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....e a pre approval of RBI before a merger is filed at High Court. This was also violated. d. Even post merger RBI allowed the companies to operate for many years as NBFC's without registration in direct contravention of law. e) RBI refused to act in any manner even when the violations were [laced before it. True Copy of the Petitioner's representations dated 14.03.2017 and 28.01.2020 to the Reserve Bank of India is annexed herewith and collectively marked as ANNEXURE-R." 5.8. The said PIL having been heard by the Division Bench of this Court, upon the Division Bench of this Court not being convinced with the said matter, the petitioner after addressing arguments in the matter sought for withdrawal of the same during the proceedings on 1.10.2020 and as such, the petition was disposed of as unconditionally withdrawn. 5.9. Relying upon the same Sri. S Ganesh, learned Senior counsel would submit that once the proceeding had been filed making allegations before this Court as a PIL or otherwise and the same had been withdrawn, the filing of the present writ petition is barred by relying on the decision of the Apex Court in Sarguja Transport Service -v- State Tran....
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....t writ petition could not have been filed by the petitioner and is therefore required to be dismissed. 6. Sri.R.V.S. Naik, learned Senior counsel instructed by Sri.V.V.Giri, learned counsel for respondent No.1 would submit that: 6.1. The claim of the petitioner is hit by the principles of rejudicata inasmuch as the RBI vide its order dated 5.9.2017 has rejected the claims of the petitioner. If at all the petitioner has any grievance, the petitioner ought to have challenged the order dated 5.9.2017. Same not having been challenged, a private complaint could not have been filed by the petitioner. 6.2. The said order of the RBI having been made in pursuance of the order of the Hon'ble Delhi High Court has an effect of resjudicata, the petitioner cannot once again reagitate the same except by way of an appeal. 6.3. On these grounds he submitted that the above writ petition is to be dismissed. 7. Sri.R.Subraminian, learned counsel for the petitioner submitted that: 7.1. the proceedings which had been filed before the Hon'ble Delhi High Court were different from that which had been filed before the Magistrate by way of above PCR No.7111/2020.....
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....12.10.2020 that the present writ petition was filed. Thus he submits that the withdrawal of the PIL would have no bearing to an already existing matter before the trial Court and the present writ petition is not one under Article 226 but is more under Article 227 of the Constitution of India seeking for exercise of supervisory jurisdiction, as also one under Section 482 of Cr.P.C. to exercise inherent power to set-aside the order passed by the Magistrate. He therefore submits that the withdrawal of the PIL would not have any bearing to the present petition. 8. In rejoinder, Sri.S.Ganesh, Learned Senior counsel would submit that : 8.1. the PIL had been filed earlier in February 2020, thereafter in March 2020 the PCR had been filed which came to be dismissed in July 2020 and the PIL was withdrawn on 1.10.2020, the present writ petition having been filed on 12.10.2020, the principles of Sarguja would apply, the subject matter of the PIL and the PCR being one and the same. 8.2. In this regard he relies upon para 14 of the decision in Vimlesh Kumari Kulshrestha -vSambhajirao and Another [(2008)5 SCC 58] which is reproduced hereunder for easy reference: "14.....
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....he petitioner. Perused papers. 11. The points which would arise for determination by this Court in the present matter are: i) Whether the present writ petition is maintainable in view of the orders passed by the Delhi High Court, as also withdrawal made by the petitioner of the PIL filed before this Court ? ii) Whether the orders passed by the Delhi High Court, as also the order of withdrawal passed by the Division Bench of this Court would amount to rejudicata ? iii) What order ? 12. ANSWER TO POINT No.1 - Whether the present writ petition is maintainable in view of the orders passed by the Delhi High Court, as also withdrawal made by the petitioner of the PIL filed before this Court? 12.1. Chronologically speaking it is the proceeding before the Hon'ble Delhi High Court which was taken up first whereunder there have been allegations made as regards respondents No.2 to 7 having violated the provisions of 45IA of the RBI Act and requiring for action to be taken by the RBI. Though the action is stated to be to consider the representations made by the petitioner vide its complaints dt. 1.11.2016, 14.3.2017 and 28.4.2017, it is seen on a readi....
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....ner till date. What was sought for by the petitioner was for consideration of the complaints filed by the petitioner which has been so considered by the RBI and rejected by order dt. 5.9.2017. Whether said order is proper or not is is not a matter which could be considered by this Court since the said order is not under challenge before this Court. 12.7. The RBI has categorically debunked the allegations made by the petitioners against respondents No.2 to 7, as also against RBI and in that background, the RBI has categorically stated that the merger cannot be annulled or RBI cannot approach the Court for annulment of such merger. 12.8. As regards the annulment of merger, it is stated that the petitioner has filed a separate Company Application in Co.P. No.182/2014. Thus the RBI not having the jurisdiction to do so and the petitioner having approached the jurisdictional Court, even that aspect cannot be considered by the Magistrate. 12.9. In view of the above, though it has been contended by Shri R.Subramanian that the present writ petition is more in the nature of an appeal from the order passed by the trial Court in PCR No.7111/2020 having regard to the ....
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....assed an order according to RBI dated 05.09.2017, the reliefs sought for in the PCR cannot be granted, as such the question of issuance of a certiorari to quash the order dismissing the PCR, restoring the PCR and issuing directions to the RBI to consider the alleged offence would also not arise. The RBI having contended that the letter dated 05.09.2017 is an order, the Petitioner would be at liberty to challenge the same in accordance with law. 12.15. In view of the above, I answer point No.1 holding that the present writ petition is not maintainable in view of the orders passed by the Hon'ble Delhi High Court, as also withdrawal made by the petitioner of the PIL filed before this Court as also the order passed by the RBI dated 05.09.2017. 13. POINT No.2: Whether the orders passed by the Delhi High Court, as also the order of withdrawal passed by the Division Bench of this Court would amount to rejudicata? 13.1. Though it is sought to be contended by Sri.R.V.S.Naik, learned Senior counsel that the order passed by the Delhi High Court would operate as resjudicata, I am of the considered opinion that the order of the Delhi High Court was only a direction to the R....