TaxTMI 
TaxTMI 
2021 (5) TMI 525
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....lic Prosecutor Ms. Jirga Jhaveri waives service of notice of rule for the respondent no.2 and 1 respectively. 3. Special Criminal Application No. 3100 of 2018 is filed by the petitioner under Articles 226 and 227 of the Constitution of India and under the provision of Section 482 of the Code of Criminal Procedure (for short 'the Code') for quashing of the F.I.R. being C.R. No. I-192 of 2004 registered with Sanand Police Station and Criminal Case No. 15072 of 2010 (Old Criminal Case No. 153 of 2006) filed by the respondent no.2 - Registrar of Companies, Gujarat (for short 'ROC'), under Sections 403, 406, 409, 415, 418, 420, 424, 120 B and 114 of the Indian Penal Code qua the petitioner. FACTS 4.1. The brief facts of the case are that an F.I.R. was lodged on 15.11.2004 against the petitioner being C.R. No. I-192 of 2004 along with other accused persons before Sanand Police Station alleging that the petitioner along with co-accused persons committed the aforesaid offences under Sections 403, 406, 409, 415, 418, 420, 424, 120 B and 114 of the Indian Penal Code for siphoning of the funds of M/s. Sushil Packaging (India) Limited (for short 'the Company') by collecting money fr....
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....n the professional capacity as a Chartered Accountant and he was not involved in any day-to-day affairs of the said company. It was also pointed out by the petitioner that key promoters of M/s. Sushil Packaging (India) Limited i.e. Bipin Mehta thereafter came out with another public issue in the name of Spil Finance limited, where the petitioner was not on the Board of Directors and had disassociated with the Company since 1995. 4.8. Thereafter, it appears that an F.I.R. was lodged before Sanand Police Station being I- C.R. No. 192 of 2004 on 15.11.2004 by the Registrar of Companies for the aforesaid offences under the provisions of the Indian Penal Code. 4.9. The petitioner preferred an application for bail under Section 439 of the Code being Criminal Misc. Application No. 353 of 2005 in connection with the I-C.R. No. 192 of 2004 and the petitioner was granted bail by the Additional Sessions Judge, Ahmedabad (Rural) at Mirzapur vide order dated 04.05.2005 with various conditions and one of the conditions was that the petitioner was prohibited to leave India without permission of the Court and to deposit the passport with the trial Court within a week. 4.10. The said F.I.R. was ....
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....istently attending the trial. 4.16. The petitioner has contended that the pendency of the case is causing mental stress and trauma to the petitioner and was also affecting his prospects of his foreign travel, as the petitioner was required to apply before the trial Court for release of the passport at each time. It was also pointed out by the petitioner that the application of tourist visa for traveling United Kingdom (U.K.) was rejected in the year 2016 on the ground of pendency of the Criminal Case. 4.17. The petitioner at the time of hearing of Special Criminal Application No. 3100 of 2018 filed the draft amendment along with the pleadings with a prayer to quash the proceedings of Criminal Case No. 15027 of 2010 qua the petitioner. 4.18. This Court (Coram: Hon'ble Mr. Justice J.B. Pardiwala) on 11.05.2018 passed the following order: "The learned senior counsel appearing for the writ applicant is permitted to implead the original complainant as party-respondent No.2. The cause title be amended accordingly forthwith. Let notice be issued to the respondents, returnable on 01.08.2018. The learned APP, Ms. Moxa Thakkar waives service of notice for and on behalf of the resp....
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..... 3100 of 2018 for quashing of the F.I.R., which is pending for hearing. Let this application be heard along with the said Special Criminal Application No.3100 of 2018. Office is directed to tag both the matters and place it together for hearing." 4.22. Thereafter, both the matters were heard together from time to time for final disposal with the consent of the parties. Both the sides have submitted their written submissions and the copies of the judgments relied upon by them. On 04.09.2020, both the sides concluded their arguments and submitted the written submissions which were ordered to be taken on record and both the matters were reserved for judgment. SUBMISSIONS OF THE PETITIONER: 5.1. The learned Senior Advocate Mr. Navin Pahwa assisted by learned advocate Mr. Jaimin Gandhi for the petitioner submitted that the Special Criminal Application No. 3100 of 2018 is required to be heard first and if the prayers made therein are not granted, then only the Criminal Misc. Application No. 5585 of 2020 may be considered for the reliefs prayed therein. 5.2. The learned Senior Advocate Mr. Pahwa submitted that the withdrawal of Special Criminal Application No. 2080 of 2006 does n....
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....tendent And Remembrancer of Legal Affairs, West Bengal v/s Mohan Singh reported in AIR 1975 SC 1002. (II) Paresh Chaturdas Patel v/s State of Gujarat reported in 2009 (4) GLR 3553. 5.8. The learned Senior Advocate Mr. Pahwa further submitted that alleged offence took place in the year 1994 as prospectus was issued on 04.07.1994 and the F.I.R. was filed in the year 2004 and the rojkam of the Criminal Case which was transferred to the District Court, Mirzapur indicates that in 12 years of pendency of trial i.e. from 2006 to 2018, not a single witness is examined nor respondent no.2-ROC has remained present, at any time, which is reflected from the rojkam because on ten occasions warrants were issued by the trial Court upon the complainant- respondent No.2 - ROC to remain present. 5.9. The learned Senior Advocate Mr. Pahwa would submit that the petitioner who is a Chartered Accountant due to pending proceedings suffers from mental agony, hardship and disrepute in society and the petitioner also suffers from diabetes and blood pressure and has also undergone heart surgery. Mr. Pahwa also pointed out that the pendency of the criminal case has resulted into rejection of visa of U.K. ....
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....port of his submissions: (I) In the case of R.Kalyani Versus Janak C.Mehta reported in 2009 (1) SCC 516 (II) Nilesh Panchal-chief Director Vyogiswami Financial Consultants Ltd v. State of Gujarat reported in 2019 (4) GLR 2674. (III) Managing director, Castrol India Ltdv/s. State of Karnataka reported in 2017 (7) Supreme 383. 5.14. The learned Senior Advocate Mr. Pahwa further submitted that there are no averments or allegations against the petitioner in the F.I.R. and therefore, the F.I.R. as well as Criminal Case is required to be quashed and set aside. Mr. Pahwa relied upon the following decisions in support of his submission: (I) Managing director, Castrol India Ltd v/s state of Karnataka reported in 2017 (7) Supreme 383. (II) SMS Pharmaceiticals Ltd v/s Neeta Bhalla reported in 2005 (8) SCC 89 (II) Rameshchandra Manilal Kotia v/s State of Gujarat reported in 1998 (2) GLR 1222. (III) Municipal Corporation of Delhi v/s Ram Kishan Rohtagi reported in 1983 (1) SCC 1. (IV) A.K. Singhania v/s GSFC reported in 2013 (16) SCC 630. 5.15. The learned Senior Advocate Mr. Pahwa further submitted that the complaint does not specify that which averment in the prospectus is f....
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.... 5.17. The learned Senior Advocate Mr. Pahwa further submitted that the filing of F.I.R. suffers from delay and latches, as the prospectus was issued on 04.07.1994, whereas, the petitioner had already resigned in the month of April, 1995, whereas, the accounts of the said company were not filed from the year 2000 meaning thereby, the accounts were filed till 1999-2000. It was further pointed out that the offences alleged to have been committed in the year 1994 or thereafter and investigation was going on since 2000 and replies of the petitioner dated 15.02.2000 and 15.07.2000 to such investigation were not even reflected in the complaint. Mr. Pahwa also pointed out that the Criminal Case No. 145 of 2002 filed under the provisions of the Companies Act,1956, no summons was issued to the petitioner and despite the knowledge of the fact that of non-filing of the accounts by the Company since February, 2000, the impugned F.I.R. is filed on 15.11.2004 after almost 10 years resulting into delay and latches. 5.18. The learned Senior Advocate Mr. Pahwa relied upon the following decisions in support of his submissions: (I) In Company Application No. 51 of 2003 in case of Hafeez Rustom Da....
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....ged in the FIR. 6.2 It was submitted that the petitioner had filed quashing petition before this Court by filing Special Criminal Application No.2080 of 2006 under Article 226 of the Constitution of India wherein the main ground raised was that there was no prima facie case against the petitioner and the petitioner was not involved in day to day affairs of the company and another ground was raised with the aspect of abetment as alleged for the commission of offence punishable under Section 114 of the IPC. However, the said petition came to be withdrawn unconditionally on 19.12.2006. It is submitted that thereafter, the investigation came to be over and charge sheet came to be filed on 4.7.2007 and the specific charge was made against the accused, including the present petitioner for the offences punishable under Sections 403, 415, 418, 420 and 424 of the IPC. 6.3 It was submitted that the petitioner did not file discharge application under Section 227 of the Code seeking discharge from the charges levelled against him and hence the petitioner has waived such right at that relevant point of time when then charge sheet came to be filed before the learned Trial Court. 6.4 It was su....
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....the accused persons to frame charges against them, this Court may not exercise the extra- ordinary jurisdiction by quashing the said criminal case which is pending before the learned Trial Court at large for its adjudication. 6.8 The learned Advocate Mr. Mehta therefore, submitted that in view of the aforesaid aspect of delay on the part of the petitioner as well as in view of the fact that the petitioner has failed to avail of the alternative efficacious remedy available to him in view of the provisions of Sections 227 and 249 and 256 of the Code, this Court may not exercise the discretion and may be pleased to dismiss the petition with a direction that the Trial Court may decide the trial as expeditiously as possible, as prayed by the petitioner in his main relief. 6.9 The learned Advocate Mr. Mehta thereafter submitted with regard to the issue of maintainability of second petition that the present petition is not maintainable in view of the aspect of constructive res judicata as the petitioner has earlier filed the petition in the year 2006 with the same prayer of seeking quashment of the criminal proceedings on the very same grounds which was withdrawn on 19.12.2006. It was t....
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....on in the facts and circumstances of the present case. 6.12 The learned Advocate Mr. Mehta submitted that another judgment cited by the petitioner with regard to the contention of maintainability of the second quashing petition in the case of R.S. Shah vs. Vinod Brahmbhatt & Ors. reported in 1995(1) GLH 923 is also not applicable to the facts of the case as in the said case though the question was framed with regard to whether once accused having already approached the High Court by filing the Misc. Criminal Application under Section 482 of the Cr.P.C., is he still entitled to have second inning to invoke the very same inherent powers under the Cr.P.C. to quash the proceedings out of the very same complaint, however, no specific answer was given in affirmative and this Court has observed that the subsequent application in light of the change of circumstances can be filed. It was therefore submitted that in the present case, except the delay in proceedings of criminal trial, there is no any other change of circumstances in the nature of allegations made against the accused persons. It was submitted that the petitioner has twisted the facts by stating that there are changed circumst....
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.... before the Addl. Chief Metropolitan Magistrate in Criminal Case No. 145 of 2002 until he procured the stay order in this petition from this Court. The petitioner being an educated person and well versed about the procedural aspects, cannot raise such dispute directly before this Court that there is delay in the trial and therefore, the personal liberty as given under Article 21 of the Constitution of India is infringed. It was submitted that if the petitioner was so vigilant about his fundamental right, the petitioner could have made an application seeking discharge from the charges levelled against him from 2006 till 2018 or he could have made any such application seeking discharge on the ground of absence of the complainant as specifically provided under the statute in view of the provisions of Section 249 and 256 of the Code. 6.15 The learned Advocate Mr. Mehta placed reliance upon the relevant paragraphs of the judgment reported in (2011) 14 SCC 770 wherein, the Supreme Court has specifically observed that when there is statutory remedy available to the petitioner under the Code, the writ petition is filed directly without availing such remedy, which is not maintainable and t....
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....e, the criminal case which is pending at the stage of evidence of the prosecution cannot be quashed by exercising the powers under Article 226 of the Constitution of India. 6.18 It was submitted that reliance placed upon the case of Anil Khadkiwala vs. State reported in AIR 2019 SC 3583 by the petitioner is of no help as the fact of that case is altogether different than the facts of the present case as in that case, the complainant has filed the proceedings under Section 138 of the Negotiable Instruments Act and has also filed criminal proceedings under the provisions of the IPC and the concerned petitioner had resigned from the post of Director before the date of occurrence of such incident. However, in the present case, it is an admitted position that when the incident has occurred in the year 1994, the petitioner was very much a Director of the Company and has also signed as promoter in the prospectus. It was therefore, submitted that the case of Anil Khadkiwala (supra) is not applicable to the facts and circumstances of the present case. 6.19 It was submitted that the petitioner has relied upon the decision of the Supreme Court in the case of Superintendent and Remembrancer ....
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....deserves to be dismissed on the said ground alone. 7. Ms. Jirga Jhaveri, learned Additional Public Prosecutor appearing for the respondent- State adopted the submissions made by Mr. Mehta on behalf of the respondent no.2. REJOINDER OF THE PETITIONER 8.1 The learned Senior Advocate Mr. Pahwa in rejoinder submitted that the petitioner was served with summons in Criminal Case No. 145 of 2002 in August 2002 and since then petitioner has appeared on various occasion in that case. It was submitted that the petitioner has filed Additional Affidavit dated 25/08/2020 wherein petitioner has stated that as per his records he has appeared on 21/06/2003, 13/08/2003, 31/12/2003, 09/02/2005, 18/03/2005, 05/01/2006, July 2008, 28/09/2010, 07/06/2013, 17/06/2014, 11/08/2014, 09/10/2014, 30/03/2015, 03/07/2015, 10/09/2015, 21/10/2015, 13/04/2016, 05/07/2017, 01/05/2018, 17/05/2018, 20/06/2019, 10/01/2020, so the allegation of complainant that the petitioner has not attended the Trial of Criminal Case No. 145 of 2002 is false and without any evidence. It was further submitted that the conduct in a different case is irrelevant for adjudication of the present case as some of the accused in the said ....
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....ot a quashing petition where as this petition is a quashing petition. (2) In case of M.R. Pratap v/s VM. Muthukrishnan reported in 1992 (3) SCC 384, the subject matter was whether a petition is maintainable against Managing Director and not whether quashing petition is maintainable against Managing Director in absence of any averment in the complaint whereas in the fact of the present case the petitioner is a professional Director and there is no averment made against him and there is a difference between a case against Managing Director and other Director. It was submitted that in the said case Managing director signed the false returns of income, so his involvement was apparent from the complaint but there is no case made out of any involvement by the petitioner. (3) In Case of State of Punjab vs. Davinder Pal Singh Bhullar & Ors., reported in (2011) 14 SCC 770, successive quashing petition was permitted only in the case of change of circumstances. It was submitted that the issue of the violation of right of speedy trial was not existing at the time of withdrawal of first petition which now exists resulting into change of circumstances and hence, the present petition is maint....
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....heet is filed, abuse is even bigger. Nothing u/s 482 restricts maintainability of quashing petition after filing of charge sheet, (vii) G.Sagar Suri v/s State of Uttar Pradesh (PB pg 157 174 (Even if dis-charge application is pending) (viii) AIR 2011 SC 2258 : 2011 7 SCC 59, Joseph Salvaraj A. v. State of Gujarat. (Even if charge sheet is filed, it is maintainable) 8.7 Following Judgments were relied upon for maintainability of Quashing Petition despite of Availability of Alternative Remedy: (1) 2017 (13) SCC 317 : AIR 2017 SC 397, Vijay Versus State Of Maharashtra. It was submitted that in the said case the Petition was filed to quash the F.I.R. No. 91/2012 u/s 420,468,506,367 and 392 of IPC and the High Court has dismissed the application filed by the appellants and the Apex Court held as under: "6. A close scrutiny of the order of the High Court reveals that the whole basis for the High Court to pass the order impugned is that there is an alternative remedy available to the petitioner i.e. by way of revision under Section 156(3) of the Cr.P.C. Hence, the jurisdiction under Section 482 Cr.P.C. cannot be exercised by indirect method when statutory remedy of revision is av....
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.... in the connected Criminal Appeal arising out of Special Leave Petition No. 4744 of 2009. As a result, both the appeals, one preferred by Prabhu Chawla and the other by Jagdish Upasane & Ors. are allowed. The impugned common order dated 02.04.2009 passed by the High Court of Rajasthan is set aside and the matters are remitted back to the High Court for fresh hearing of the petitions under Section 482 of the Cr.P.C. in the light of law explained above and for disposal in accordance with law. Since the matters have remained pending for long, the High Court is requested to hear and decide the matters expeditiously, preferably within six months." (5) In case of 2009 (6) Keki Hormusji Gharda Versus Mehervan Rustom Irani reported in SCC 475 : AIR 2009 SC 2594, the Appellant No.1 (Accused No.1) was the Chairman cum Managing Director of the said Company and Appellants 2 to 5 were the Directors thereof and the Appellant no.6 was an Architect. Company demolished one of its property for which various proceedings were initiated, including FIR against the company and its Directors. Quashing petition was dismissed by order dated 16/06/2005 on the ground that it was grossly delayed and the alle....
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....of process of power of any court." (8) In case of G.Sagar Suri Versus State Of Uttar Pradesh reported in 2000 (2) SCC 636 : AIR 2000 SC 754, (9) In case of Joseph Salvaraj A. v. State of Gujarat reported in AIR 2011 SC 2258 : 2011 7 SCC 59. 8.8 With regard to contention that the petition suffers from delay and latches as it is filed after 14 years of filing of FIR and after 12 years of withdrawal of first petition, it was submitted that one of the grounds of maintainability of second petition is change of circumstances as violation of the right of the petitioner for speedy trial is breached by pendency of trial without any progress. It was submitted that when a petition is filed for violation of right of speedy trial, delay caused is the burden to be discharged by the complainant and not the accused and hence delay and latches can never be a ground for dismissal of petition of quashing on the ground of violation of right of speedy trial under Article 21. It was submitted that the petition for quashing can be filed at any stage and it cannot be dismissed on the ground of delay. 8.9. With regard to contention of the respondent that the petitioner ought to have filed application....
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.... to remain present before the trial Court. 10. In view of the above undisputed facts, it would be therefore necessary to examine the contentions raised on behalf of the petitioner, keeping in mind the above facts in the backdrop. 11. It is true that the petitioner challenged the impugned complaint as well as the Criminal Case No. 153 of 2006 by preferring Special Criminal Application No. 2080 of 2006 before this Court under Section 482 of the Code, which was withdrawn. However, initially the Special Criminal Application No. 3100 of 2018 was filed only with a direction to the trial Court to expedite the proceedings. But, later on, this Court has permitted the petitioner to amend the petition by adding the prayer for quashing and setting aside the complaint as well as the Criminal Case which was pending since last more than 20 years. 12. In such circumstances, as canvassed on behalf of the petitioner, relying upon the following decisions in support of the contention that the second petition is maintainable, if the earlier petition is withdrawn, is required to be accepted. (I) In the case of Ahmedabad Manufacturing and Calico Printing Company Limited v. Workmen reported in 1981 (....
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....the subsequent application were clearly different from what they were at the time of the earlier application because, despite the rejection of the earlier application, the prosecution had failed to make any progress in the criminal case even though it was filed as far back as 1965 and the criminal case rested where it was for a period of over one and a half years. In the present case also, the case was registered in 1996 and there was no much progress in the matter. The Court, therefore, rightly entertained the present petition and looking to the peculiar facts of this case, the petition deserves to be allowed." 13. The contention raised on behalf of the petitioner for right to speedy trial also deserves to be accepted in view of the settled legal position emerging from the following decisions: (I) In the case of Pankaj Kumar Versus State Of Maharashtra reported in 2008 (16) SCC 117, wherein, the Court has held as under: 17. It is, therefore, well settled that the right to speedy trial in all criminal persecutions is an inalienable right under Art. 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep th....
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....merit of the matter because I am of the view that this is a case wherein the prosecution deserves to be dropped so far as the applicant is concerned, on the ground that his right to have a speedy trial under Article 21 of the Constitution has been infringed. 27. In the result, this application is allowed. The proceedings of Criminal case No. 2106 of 1994, pending in the court of learned Additional Chief Metropolitan Magistrate, court No. 22, Ahmedabad, are hereby ordered to be quashed so far as the applicant is concerned, original accused no.3. All consequent proceedings pursuant thereto stand terminated. Rule is made absolute." (III) In the case of Vakil Prasad Singh V. State Of Bihar reported in 2009 (3) SCC 355, the Supreme Court has held as under: "29. We have no hesitation in holding that at least for the period from 7.12.1990 till 28.02.2007 there is no explanation whatsoever for the delay in investigation. Even the direction issued by the High Court seems to have had no effect on the prosecution and they slept over the matter for almost seventeen years. Nothing could be pointed out by the State, far from being established to show that the delay in investigation or tria....
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....est of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances. (2) Right to speedy trial flowing from Art. 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. That is how, this court has understood this right and there is no reason to take a restricted view. (3) The concerns underlying the right to speedy trial from the point of view of the accused are: (a) the period of remand and pre- conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction; (b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and (c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of , death, disappearance or non-availability of witnesses or otherwise. (4) At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out,....
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....he circumstances.' However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case. (7) We cannot recognize or give effect to, what is called the 'demand' rule. An accused cannot try himself; he is tried by the court at the behest of the prosecution. Hence, an accused's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial cannot be put against the accused. Even in USA, the relevance of demand rule has been substantially watered down in Barker and other succeeding cases. (8) Ultimately, the court has to balance and weigh the several relevant factors 'balancing test' or 'balancing process' and determine in each case whether the right to speedy trial has been denied in a ....
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....d still holds the field] (2) The proposition emerging from Art. 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A. R. Antulay's case, adequately take care of right to speedy trial. We uphold and reaffirm the said propositions. (3) The guidelines laid down in A. R. Antulay's case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the fact-situation of each case. It is difficult to foresee all situations and no generalization can be made. (4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe and outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceeding merely on account of lapse of time, as prescribed by the directions made in Common Caus....
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....crete in the direction of strengthening the justice delivery system. We need to remind all concerned of what was said by this Court in Hussainara Khatoon (IV) [1980 (1) SCC 98], "The state cannot be permitted to deny, the constitutional right of speedy trial to the accused on the ground that the state has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to ensuring speedy trial. The state may have its financial constraints and its priorities in expenditure, but, the law does not permit any government to deprive its citizens of constitutional rights on a plea of poverty, or administrative inability." (VII) In the case of Lokeshkumar Jain v State of Rajasthan reported in 2013 (11) SCC 130, the Supreme Court has held as under: "30 Having regard to the factual scenario, noted above, and for the reasons stated below, we are of the opinion that the present case of the appellant is one of the fit cases where the High Court should have exercised its power under Section 482 Cr.PC. It is not disputed by the respondent that the departmental proceeding was initiated against the appellant with regar....
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.... by the respondent, the constitutional guarantee of a speedy investigation and trial under Article 21 of the Constitution is thereby violated and as the appellant has already been exonerated in the departmental proceedings for identical charges, keeping the case pending against the appellant for investigation, is unwarranted, the FIR deserves to be quashed." (VIII) In the case of Moti Lal Saraf Versus State Of Jammu and Kashmir reported in 2006 (10) SCC 560 the Court has held as under: "9 In a number of cases, this Court on consideration of peculiar facts and circumstance of individual cases had quashed the proceedings. 15 This Court also observed that while determining whether undue delay has in fact occurred, one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on what is called, the systematic delays. The sum and substance is that it is neither advisable nor practicable to fix any time limit for trial of offence. Each case has to be decided on its own facts and circumstances. 32. When we examine the instant case in the light of the afo....
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....gations and that the impugned FIR is second complaint for similar allegations for which private complaint is already filed and pending at the time of filing of said petition. 11. It is certain that the first instance of information about the commission of cognizable offence either before the police or before the Metropolitan Magistrate is to be treated as complaint and all such subsequent information's will be covered by section 162 of CrPC and therefore as provided is 173 of the CrPC, if investigating agency or other competent authority comes across any further information pertaining to the same incident, normally with leave of the court, such information pertaining to the same incident, normally with leave of the court, such information pertaining to the same incident is to be forwarded to the court as further evidence, if any collected, with further report/ reports u/s 178(8). Though such procedure relates to the investigation of both the complaints by the police, the legal position cannot be altered or changed that there cannot be two separate complaints for the same set of allegations and more particularly when the complainant is one and common and once they have filed a com....
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....on or evidence for lodging the second complaint, it would be proper and appropriate for the complainant to take appropriate steps in the first complaint itself for addition of new sections and charges. Instead of requesting the competent Court where first complaint is pending, the action of the complainant to file second complaint without disclosing the names of the accused, though such names are already disclosed in the first complaint, before the police authority, so as to enable them to call upon different persons as Directors of the company, without confirming that whether they are actually involved in the commission of offences or not, would certainly amount to taking disadvantage of harassing the accused and, therefore, such activities of the complainant inclined the Court to allow the present petitions. To arrive at such conclusion, the Court has relied upon the citations referred by the petitioners. However, relevant portions of such reported judgments are avoided to reproduce herein. 20.1. However, if we go one step ahead, at-least it can be said that even if the complainant is of the view that the petitioners have committed several other offences under the IPC or any ot....
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....in the complaint petition to proceed against an officer of the Company so as to determine his vicarious liability for the offence committed by the company. In the present case the Company is not even arrayed as an accused. Taking into account the provisions of section 74 of the Act, the views expressed by this Court on pari materia provisions contained in different statutes and the absence of any specific averments in the complaint petition, as indicated above, we are of the view that the proceedings against the accused- appellant are liable to be quashed. We order accordingly." (II) In the case of Rameshchandra Manilal Kotia v/s State of Gujarat reported in 1998 (2) GLR 1222, wherein, the Court has held as under: "21 Its relation to the remaining petitioners who are accused Nos. 8, 9, 13 and 15, the case will have to be considered on the basis of the definition given in S. 5 of the Companies Act as to the officer of the defaulter-Company. Sec. 73 in the event of default, makes the Company and ever Director of the Company who is an officer in default, liable. 22 When S.5 is referred to for this purpose, primarily the person required to answer the charge will be the Managing....
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....in reading of the complaint that which averment in the prospectus is false. Moreover, the F.I.R. suffers from delay and latches, as the prospectus was issued on 04.07.1994, whereas, the petitioner had already resigned in the month of April, 1994, whereas, the accounts of the said company were not filed from the year 2000. Meaning thereby, the accounts were filed till 1999-2000. It was further pointed out that the offences alleged to be committed in the year 1994 or thereafter and investigation was going on since 2000 and replies of the petitioner dated 15.02.2000 and 15.07.2000 to such investigation was not even reflected in the complaint. Mr. Pahwa also pointed out that the Criminal Case No. 145 of 2002 filed under the provisions of the Companies Act, no summons was issued to the petitioner and despite the knowledge of the fact that of non-filing of the accounts by the said company since February, 2000, the impugned F.I.R. is filed on 15.11.2004 after almost 5 years resulting into delay and latches. 19. In Company Application No. 51 of 2003 in case of Hafeez Rustom Dalal v/s Registrar of Companies, the Court has held as under: "29 The action is unsustainable also on the ground ....