TaxTMI 
TaxTMI 
2025 (4) TMI 1120
X X X X Extracts X X X X
X X X X Extracts X X X X
.... prayer for discharge by the petitioner cannot be entertained because Law is apposite that if any officer or employee of a company having validly obtained possession of a property of a company, wrongfully retains the same, as appears to be the case in this proceeding, it would constitute an offence contemplated in Section 452 of the Companies Act, 2013. The Court has taken cognizance of such offence on the basis of prima facie materials available before it and, therefore, the question of discharge of the petitioner at this stage, even prior to commencement of trial, does not arise. 2. The factual matrix is essential for the purpose of the disposal of this case is as under: 2a. Shri Sunil Bansal is a Managing Director as well as the Majority Shareholder of the company namely the Lexus Exports Private Limited / Opposite Party No. 2 herein. The petitioner Meeta Bansal herein married with him on 22.05.1989 according to Hindu Rites and Customs and from the said wedlock, a girl child was born on 31.10.1993. 2b. The Lexus Exports Private Limited was incorporated on 03.12.2010. In the said company, Shri Sunil Bansal and the petitioner herein were the Directors as well as Sharehold....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Station, Lalbazar and pursuant thereto, Cyber Police Station Case No. 21/2016 dated 28.03.2016 under Sections 120B/420/406/465/468/471 of the IPC was registered for initiating investigation against the said Shri Sunil Bansal and others. 2h. Initiation of complaint under Section 452 of the Companies Act, 2013 on 07.04.2016 by the authorised person of the Company by way of the impugned petition of complaint before the learned Chief Judicial Magistrate, Alipore, South 24 Parganas was a counterblast to the aforesaid litigations initiated at the behest of the petitioner against the Shri Sunil Bansal. Learned Chief Judicial Magistrate took cognizance. Upon examination of the witness under Section 200 of the CrPC, the learned Chief Judicial Magistrate issued process against the petitioner under Section 452 of the Companies Act, 2013. 2i. Petitioner entered appearance and obtained bail. Thereafter, the petitioner filed an application praying for discharge from the impugned proceedings on the ground stated therein but, vide order dated 08.02.2017, the learned Chief Judicial Magistrate rejected such prayer and fixed the matter on 15.03.2017 for recording of plea. As such, the petitio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h letters were/are all fabricated and her signatures were also forged and/or fabricated presumably by Sunil Bansal and two others, namely, Anand Jajodia and Deepak Agarwala, being his Auditor and Chartered Accountant. 3b. Pursuant thereto, it appears that her name does not appear as a Director in the records of any of the said five companies. 3c. The petitioner had, at no point of time, written any letters to the Board of Directors of any of the said five Companies, neither tendering her resignation, nor authorised any person whatsoever to write any such letter on her behalf. The letters dated 28th December, 2015 have neither been signed upon, nor issued by her and/or under her instructions or authorization. 3d. Those documents are forged and have been falsely and fraudulently manufactured by her husband, Mr. Sunil Bansal in conspiracy and connivance with one Mr. Anand Jajodia, holding Membership No. 067308 (his Chartered Accountant) attached to Charter Accountant Firm of Ritu Agarwala & Associates, Chartered Accountants having Registration No. 326003E, having its office at 135A, Chittaranjan Avenue, 1st floor, Room No. 7, Kolkata - 700 007 and Mr. Deepak Agarwala, Charter....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tious in dealing with this type of complaint and must take pragmatic realities into considerations while dealing with matrimonial cases and over all facts and circumstances of the case. When the proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive of wreaking vengeance, then in such circumstances, the High Court owes a duty to look into the FIR with care and a little more closely. It will not be enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not as, in frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection, to try and read between the lines. 3i. To bolster his contentions, he placed reliance upon the judgments delivered in the cases as under: i. Abhishek Vs. State of Madhya Pradesh (2023 SCC OnLine SC 1083); ii. State of Haryana and Others Vs. Bhajan Lal and Others (1992 SCC (Cri) 426, 1992 Supp (1) SCC 335); ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....also lodged written complaint to the Officer-in-Charge, New Alipore Police Station alleging therein that the Company is the owner of a Honda Jazz Car (white colour) bearing Registration No. WB- 06H-4556, Engine No. L 12B 14700693 and the Chassis No. MAKGG 173JEN 200164. The said car was allowed to be used by Smt. Meeta Bansal, petitioner herein for carrying out official assignment for the Company and for such purpose, the car was being used by her when she was a Director. The said car was taken by her for official works sometimes around December 2015 and was retained by her at 671, Block - O, New Alipore, Kolkata 53 on the pretext that the car was required by her on a continuous basis for Company purposes. 4a. It was further submitted that the Company had been making payment towards fuel consumption and using repair works in the normal course. But, subsequently, the Company found the said car was used by her for personal purposes at the cost and expenses of the Company. Accordingly, it was requested to Smt. Meeta Bansal to return the car but each time she had refused to hand over the car to the Company and, thus, the Company deprived of use of its own property that could be used....
X X X X Extracts X X X X
X X X X Extracts X X X X
....wrongful loss to her as there are matrimonial disputes between them. Petitioner was intentionally removed from the Company. The Company has filed a false and frivolous court complaint through its authorised agent under Section 452 of the Companies Act, 2013 read with Section 200 of the CrPC alleging, inter alia, that the petitioner has intentionally and wrongfully withholding several articles of the Company despite repeated requests. In spite of several letters were written to the petitioner asking her to return the items i.e. Honda Jazz Car, the Television Sets, Laptops, Desktop Computers, Split Air Conditioners and Room Conditioners etc., she failed. 7. Before entering into the merits of the case, it would be appropriate to note herein below the provision laid down in Section 452 of the Companies Act, 2013 for fair, proper and effective disposal of the case as follows: - "Section 452 of the Companies Act, 2013 says: Punishment for wrongful withholding of property. - (1) If any officer or employee of a company- (a) Wrongfully obtains possession of any property, including cash of the company; or (b) having any such property including cash in h....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... The said car was taken by her for official works sometimes around December 2015 and was retained by her at 671, Block - O, New Alipore, Kolkata 53 on the pretext that the car was required by her on a continuous basis for company purposes while she was Director but now, she is no more Director of the opposite party no. 2. 11. Two things come out from the above contentions of the opposite party no. 2. Firstly, it is admitted by the Company/opposite party no. 2 that the Television Sets, Laptops, Desktop Computers, Split Air Conditioners and Room Conditioners etc. were purchased for the use of Managing Director, Shri Sunil Bansal and same was utilised by him at his residence at 671, Block - O, New Alipore, Kolkata 700 053. Shri Sunil Bansal and his wife Smt. Meeta Bansal were residing as husband and wife at the said flat but now the petitioner herein is only residing in the said residence and utilising those articles as a wife of Director, Mr. Sunil Bansal. Secondly, the Honda Jazz Car (white colour) bearing Registration No. WB- 06H-4556, Engine No. L 12B 14700693 and the Chassis No. MAKGG 173JEN 200164 was in custody of the petitioner when she was a Director of the Company and....
X X X X Extracts X X X X
X X X X Extracts X X X X
....not after full-fledged trial. Section 452 of the Companies Act, 2013 specifically deals with the property of the company, which is lying or wrongfully withholding by the officer or employee, as the case may be. Accordingly, process issued against the petitioner after taking cognizance by the Learned Court after being satisfied prima facie seems correct, legal and justified. It requires no interference. Prayer for discharge rejected by the Learned Court below having found no error or perverse and it is well within his jurisdiction. 14. The applicant is not entitled for any reliefs as sought for as the judgments relied by the Learned counsel for the petitioner and ratio decided by the Hon'ble Supreme Court in those cases are not at all applicable in the facts and circumstances of this instant case because first judgment relied by the petitioner in the case of Abhishek Vs. State of Madhya Pradesh was dealt with the matrimonial disputes and the Hon'ble Supreme Court found complainant's allegations were mostly general and omnibus in nature. Without any specific details, as to how and when her brother- in-law and mother-in-law, who lived in different cities, altogether subjected her t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....isclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tha Sanjay and Others vs. State of Kerala and Anr., the Hon'ble Kerala High Court held in Paragraphs 8, 9 and 10 as under: "8. In the decision in Vineet Kumar & Ors. v. State of U.P & anr., reported in [2017 KHC 6274: AIR 2017 SC 1884: 2017 (13) SCC 369], the Apex Court held in paragraph 39 that inherent power given to the High Court under Section 482 Cr.P.C is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the Categories as illustratively enumerated by this Court in [AIR 1960 SC 866], State of Haryana v. Bhajan Lal. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are material to indicate that a criminal proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are material to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulteri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....estrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation / registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged. 10. Therefore, the legal position is clear that quashment of criminal proceedings can be resorted to when the prosecution materials do not constitute materials to attract the offence alleged to be committed. Similarly, the Court owes a duty to look into the other attending circumstances, over and above the averments to see whether there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding instituted maliciously with ulterior motives. Once the said fact is established, the same is a good reason to quash the criminal proceedings. Since the case emanated as and when the officials of the Co-operative Society dem....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the High Court dismissed the petition without recording any reasons. 14. Considering the material on record, in our opinion the approach of the Learned Sessions Court and the High Court in setting aside the summoning order against the accused persons i.e. respondent nos.1,2 and 3 under Section 420 read with Section 120-B IPC is not legally sustainable. 15. For the reasons mentioned above from the facts as pleaded in complaint and the evidence led by the appellant, prima facie case was made out for issuing process against the respondents to face trial for the offence punishable under Section 420 read with Section 120-B, IPC, for which they were summoned. 16. The appeal is accordingly allowed. The impugned orders passed by the High Court and the Sessions Court are set-aside and that of the Magistrate is restored. It is made clear that nothing said above shall be taken as final opinion on merits of the controversy. The Trial Court shall decide the case on its own merits on the basis of the evidence led by the parties." In the present case, the Learned Magistrate only issued summons upon the petitioner. The Learned Trial Court shall have to decide the cas....