TaxTMI 
TaxTMI 
2021 (5) TMI 525
X X X X Extracts X X X X
X X X X Extracts X X X X
....eral Mr. Devang Vyas and the learned Additional Public 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)....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....02.2002 informing the SEBI that he joined the board of the Company in 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er more than 80 adjournments were sought by the ROC, whereas, the petitioner was consistently 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, returnabl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ideo conferencing. Learned advocate Mr. Jaimin A Gandhi states that the applicant has also preferred Special Criminal Application No. 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....contentions of change of circumstances relating to violation of fundamental right of speedy trial, the learned Senior Advocate Mr. Pahwa relied upon the following judgments: (I) Superintendent 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Advocate Mr. Pahwa further submitted that the company i.e. Sushil Packaging (India) Ltd. is not joined as accused in the F.I.R. and therefore, the complaint is not maintainable against the petitioner who is only a professional director. Mr. Pahwa relied upon the following decisions in support 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 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lpesh Dagli v/s State of Gujarat reported in 2012 (2) GLR 1116, (II) In the case of Nimain Charan Biswal Versus Registrar Of Companies, Gujarat, Ahmedabad reported in 2019 (1) GLH 26, (III) In the case of Dilip Dwarkadas Udeshi Versus State Of Gujarat reported in 2019 (2) GLH 610, (IV) In the case of Chandra Prakash Agal Versus State Of Gujarat reported in 2019 JX(Guj)423 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....'IPC', for short) was lodged on 15.11.2004 wherein the present petitioner is specifically named in column No.5 of the FIR being C.R.No.I-192 of 2004 registered with Sanand Police Station and the specific allegations are made against all the accused that they were the promoters at that relevant point of time when the incident occurred from the year 1994 till the date of registration of the FIR and he has committed the offence as alleged 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, incl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hullar & Ors. reported in (2011) 14 SCC 770 to canvass the scope of exercise of powers under section 482 of the Code. In view of the said judgment as well as in view of the peculiar facts and circumstances of the present case, it was submitted that when the trial Court has framed the charges after considering all the materials made available before it and after forming a prima facie opinion that there are sufficient materials on record against 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 pe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e, after withdrawal of the said earlier petition, the petitioner has not availed the alternative efficacious statutory remedy which is provided under the statute and therefore, in absence of availing such remedy, straightway the present petition is filed under Article 226 of the Constitution of India, which is not maintainable and deserves to be dismissed on the said ground of alternative remedy alone. Therefore, the said judgment would not have any application 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 spec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat the record goes to show that there was not an attempt made by the petitioner to make any such application before the Trial Court seeking expeditious disposal of the criminal case. In fact, the petitioner has benefitted from the pendency of the said criminal proceedings by not remaining present in another identical offences registered under the Companies Act. It was pointed out by Mr. Mehta that as per the instructions that the present petitioner did not remain present 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... raised all such other grounds with regard to the aspect of non-involvement of the petitioner and that there is no prima facie case against the petitioner. It was submitted that at this stage today, not only the investigation is over and charge sheet is filed, but also the charges have been framed by the Trial Court after considering all the evidence on record and has given prima facie opinion for proceeding further with the trial based on such evidence. Therefore, at this stage, 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r, in the facts of the present case, the petitioner has not made any such application seeking early disposal of the trial nor the petitioner has made any such application under Section 249 and 256 of the Code seeking discharge on the ground that the complainant did not remain present for the trial. It was therefore, submitted that in absence of any such application, the petitioner is not entitled to raise such contention directly before this Court and therefore, the present petition 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... School of Management, H.L. College of Commerce (CA programme) and Institute of Cost & Works Accountant of India and there is no change of vakalatnama as alleged by Respondent. 8.4 With regard to the judgments relied upon by the respondent, it was submitted that: (1) The decision in case of State of Maharashtra v/s Avinash reported in 2017 (6) SCC 735 is not applicable because (a) Withdrawal was suppressed and so it was held that subsequent petition is not maintainable and (b) There it was not 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 ap....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Vijay Versus State Of Maharashtra (ii) 2017 (7) SCC 767, Aroon Purie Versus Jayakumar Hiremath (iii) 2016(16) SCC 30 : AIR 2016 SC 4245, Prabhu Chawla Versus State Of Rajasthan (Larger Bench 3 Judges) (iv) 2009 (6) SCC 475 : AIR 2009 SC 2594, Keki Hormusji Gharda Versus Mehervan Rustom Irani (v) 2009 (2) SCC 370: AIR 2009 SC 1032, Dhariwal Tobaco Products Limited Versus Sate Of Maharashtra (vi) 2019 (11) SCC 706 : AIR 2019 SC 210, Anand Kumar Mohatta Versus State (Govt.Of Nct Of Delhi) Department Of Home It was submitted that if the charge-sheet 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 wa....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in the case of Mohit alias Sonu and another (supra) in respect of inherent power of the High Court in Section 482 of the Cr.P.C. does not state the law correctly. We record our respectful disagreement. 8. In our considered opinion the learned Single Judge of the High Court should have followed the law laid down by this Court in the case of Dhariwal Tobacco Products Ltd. (supra) and other earlier cases which were cited but wrongly ignored them in preference to a judgment of that Court in the case of Sanjay Bhandari (supra) passed by another learned Single Judge on 05.02.2009 in S.B. Criminal Miscellaneous Petition No. 289 of 2006 which is impugned 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....exercise jurisdiction under Section 482 of Cr.P.C even when the discharge application is pending with the trial court, G. Sagar Suri and Anr. V. State of U.P and Others, (2000) 2 SCC 636 (Para 7). Umesh Kumar V. State of Andhra Pradesh and Anr. (2013) 10 SCC 591 (Para 20). Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced, and the allegations have materialized into a charge sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge sheet after investigation. The power is undoubtedly conferred to prevent abuse 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 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... was appointed as professional director and therefore, he was not concerned with the financial affairs of the company. (VII) On bare perusal of the averments made in the F.I.R. being C.R. No. I-192 of 2004 registered before Sanand Police Station by the respondent no.2, no allegations worth the name is made against the petitioner for the alleged offences punishable under Sections 403, 406, 409, 415, 418, 420, 424, 120 B and 114 of the Indian Penal Code. (VIII) It is also pertinent to note that the Criminal Case is pending against the petitioner since last more than 24 years and the case is still at the evidence stage of the prosecution. (IX) On perusal of the rojkam produced on record, it is evident that the respondent no.2 - complainant has failed 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ition and filing of the present petition before this Court. This Court while admitting the present petition and granting stay against further proceedings in Criminal Case No.1903 of 1996, has taken note of this aspect of the matter. The case of bigamy is totally false and other allegations were levelled in earlier complaints also from which the petitioner was acquitted. Hence, there is no justification in continuing the complaint under challenge against the petitioner. The challenge to the maintainability of the petition is also not sustainable in view of the decision of the Hon'ble Supreme Court in the case of Superintendent and Remembrancer of Legal Affairs, W.B. V/s. Mohan Singh and others (Supra). The Hon ble Supreme Court has clearly held in that case that the facts and circumstances obtaining at the time of 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 p....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... In the case of Dhirajlal Depchand Shah v/s State of Gujarat in Criminal Misc. Application No. 20191 of 2014 dated 21.04.2015, this Court has held as under: "13. Having heard the learned counsel appearing for the parties and having gone through the material on record, the only question that falls for my consideration is whether the prosecution should be dropped against the applicant herein on the ground that his right to have speedy trial as embodied under Article 21 of the Constitution could be said to have been violated. xxxx 19. I could have directed the trial court to proceed further with the trial expeditiously and finish it off within a stipulated time, but it appears that despite many such orders being passed in the past in different matters the courts have not been able to complete the trials. xxx 26. I am not going into the 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 all....
X X X X Extracts X X X X
X X X X Extracts X X X X
....prosecution and trial any further would be total abuse of the process of law. Consequently, the criminal proceedings are quashed. The appeal is accordingly allowed and disposed of." (V) In the case of Abdul Rehman Antulay v. R.S.Nayak reported in 1992 (1) SCC 225, the Court has held as under: "86, In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must fore warn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are: (1) Fair, just and reasonable procedure implicit in Art. 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the less the right of the accused. It is in the interest 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 invest....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one. (6) Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell, J. in Barker it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate". The same idea has been stated by White, J. in U.S. V/s. Ewell in the following words: 'the Sixth Amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than mere speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances.' However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused wil....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... do we think that not Fixing any such outer limit in effectuates the guarantee of right to speedy trial. (11) An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High court. Even if the High court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High court must, however, be disposed of on a priority basis." (VI) In the case of P.Ramachandra Rao v. State Of Karnataka reported in 2002 (4) SCC 578, the Apex Court has held as under: "30 For all the foregoing reasons, we are of the opinion that in Common Cause case (I) (as modified in Common Cause (II) and Raj Deo Sharma (I) and (II), the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold: (1) The dictum in A. R. Antulay's case is correct and still holds the field] (2) The proposition emerging from Art. 21 of the Constitution an....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... occasion to remind the Union of India and the state governments of their constitutional obligation to strengthen the judiciary- quantitatively and qualitatively - by providing requisite funds, manpower and infrastructure. We hope and trust that the government shall act. 35 Secondly, though we are dealing the directions made respectively by two and three judge benches of this Court in the cases under reference, for reasons which we have already stated, we should not, even for a moment, be considered as having made a departure from the law as to speedy trial and speedy conclusion of criminal proceedings of whatever nature and at whichever stage before any authority or the court. It is the constitutional obligation of the state to dispense speedy justice, more so in the field of criminal law, and paucity of funds or resources is no defence to denial of right to justice emanating from Articles 21, 19 and 14 and the Preamble of the Constitution as also from the Directive Principles of state policy. It is high time that the Union of India and the various states realize their constitutional obligation and do something concrete in the direction of strengthening the justice delive....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Inspite of order dated 18th November, 2000, for nine years, records were not made available, as apparent from the Inquiry Report dated 15th December,2008. 33 There is nothing on the record, even by way of counter affidavit filed before this Court to show that record has now been traced to make it available to the Investigating Agency. There is no probability of finding out original documents or evidence mentioned in the counter affidavit. Though, delay has been alleged on the part of the appellant, there is nothing on the record to suggest that the appellant caused delay in the matter of investigation. On the other hand, the silence on the part of the respondent regarding availability of the original record or other evidence before the Investigating Agency shows that the delay caused due to inaction on the part of the respondent. Therefore, in our view, keeping investigation pending for further period will be futile as the respondent including Directorate for the State Literacy Programme is not sure whether original records can be procured for investigation and to bring home the charges. Considering the fact that delay in the present case is caused by the respondent, the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing companies list, identical first information reports have been filed without actually ascertaining the true position. Consequently, the allegations made in the first information report are very vague and general in nature. No specific allegations are made as regards the nature of the misstatements made in the prospectus and as to how the offences alleged have been committed and the roles of the individual accused. The learned counsel for the second respondent had been called upon by the court to pinpoint the false averments made in the prospectus. He, however, was unable to point out any mis-statement therein. It appears that the entire case of the respondents is based upon the fact that SEBI had declared the company to be a vanishing company and had listed the company in the list of vanishing companies." 15. With regard to submission that no second complaint can be filed the facts of this case is similar to the case of Gaurang Shethwala v/s State of Gujarat in Criminal Misc. Application No. 1032 of 2007 wherein this Court has held as under: "10. Considering the above facts and circumstances of the matter, there is substance in the arguments of Mrs. Pahwa that, there....
X X X X Extracts X X X X
X X X X Extracts X X X X
....filing the impugned FIR, therefore, the petition deserves to be allowed." 16. This Court in the case of K.S. Ranganathan v/s State of Gujarat rendered in Criminal Misc. Application No. 5534 of 2008 has held as under: "17. It is not disputed that the petitioners were only professionals and non-executive Directors and thereby they were not promoters or subscribers or not in-charge or responsible for day to day management, business and affairs of the company and that the petitioners have already signed in the year 1996 itself, whereas complaint is filed in the years 2002 and 2004 though company has filed audited balance-sheet upto financial year ending in March 2000, which was adopted by the Annual General Meeting. 19. Thus, the impugned FIR is the second one and more particularly the complainant, respondent no. 2 was very much aware about the acceptance of resignation by petitioners in the year 1996 and activities of the company right from the year 1993. However, it seems that the complainant had waited upto the year 2002 for filing the first complaint and upto the year 2004 for filing second complaint by disclosing same set of information in two similar complain....
X X X X Extracts X X X X
X X X X Extracts X X X X
....idence is already available with the complainant/ respondent no. 2, there is no reason for filing fresh complaint before the police authority for further investigation as alleged." 17. There is no averments or allegations against the petitioner in the F.I.R. and therefore, the F.I.R. as well as Criminal Case is liable to be quashed and set aside as held in the following decisions: (I) In the case of Managing director, Castrol India Ltd v/s state of Karnataka reported in 2017 (7) Supreme 383, the Court has held as under: 8. In the present complaint petition, there is no averment or statement whatsoever that the appellant as the Managing Director of the Company was responsible or incharge of the conduct of the business of the Company in respect of which the offence in question has been alleged to have been committed. Neither there is any averment to the effect that the appellant is otherwise connected or responsible for commission of any of the acts on the basis of which the offence(s) is alleged to have been committed. 9. It will not be necessary to burden this order by a detailed reference to numerous pronouncements of this Court interpreting similar p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....question of offences under the Indian Penal Code. 27 Apart from this, when a Company is said to be an offender for the purpose of offences under the Indian Penal Code, merely because a person happens to be a Director to consider his or her involvement in the offence cannot be assumed. Involvement has to be plead ed specifically. For making out the allegation of constructive liability, either there has to be sharing of common intention, as provided in S.34 of Indian Penal Code or common object, as per S. 149, 120-B, if there is allegation of conspiracy and allegations of abetment, if made, as per S. 107 to 114. In absence of any of these evidences, mere holding of post of Director in a Company, cannot make an accused responsible for the alleged offences. 28 The provisions of the Companies Act, as made in S.5, clearly identify, who could be the officer held to be in default. 29 Either for offence under the Companies Act or for offence under the Indian Penal Code, for the aforesaid reasons, nothing is to be found in the complaint prima facie against the accused. 30.The petitions are, therefore, required to be allowed. They are accordingly allowed. T....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ities of the company right from the year 1996, but they waited till the year 2002 - 03 and tried to harass the petitioner by not disclosing the correct information to the police while filing the impugned FIR, therefore, the petition deserves to be allowed." 21. With regard to the offences mentioned in the impugned F.I.R. under the Indian Penal Code, none of the offence is made out as there is no allegation against the petitioner with regard to siphoning of the funds of the said company in the F.I.R. On bare perusal of the averments made in the F.I.R., none of the ingredients of the offences under Sections 403, 406, 409, 415, 418, 420, 424, 120 B and 114 of the Indian Penal Code is made out. 22. Therefore, in view of the above dictum of law, the contentions raised on behalf of the respondents are required to be rejected as it is not in dispute that the petitioner was appointed as a professional director of the company in the year 1994 and in view of the facts which are emerging from the record, the impugned complaint filed by the respondent no.2 is also not sustainable as the petitioner being professional director is not involved into day today affairs of the compa....