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2023 (10) TMI 1568
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....r quashing all further proceedings against the petitioners in the said crime, which was registered pursuant to Annexure-A1 complaint. W.P.(C) No. 2676/2020 is filed by the defacto complainant in the said crime, for issuance of a writ of mandamus commanding the official respondents to complete the investigation in the said crime and to submit a final report expeditiously. 2. The facts which led to the filing of these cases are as follows: The aforesaid crime was registered based on a private complaint submitted by the defacto complainant before the Judicial First Class Magistrate Court-III, Kottayam. The said private complaint is produced as Annexure-A1 in Crl. M.C No. 5052/2020. Annexure A4 is the F.I.R. registered in the said case by Kottayam West Police Station, based on the said complaint. The offences alleged against the accused are under Sections 120B, 406, 465, 467, 468 r/w Section 34 of the Indian Penal Code (IPC). 3. The crux of the allegations contained in Annexure-A1 complaint is as follows; the husband of the defacto complainant, along with his friends, started a private limited Company under the name and style M/s Roshini Sea Foods, showing its registered off....
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....The Crl. M.C. is filed by the petitioner in such circumstances seeking to quash the investigation which is now being conducted in the said crime. 5. Earlier, the defacto complainant approached this Court by filing W.P(C) No. 17170/2018 for transferring the investigation to the Central Bureau of Investigation on the ground that the investigation conducted by the police was not proper. The aforesaid Writ Petition was disposed of by this Court as per judgment dated 18.11.2019, directing the transfer of the investigation from Kottayam West Police to the Crime Branch. Consequently, the investigation of the said case was entrusted to the District Crime Branch, Kottayam. However, according to the defacto complainant, even now, the investigation has not been completed. The W.P (C) No.2676/2020 is filed by the defacto complainant seeking to expedite the investigation that the Crime Branch is conducting. 6. Heard Sri.Shinu J. Pillai, the learned counsel for the petitioners/accused Nos. 1, 2 and 5, Sri. C. Unnikrishnan, the learned counsel appearing for the defacto complainant and Sri. Vipin Narayan, the learned Public Prosecutor for the State. 7. The main contention raised by the le....
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....raud: Provided that where the fraud in question involves public interest, the term of imprisonment shall not be less than three years: [Provided further that where the fraud involves an amount less than ten lakh rupees or one per cent. of the turnover of the company, whichever is lower, and does not involve public interest, any person guilty of such fraud shall be punishable with imprisonment for a term which may extend to five years or with fine which may extend to [ fifty lakh rupees] or with both.] Explanation. - For the purposes of this section- (i)"fraud" in relation to affairs of a company or any body corporate, includes any act, omission, concealment of any fact or abuse of position committed by any person or any other person with the connivance in any manner, with intent to deceive, to gain undue advantage from, or to injure the interests of, the company or its shareholders or its creditors or any other person, whether or not there is any wrongful gain or wrongful loss; (ii) "wrongful gain" means the gain by unlawful means of property to which the person gaining is not legally entitled; (iii) "wrongful loss" means the loss by unl....
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....ffences alleged in the complaint and incorporated in the FIR are distinct offences which need not be a subject matter of the special procedure for investigation, as contemplated under the provisions of the Companies Act, 2013. It was also pointed out that the Companies Act, 2013 does not absolutely prohibit an investigation being conducted for the offences under the IPC, even if the allegations pertain to the affairs of the said Company and the special procedure contemplated in the said Act are in relation to the commission of the offences under the Companies Act and the same cannot be extended to the offences of IPC. It was also contended by the learned counsel for the defacto complainant that the provisions under the Companies Act, 2013 cannot be made applicable to the offences for which crime was registered as the cause of action for the offences arose much prior to the enactment of the Companies Act, 2013. 10. I have carefully gone through the materials placed on record, contentions raised from either side and various decisions relied on by both sides to substantiate their respective contentions. 11. The first and foremost aspect to be noticed is that, as rightly pointed ....
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....irtue of Section 212 of the Act. Sub-section (1) thereof contemplates an investigation into the affairs of the Company by a serious fraud investigation office. Such an investigation can be commenced on a receipt of the report of the Registrar or Inspector under section 208, or on intimation of a special resolution passed by a company that its affairs are required to be investigated or in the interest of the public interest or upon the request from any Department of the Central Government or a State Government. Therefore, as per section 212 of the Act, the investigation can be instituted as per the special procedure only based on the reports and the circumstances referred to above. The crucial aspect to be noticed is that, the complaint at the instance of the private individual is not contemplated therein. The remedy of a private individual or shareholder appears to be that he can approach the Registrar for initiating an inquiry under section 206 of the Companies Act. As per Sub-sections (6) of Section 212 of the Companies Act, certain special conditions are imposed for the purpose of the release of a person accused of the offences referred to therein on bail, and it also refers to ....
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....both enactments but shall not be liable to be punished twice for the same offence. [T.S. Baliah v. T.S. Rangachari, (1969) 3 SCR 65 : AIR 1969 SC 701] The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under IPC and at the same time, an offence under any other law. [State of Bihar v. Murad Ali Khan, (1988) 4 SCC 655 : 1989 SCC (Cri) 27] The High Court ought to have taken note of Section 26 of the General Clauses Act, 1897 which reads as follows: "26. Provision as to offences punishable under two or more enactments .- Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." 8. In Hat Singh case [State of Rajasthan v. Hat Singh, (2003) 2 SCC 152 : 2003 SCC (Cri) 451] this Court discussed the doctrine of double jeopardy and Section 26 of the General Clauses Act to observe that prosecution under two different Acts is permissible if the ingredients of the provisions are sati....
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....as provided in Section 190(1)(d) of the Code of Criminal Procedure" 15. In State of Bombay v. S.L. Apte [AIR 1961 SC 578], it was observed by a constitution bench of the Hon'ble Supreme Court as follows: "To operate as a bar the second prosecution and the consequential punishment thereunder must be for 'the same offence'. The crucial requirement, therefore, for attracting the article is that the offences are the same i.e. they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out. It would be seen from a comparison of Section 105 of the Insurance Act and Section 405 of the Penal Code (Section 409 of the Penal Code being only an aggravated form of the same offence) that though some of the necessary ingredients are common they differ in the following: (1) Whereas under Section 405 of the Penal Code the accused must be entru....
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.... special court shall not take cognizance of any offence referred to this sub-section .........." There are two aspects in this case, first of all, the restrictions imposed in this provision are regarding taking cognizance by a special court and secondly, the cognizance contemplated therein is in relation to the offence referred to in the sub-section which means the offence under section 447 of the Companies Act as it is specifically referred to in subsection (6) of Section 212 of the Act. In this case, the offences which are now being investigated into by the police in Annexure-A4 crime are in relation to the offences under the provisions of the IPC and, therefore would not come under the offences referred to in sub- section(6) of section 212 of the Act. Moreover, the offences which are now being investigated are to be taken cognizance of by regular criminal courts and not by a special court constituted under the provisions of the Companies Act. Therefore, even though, the offences alleged against the accused have some relation to the affairs of the said company, that would not take away the right of a private individual to resort to criminal prosecution for the offences contemplat....
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.... made therein cannot be made applicable to this case as well. 19. The learned counsel for the accused also raised various contentions with regard to the falsity of the allegations raised in the complaint. However, I am of the view that, those contentions cannot be considered at this juncture as the matter is being investigated. Now, the relief sought in the Crl.MC is to quash FIR and all further proceedings pursuant to the said crime. The scope of this Court in interfering with the investigation is very much limited. When considering the challenge against an FIR, the jurisdiction of this Court is very limited, and interference can be made only if it is shown that, even if the allegations made in the complaint are accepted for its face value, it would not make out any of the offences alleged therein. For considering the said aspect, what is to be taken into consideration is the allegations raised and not the materials produced in respect of the same as the said materials are to be evaluated by the investigation agency and to decide whether a final charge is to be laid or not. Therefore, this Court has to proceed with the assumption while considering the challenge against the FIR ....