Dismissed

Sambhaji S/O Balaji Karle v. Uddavrao S/O Jijaba Karle and Another

Bombay HC12 Dec 2014WP/1015/2014

Case brief

AI extract

What is this about?

The High Court dismissed two criminal writ petitions challenging the issuance of process in regular criminal cases. Upholding the J.M.F.C.'s order, the Court held that civil disputes do not preclude criminal proceedings when allegations involve offences under the IPC, and holders of share capital must be given an opportunity to substantiate their contentions in court.

What did the court decide?

Both Criminal Writ Petitions No. 1015 of 2014 and No. 1018 of 2014 dismissed.

Sambhaji S/O Balaji Karle Vs Uddavrao S/O Jijaba Karle and… — Cheque Dishonour | Bombay HC (2014)

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FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. APPELLATE SIDE JURISDICTION

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Office Notes, Office Court's or Judge's orders. Memoranda of Coram, appearance, Court's orders or directions and Registrar's orders.

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CRIMINAL WRIT PETITION NO.: 1015 OF 2014

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AND

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CRIMINAL WRIT PETITION NO.: 1018 OF 2014

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SAMBHAJI S/O BALAJI KARLE VERSUS UDDAVARAO S/O JIJABA KARLE AND ANOTHER ***

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Mr. P. R. Katneshwarkar, Advocate for the Petitioner. Mr. V. D. Sapkal, Advocate h/f Mr. V. B. Jagtap, Advocate for Respondent No.1.

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Mr. B. L. Dhus, A.P.P. For Respondent No.2.

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CORAM: T. V. NALAWADE, J. DATED: 12th DECEMBER, 2014.

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PER COURT:

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The first proceeding is filed to challenge the order

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made by learned J.M.F.C., Newasa in R.T.C. No. 91 of 2013 by which process is issued for offences punishable under sections 420, 406 and 34 of I.P.C. The second proceeding is filed to challenge similar order made by learned J.M.F.C. in R.T.C. No. 92 of 2013. Both the orders

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of learned J.M.F.C. were challenged by filing Criminal Revisions. Learned Additional Sessions Judge has dismissed Criminal Revision Application Nos.51 of 2014 and 52 of 2014. Both the sides are heard.

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The complainant from both the cases is a share holder of one private company - Mauli Agro Products Pvt. Ltd. Mukindpur, Newasa Phata, Taluka Newasa, district Ahmednagar. Accused No.1 Sambhaji Karle is the Chairman of this company and is also working as Managing Director of the company. Accused No.3 is a Director of this Company and it is contended that all the accused had joined hands to commit the offences mentioned in the complaint. It is the case of the complainant, who is an Advocate, that his wife was Director of the company.

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It is the case of the complainant that, he and his wife had become members of the company by purchasing share capital but behind their back some transactions were made and they are deceived. It is the case of the complainant that property bearing Gat No.25/1/1 belongs to the company and it was in the possession of the company though it was purchased in the name of accused No.1. It is the case of the

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complainant that to deceive him and his wife, some record of false resolutions of the company was made and the loan was taken from Union Bank of India, Pune on two occasions. It is contended that the loan of Rs.43.1 Lakh and 42.94 Lakh was taken by giving security of this land and other property and this amount has been misappropriated.

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It is the case of the complainant that Accused Nos.1 to 3 had opened accounts in bank in fictitious names and the amount of the company was diverted to those accounts and the amount was misappropriated. It is contended that property of the company was sold but the amount was not credited in the account of company and that was misappropriated by the accused. It is contended that the milk of the company was sent to purchasers but the sale proceeds were not deposited in the account of the company. It is contended that bogus record of pay bills was prepared by showing the names of the relatives of the accused and by using that modus operandi also amount was misappropriated. It is contended that huge amount of company was spent on lodging, fuel etc. and that amount was also misappropriated.

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It is the case of the complainant that the aforesaid bank had filed proceeding against company, accused Nos.1 to 3 and also the wife of complainant for recovery of the loan amount even though the wife of the complainant had no concern with the loan. It is contended that the said proceeding was decided in favour of the bank and there was a charge of the loan amount on even Gat No.25/1/1.

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It is the case of the complainant that behind their

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back property bearing No.70/02 was sold along with machinery by the accused and this amount was misappropriated. It is contended that on two occasions portions of land Gat No.25/1/1 were sold and this amount was misappropriated. It is contended that under sale deed dated 8^th April, 2011 area admeasuring 1 Hectare 20 Ares was shown to be sold for the consideration of Rs.4.5 Lakhs. It is contended that the value of this property was more than Rs.60 Lakh and the property was sold for Rs.60 Lakh but false consideration was shown by the accused to grab the remaining amount and

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the remaining amount was misappropriated. It is contended that accused Nos.4 to 7 purchasers of this land knew that the property belong to the company and

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not of Sambhaji Karle but they joined hands with Sambhaji Karle. It is contended that in the sale deeds false mention was made that the property was not mortgaged and only Sambhaji Karle had the power to sale the property and he was the actual owner of the property. It is contended that in the aforesaid manner, the amount of the company was misappropriated and fraud was committed against the complainant and his wife. These allegations are made in R.T.C. No.91 of 2013.

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In R.T.C. No. 92 of 2013 allegations are made that under sale deed dated 8^th April, 2011, 40 Ares portion of land Gat No.25/1/1 was sold to Accused No.4 by creating false record of resolution of company and the sale deed of Rs.1.5 Lakh was made. It is contended that the property was actually sold for Rs.20 Lakh but by showing less amount the remaining amount is misappropriated by accused. It is contended that accused No.4 knew that the property was of the company but in the sale deed it was mentioned that accused No.1 Sambhaji Karle was the owner of the property. It is contended that even though the property was mortgaged to the aforesaid bank, it was contended that the property was not

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mortgaged to anybody and Sambhaji had right to dispose of the property. Other allegations are similar to the other allegations made in S.T.C. No.91 of 2013.

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In view of the aforesaid allegations, process came

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to be issued. The learned counsel for petitioner / accused No.1 submitted that resolutions were made by the company and after taking permission of the bank with which the property was mortgaged it was sold. The learned counsel submitted that if at all the complainant

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has some grievance he can approach the company Board and in view of nature of dispute the learned Magistrate ought not to have taken cognizance and ought not to have issued process. It is submitted that civil suit is also filed by complainant bearing Special Civil Suit No.28 of 2011 in respect of land Gat No.25/1/1 and he has prayed for relief of direction to sell the property to him and he has contended that he has been in possession of the property. It is contended that the suit was filed on 17^th September, 2011 and after filing of the suit the complaint came to be filed. Learned counsel also submitted that the rights of the share holder cannot be more than the rights given under Articles of Association and the order of issue process needs to be

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set aside.

The learned counsel for petitioner placed reliance on some reported cases - (i) 2010 (8) SCC 775

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[Kishan Singh (D) Through L.Rs. V/s Gurpal Singh & Ors.], (ii) (2006) 6 SCC 736 (Indian Oil Corpn. V/s NEPC India Ltd. And others), (iii) 2003 Bom. C. R. (Cri.) 103 [Pyarelal Ramkishore Prajapati V/s State of Maharashtra & Others], (iv) 2000 (2) SCC 636 [ G. Sagar Suri V/s State of U.P.] and (v) 1994 (4) Bom. C. R. 483 – Aurangabad Bench [Ahshru S/o. Ramji Gaiwal and others V/s The State of Maharashtra and another] . On the other hand, learned counsel for the Respondent relied on the case of

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AIR 2012 S.C. 1007 [Lee Kun Hee and Ors. V/s State of U.P. And Ors. ]. There cannot be any dispute over the proposition made by the Apex Court in the cases cited supra. Whenever the allegations constitute offence and the dispute gives right also to take action in Civil Court for enforcement of rights both civil and criminal proceedings can go on. The main contention of the complainant is that false value of the property of the company was shown in the two sale deeds and the remaining amount is misappropriated by the accused.

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On the basis of these circumstances, the process has been issued. There are other allegations also which are already mentioned. It being a Regular Criminal Case, there will be evidence before charge. As the complainant is a share holder and his contention is that his wife was one of the Directors, they had interest in the affairs of the company and so it cannot be said that they were not deceived if the amount of the company is misappropriated by using aforesaid modus operandi. Opportunity needs to be given to them to substantiate their contentions. The civil action is entirely for different relief. In view of these circumstances, this Court holds that it is not possible to interfere in the order of issue process made by the learned J.M.F.C. against the petitioner.

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In the result, both the writ petitions stand dismissed.

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[T. V. NALAWADE, J.]

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Dt.12/12/2014 ans/1015N1018

Sambhaji S/O Balaji Karle v. Uddavrao S/O Jijaba Karle and Another

Case brief

What is this about?

What did the court decide?

Sambhaji S/O Balaji Karle v. Uddavrao S/O Jijaba Karle and Another

Case brief

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What did the court decide?

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