The High Court condoned a 265-day delay in re-filing an appeal under Section 378(4) Cr.P.C but ultimately dismissed the appeal, upholding the acquittal of a company and its director under Section 628 of the Companies Act, 1956.
Delay in re-filing appeal condoned; appeal against acquittal dismissed.
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Crl.M.No.291-MA of 2010 (O&M)
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
Crl.M.No.291-MA of 2010 (O&M)
Date of decision: 17.11.2010
Registrar of Companies, Punjab
….Appellant
Vs.
JM/s Grand Hospital Pvt Ltd and another
….Respondents
CORAM: HON’BLE MR. JUSTICE JASWANT SINGH
Present: Mr. Gaurav Singh Hooda, Advocate for the appellant. Ms. Nisha Jaiswal, Advocate for the respondents.
Jaswant Singh, J
Crl.M.No.11974 of 2010
Notice of the application for condonation of 265 days delay in re-filing the leave to appeal under Section 378 (4) Cr.P.C was issued to the respondents but no reply has been filed.
A perusal of the record reveals that the complaint dated 20.9.2001 filed under Section 628 of the Companies Act, 1956 (hereinafter to be referred as “Act of 1956”) by the appellant was dismissed by learned Chief Judicial Magistrate, Kapurthala vide judgment dated 4.10.2008. Feeling aggrieved, the appellant filed the present appeal on 23.12.2008 but Registry raised certain objections and thereafter the same was re-filed on 20.2.2009, 3.3.2009 and lastly it was re-filed on 28.1.2010. In this process, a delay of 265 days has occurred in re-filing the appeal.
Keeping in view the averments made in the application, the same is allowed and the delay in re-filing the application under Section 378
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Crl.M.No.291-MA of 2010 (O&M)
(4) for grant of leave to appeal is condoned.
Crl.M.No.291-MA of 2010
Applicant-appellant has filed the present application under Section 378(4) of the Cr.P.C seeking leave to appeal against the judgment dated 4.10.2008 passed by the learned Chief Judicial Magistrate, Kapurthala vide which the complaint dated 20.9.2001 filed under Section 628 of the Act of 1956 by the complainant-appellant had been dismissed by observing that the complainant has failed to prove its case beyond reasonable doubt thereby acquitting the respondent.
The brief facts are that accused/respondent No.1-M/s Grand Hospital Private Ltd was incorporated on 19.3.1991 under the Act of 1956 and is having its registered office at Phagwara, District Kapurthala in Punjab whereas accused/respondent No.2 is the Managing Director of respondent No.1-company. An inspection was carried out by Sh. O.P. Sharma, Assistant Registrar of Companies, Jalandhar and the report in this regard is Ex.R.1. It is further alleged that during inspection, it was revealed that the Company filed a Form No.2 dated 9.2.1994 for allotment of 1600 shares made on 12.1.1994 and the same was registered on 3.8.1998. It was further found that no Board Meeting for allotment of said shares was held on 21.1.1994 and hence, Form No.2 cannot be treated as a valid document. After obtaining sanction for prosecution against the company and its Directors, the complaint was filed. Notice of the same was issued to the accused-respondents to which they pleaded not guilty and claimed trial.
In order to prove the case of the complainant-appellant, Sh. O.P. Sharma was examined as CW1 and Parveen Kumar Batra as CW2. Respondents-accused denied the allegations of the prosecution under
Crl.M.No.291-MA of 2010 (O&M) #3#
Section 313 Cr.P.C and pleaded innocence stating that no loss has been caused to the share holders of the Company and proper procedure was followed. Complainant contended that the case is duly proved against the accused-respondents on the basis of extract of inspection report Ex.R.1 but on the other hand, it was contended by the respondents that photo copy of reply dated 17.1.2001 (Ex.R.1), which is the only basis for prosecution of the accused-respondents is not even admissible in law and, therefore, the complaint is liable to be dismissed.
It was further contended that so far as Form No.2 is concerned, neither its original nor copy of the same has been placed on file as Ex.R.1 and it is only the extract of inspection report (Ex.R.1), which is the sole basis for the prosecution of the respondents as witness of the prosecution has admitted that the complete inspection report has not been placed on record by the complainant for the reasons best known to them.
CW2-Parveen Kumar Batra has also admitted in his cross examination that he was not present at the time of alleged inspection. Moreover, there is nothing on record to prove that any loss has been caused to the share holders and further there is neither complaint against the accused-respondents for non-filing of an yearly balance sheet nor against the holding of meeting of the Board of Company regularly during the year 1994. Admittedly, respondent No.1 is a private Limited company and there were four share holders of the Company as per memorandum of Association and it is admitted by CW1 that at the time of issuance of new shares, the signature of Director and Managing Director are to be obtained only if there is any resolution of the Company.
Keeping in view the facts and circumstances of the case, this
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Crl.M.No.291-MA of 2010 (O&M)
Court feels that both the accused-respondents have rightly been acquitted by the learned trial Court vide its judgment dated 4.10.2008. The law is well settled by Hon'ble the Supreme Court that even if two views are possible, then also in a very rare and exceptional circumstances, an interference is required against an order/judgment of acquittal and that too only if one view is possible for the conviction of the acquitted persons.
Keeping in view the facts and circumstances discussed here-inabove, this Court does not find any justification to interfere into the impugned judgment of acquittal dated 4.10.2008 passed by the learned Chief Judicial Magistrate, Kapurthala.
Consequently, application under Section 378(4) Cr.P.C for leave to appeal is dismissed.
November 17, 2010 ( JASWANT SINGH ) manoj JUDGE
3 issues framed by the court
Whether the delay of 265 days in re-filing the appeal under Section 378(4) Cr.P.C should be condoned.
Whether the High Court should interfere with the judgment of acquittal under Section 628 of the Companies Act, 1956.
Whether the appreciation of evidence by the trial court justifying the acquittal warrants interference on appeal.
2 provisions across 2 enactments
Registrar of Companies, Punjab
JM/s Grand Hospital Pvt Ltd
Managing Director
Jaswant Singh
Manoj
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
