IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :
21. 02.2013 CORAM: THE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMY Crl. O.P. Nos. 23732 to 23737, 23905 to 23910, 23787, 23788, 23916, 27137 to 27139, 27936, 27961 and 28084 of 2012 and connected Miscellaneous Petitions. Kotak Mahindra Bank 36-38A, Nariman Bhavan, 227, Nariman Point, Mumbai-400 021,rep. by its Authorized signatory Mr.V.Bhaskaran. .. Petitioner/Accused in Crl.O.P.Nos.23732 to 23737 of 2012 Mr.V.Bhaskaran, Executive Vice President, Kotak Mahindra Bnak, 3rd Floor, "Ceebros Centre", No.39, Montieth Road, Chennai-600 008. .. Petitioner /Accused in Crl.O.P.Nos. 23905 to 23910/2012 Sambasivam Kailasam .. Petitioner in Crl.O.P.No.23787/2012 and/Accused No.2 in C.C.No.189/2012 M/s Zash Investment and Trading Company Pvt. Ltd., rep. by its authorized representative Mr.Sambasivam Kailasam, Doddakannelli, Sarjapur Road, Bangalor”
035. .. Petitioner in Crl.O.P.No.23788/2012/Accused No.1 in C.C.No.189 of 2012 Ms.Renuka Ramnath .. Petitioner in Crl.O.P.No.27137, 27138 and 27139/2012 1. ICIC Bank Limited ICIC Bank Towers Bandra Kurla Complex Mumba”
051.
2. P.Ananda Krishna Kuma .. Petitioners/Accused in Crl.O.P.Nos.23916, 27936 and 28084/2012 Rajeev Bakshi .. Petitioner in Crl.O.P.No.27961/2012 Vs. R.Subramanian .. Respondent/Complainant Prayer : Criminal Original Petitions filed under Section 482 of the Criminal Procedure Code, praying to quash the complaint in C.C.No.189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199 and 200 o”
2012. on the file of the Additional Chief Metropolitan Magistrate-EOW-1, Egmore, Chennai. Mr.P.H.Pandian Sr. Cl. for M/s P.H.Manoj Pandian .. For Petitioners in Crl.O.P.No.23787 of 2012 Mr.Amit Desai, Sr. Cl. for M/s.Anand Abdul Vinodh. .. For Petitioners in Crl.O.P.No.23788 of 2012 Mr.A.L.Somayaji, Sr. Cl. for Mr.Sivakumar & Suresh .. For Petitioners in Crl.O.P.No.23916 of 2012 and for M/s. Ramasubramanian Associates .. For Petitioners in Crl.O.P.Nos. 27137 to 27139/2012 27936, 27961 & 28084/2012 Mr.Karthik Seshadri, for M/s. Iyer & Thomas .. For Petitioners in Crl.O.P.Nos. 23732 to 23737, 23905 to 23910/12 Mr.I.Subramaniam, Sr.Cl. for Mr.Prakash Goklaney & Mr.Harshad P.Goklaney .. For Respondents in all Crl.O.Ps. O R D E R Held: If the Respondent/Accused resides beyond the jurisdiction of the Court, the Magistrate shall enquire into the case himself or direct investigation is to be made by a police officer or any other person he thinks fit, before summoning the accused. The Petitioner in Crl.O.P.Nos.23732 to 23737 of 2012 is the Accused No.1 in C.C.Nos.191, 194, 195, 196, 197, 198 of 2012, petitioner in Crl.O.P.Nos. 23905 to 23910 of 2012 is the Accused No.2 in C.C.Nos.192, 194, 195, 196, 197, 198 of 2012, petitioner in Crl.O.P.No.23787/2012 is the Accused No.2 in C.C.No.189 of 2012 and petitioner in Crl.O.P.No.23788 of 2012 is the Accused No.1 in C.C.No.189 of 2012, petitioners in Crl.O.P.Nos.23916, 27936 and 28084/2012 are the Accused in C.C.No.190 of 2012 and Accused No.1 in C.C.Nos. 191 and 193 of 2012, petitioner in Crl.O.P.No.27137 to 27139/2012 is the Accused No.2 in C.C.Nos.191 and 193 of 2012, and Accused in C.C.No.199 of 2012, and petitioner in Crl.O.P.No.27961/2012 is the Accused No.1 in C.C.No.200 of 2012 on the file of the Additional Chief Metropolitan Magistrate, EOW-1, Egmore, Chennai.
2. Petitioner viz., Kotak Mahindra Bank Ltd., is a Scheduled Bank and is carrying on business as a Bank having been granted a Banking License by the Reserve Bank of India and has established several branches all over the country. The Respondent is the Managing Director of a Company, M/s. Subhiksha Trading Services Ltd., (hereinafter termed as "the Company"). The said company was incorporated as a private Limited Company on 10.04.1997. It later became a public limited Company on 30.03.2005. The Company was involved in the business of Retail Trade and in the course of business established as many as 1000 retail outlets all over India. The Company had availed of credit facilities from the petitioner and several other 13 Banks. The total outstanding to Banks as of March 2009 itself was to the tune of over 800 Crores. Under the terms of the facilities, the Company drew down at various points up to the maximum limit of Rs.50 Crores. The company has repaid a sum of Rs.15 Crores to the petitioner. However, failed to pay the balance of Rs.35 Crores along with interest accrued thereon, to the tune of Rs.38,66,88,190.87 as on 17.01.2009 which still remain outstanding. As per the terms of the sanction the company was to route a minimum amount of Rs.20 Crores per month through the cash credit account maintained with the petitioner. The company has neglected and ignored the demands of the petitioner despite several demands and reminders sent by the petitioner and did not even pay the interest. As on 17.01.2009 a sum of Rs.38,66,88,190.87 was due and payable jointly and severally by the company and its managing director R.Subramanian together with additional interest at the rate of 2% per month at monthly rests from 16.01.2009.
3. The petitioner viz., Kotak Mahindra Bank Ltd., filed CP No.68 of 2009 and HCL Infosys Ltd., filed CP No.26/2009 and various other creditors filed petitions before the Company Court for winding up of the company viz., Subhiksha Trading Services Limited both for being unable to pay its debts and this Court vide order dated 31.03.2009 passed an ex parte order appointing a Provisional Liquidator and directed the advertisement of the petition. Immediately, the company filed appeals in OSA Nos. 84 & 93 of 2009 in which the Division Bench of this Court passed an order of stay of appointment of Provisional Liquidator on certain conditions. In the meanwhile the company had proposed a Scheme of Amalgamation with one Blue Green Constructions & Investments Limited. In which the petitioner had filed its objections to the scheme of Amalgamation on the ground that the same was a fraudulent scheme. The Amalgamation Scheme in C.P.Nos.239 and 240 of 2008 was dismissed by this Court by a detailed order dated 25.10.2010. Against the said order M/s. Blue Green Construction and Investment Ltd. and Subhiksha Trading Services Limited filed appeals in OSA Nos. 18 and 53 of 2011 and the same are pending. The company once again filed C.A. Nos. 132 and 133 of 2012 seeking permission to file a complaint under Section 195 of IPC in respect of the offences of the petitioner of giving false evidence and for such other reliefs.
4. Thereafter, Mr.Subramanian, is the Managing Director of M/s. Subbiksha Trading Services Ltd., (hereinafter referred to as 'STSL') has filed the above private complaints under Section 200 Cr.P.C. on the file of the Additional Chief Metropolitan Magistrate, EOW-1, Egmore, Chennai, against the petitioners/accused and the said complaints have been taken on file in C.C.Nos. 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199 and 200 of 2012 for the offence under Section 629 of the Companies Act, 1956.
5. In the Complaint it is stated that the Complainant had pioneered a India-centric model of retailing in which the stores operated by the said STSL, catered to the middle class persons by offering all day to day use items at much lower prices than those offered by other retailers. The complainant has been well recognised for his achievements and won various awards. Due to various issues arising out of inability to raise equity capital in the aftermath of the global liquidity crisis in 2008 and the non-receipt of earlier planned equity funds STSL had to suspend operations in January 2009. The first Accused company was an investor in STSL and was holding 10% of the equity share capital of STSL. 5(i) STSL had filed CP 23.of 2008 under Section 391-394 of the Companies Act for merger of the Complainant with another company. The first Accused company had given its consent for the said merger along with its consent for certain other arrangements proposed by the complainant. This Court dealing with the company matters ordered that the meeting of the shareholders of STSL be convened on 31.10.2008 to consider the scheme proposed. STSL had sent the the notice of the meeting along with the Attendance slip and proxy forms to the first accused. As the first accused was unable to attend the meeting in person the first accused had issued proxy in favour of the complainant to act on behalf of the first accused at the meeting of shareholders on 31.10.2008 and to vote at the meeting in respect of the shares of STSL held by the first accused. 5(ii) The proxy of the first accused had participated in the meeting and voted in favour of the scheme and the facts in this regard were set out in the minutes of the meeting filed by STSL before the company Court in the proceedings in CP 23.of 2008. In 2009 the first accused had informed STSL that it was withdrawing the consent to the Scheme of Amalgamation and thereafter the first accused had filed an affidavit in opposition to the scheme of amalgamation proposed on CP 23.of 2008 before this Court. In the affidavit in reply filed by the first accused through the second accused took a false stance that it is as a result of this delay in receipt of the Notice by this Objector that this Objector could neither attend the Court Convened Meeting nor appoint proxy to attend the same, as though no proxy was at all issued by the first accused in respect of the meeting dated 31.10.2008 in favour of the complainant. The learned counsel for the quash petitioners also took up a similar stance in the proceedings in the Court in respect of the said matter. This Court in its order dated 25.10.2010 passed an order stating that the learned counsel appearing for Zash Investment, also raised a dispute with regard to the claim of the transferor that the meeting of the members held on 31.10.2008 was attended by Zash. This contention stems from a contradiction between the contents of the report of the Chairman of the meeting and the contents of the counter affidavit filed by R.Subramanian. As such it is evident that the contention that the Proxy was not issued validly on behalf of the first respondent or that it had issued proxy only in blank and it was not intended for the meeting of 31.10.2008 in respect of the merger have all been held to be false by this Court. The denial of issue of proxy by the first accused amounted in effect to casting aspersions on the truthfulness of the minutes of the meeting filed by the complainant as the Chairman of the said meeting and the acts done by the complainant as the Proxy. It is now evident that contrary to its claim in the reply affidavit the fact that a valid proxy was given by the first accused and that there is no truth in the contention of the first accused that either the proxy form was not issued or was issued signed in blank in respect of the meeting details have all been determined by this Court and as there is no appeal filed in this regard by the accused the said finding has become final. 5(iii) The allegations in the complaint in C.C.No.192 2012 are:- The petitioners viz., M/s. Kotak Mahindra Bank represented by Mr.V.S.Bhaskaran filed Synopsis of Dates and Events dated 25.11.2011 during the course of winding up proceedings in C.P.No.68 of 2009, in which the petitioner have stated that the Company Petition was admitted on 28.08.2009. The petitioner filed Affidavits dated 30.06.2009 in M.P.Nos. 2 in O.S.A.Nos. 94 and 93 of 2009, in which the petitioners have stated that the Company Petition was admitted on 31.03.2009. So, there was a contradictory averments made by the petitioners in synopsis dated 25.11.2011 and the Affidavits dated 30.03.2009. Such a contradictory averments made by the petitioners are false and therefore, punishable under Section 629 of the Companies Act, 1956. 5(iv) The allegations in the Complaint in C.C.No.194 and 195 of 2012 are:- The petitioner filed C.P.No.68 of 2009 along with CA.Nos. 388 & 389 of 2009 seeking reliefs as set out therein. The petitioner has filed common Affidavits dated 06.03.2009 in both the Company Applications in which the petitioners has stated that R.Subramanian has floated several private limited companies to act as procuring agents of the STSL and has diverted the funds from STSL to the Companies. The petitioner believes that R.Subramanian being the master puppeteer has adopted a very clear scheme and has siphoned off huge amounts of monies to the accounts of various others companies such as Cash & Carry Wholesale Traders Pvt. Ltd., Custodial Services India Pvt., Ltd., Pentagon Trading Services Pvt. Ltd., Shevaroy Holiday Resorts Pvt. Ltd., Trias Trading Services Pvt. Ltd., etc., referred as his close associates and these entities are nothing but an alter ego of R.Subramanian and more than 800 Crore public money has been siphoned off by R.Subramanian and his associates. Such an averments made by the petitioners are directly false and no evidence of any nature have been produced in any manner by the petitioner. 5(v) The allegations in the complaint in C.C.Nos.196 and 197 of 2012 are:- The petitioner has filed an Affidavit dated 30.06.2009 in M.P.No.2 of 2009, in which the petitioner had filed a petition for winding up against the STSL and there has been large scale fraud purported on the the banks and secured creditors and because the securities were not available at all and were illusory. The petitioner further states that STSL had indulged in large scale fraud by entering into a Memorandum of Understanding with another company called Blue green Construction and investments Limited which is a shell company belonging to the man promoter of the STSL and overall the STSL has a diabolic fraud on its creditors who are banks. Such averments made by the petitioners are directly false and no evidence of any nature have been produced in any manner by the petitioner. 5(vi) The allegations in the complaint in C.C.No.198 of 2012 are:- STSL filed a CP.No.239 of 2008 for merger with another company in which petitioner has filed an objections dated 15.04.2009 and was set out as, the the objector believes that the promoters of the company viz., R.Subramanian and his associates have secreted the assets and as of date the security is illusory and in view of the fact that the books of account are all manipulated and have not been audited as required by law and this security is also illusory. The objector humbly submits that it has sought for a detailed investigation into the affairs of the STSL to see how monies to the tune of Rs.800 Crores have been diverted from the STSL by the management of the STSL. Such an averments made by the petitioners are directly false and no evidence of any nature have been produced in any manner by the petitioner. 5(vii) The allegations in the complaint in C.C.No.199 of 2012 are:- The accused had filed a reply dated 9.3.2010 through his counsel containing false statements stating that the company (STSL) did not indicate any financial strain until September 2008; that the accused resigned from the Board of STSL in January 2009; that there was a Board meeting on 22.11.2008 and that various decisions were taken there at and that the Board meeting was suppressed by the complainant; that the financial strain of STSL was made known to the accused only on 22.11.2008; that the last un-audited statement placed before the Board was as of 31st March 2008 and these subsequently turned out to be false and misleading. 5(vii) The allegations in the complaint in C.C.No.200 of 2012 are:- The accused had filed a reply dated 8.3.2010 through his counsel containing false statements stating that there was a Board meeting on 22.11.2008 and that various decisions were taken there at; that the proceedings under Sec.209A was an investigation pursuant to the petition filed by ICICI Venture.
6. The allegations against the fist accused is that the first Accused viz., Zash Investment and Trading Private Limited, has given consent letter dated 7.7.2008 for the merger of M/s. Subhiksha Trading Services Ltd., with M/s/ Blue Green Constructions & Investments Ltd.. Thereafter, Accused No.1 informed the complainant that the have withdrawn their consent letter it is a result of delay in receipt of the notice by them. Further allegation against the first accused is that the first accused was unable to attend the meeting in person therefore he has issued proxy in favour of the complainant on behalf of the Accused No.1 at the meeting of shareholders held by the complainant's company on at 10.00 a.m. on 3.1.10.2008 for the purpose of Scheme of Amalgamation proposed to be made between the complainant's company and Blue Green Constructions & Investments Limited. The Accused in the Affidavit filed in support of the Company Application Nos. 388 and 389 of 2009 in C.P.No.68 of 2009 dated 6.3.2009 are false and false averments have been made deliberately to cause prejudice against the complainant. The accused after having set out in the affidavits in support of M.P's in OSA Nos. 84 and 93 of 2009 dated 30.6.2009, that CP 6.of 2009 was admitted on 31.3.2009 whereas it was admitted on 28.8.2009.
7. The contention of the learned senior counsel appearing for the quash petitioners is that in the report filed by the complainant, appointed as the Chairman for the meeting of the members convened on 31.10.2008, he has indicated that five equity shareholders including the first accused attended the meeting. Whereas in the counter affidavit filed by the complainant to the application taken out by the first accused, he had taken a stand that the first accused did not attend the meeting. Hence there is a contradiction between the contents of the report of the Chairman of the meeting and the contents of the counter affidavit filed by the complainant.
8. The contention of the learned senior counsel appearing for the quash petitioners is that the complaint ought not to have been taken on file by the learned Additional Chief Metropolitan Magistrate, in view of Section 621 r/w 629 of the companies Act three persons can be given complaint viz., the Registrar, or a shareholder of the company, or a person authorized by the Central Government in that behalf. The complainant does not come under any of the three categories. Hence, the complaint taken on file itself is not in accordance with law and it has to be quashed.
9. The next contention of the learned senior counsel appearing for the quash petitioners is that in the complaint they proceed as if they have given false affidavit and proxy on which the complaint has not been proceed which is not correct and this fact has already been decided in the Company Petition by the Company Court and thereafter after 1 = years later the present complaint has been filed and the learned Additional Chief Metropolitan Magistrate has no jurisdiction to entertain the said complaint. Hence, the complaint has to be quashed.
10. The learned senior counsel appearing for the complainant contended that private complaint has been presented under Section 200 Cr.P.C. and it has been mistakenly taken on file by the learned Additional Chief Metropolitan Magistrate under Section 202 Cr.P.C. Admittedly, the parties are residing other than the jurisdiction of the learned Additional Chief Metropolitan Magistrate. Under such circumstances, the learned Additional Chief Metropolitan Magistrate before taking the complaint on file, ought to have issued summons to the Respondent/Accused for their appearance and enquired into the matter. Further, once the matter has been ordered to be enquired under Section 621 r/w 629 of the Companies Act it cannot be taken on file by the learned Additional Chief Metropolitan Magistrate in view of the ratio laid down by the Apex Court in S.L.P.(Crl.) Nos. 9098/2012 dated 03.12.2012 in the case of National Bank of Oman vs. Barakara Abdul Aziz & Anr. As per the ratio laid down by the Apex Court, his Court cannot give finding under Section 621 r/w 629 of the Companies Act. Hence, he prays that the matter has to be remitted back to the learned Additional Chief Metropolitan Magistrate for passing fresh orders as contemplated under amended Section 202 Cr.P.C.
11. From the perusal of the records it is seen that the complainant has filed private complaints under Section 200 Cr.P.C. against the quash petitioners and the said complainants have been taken on file by the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai under Section 202 Cr.P.C. Admittedly, the parties are residing beyond the jurisdiction of the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai. As per Section 202 Cr.P.C. the learned Additional Chief Metropolitan Magistrate ought to have ordered summons to the respondents/accused and thereafter he ought to have enquired into the matter. Section 202 Cr.P.C., runs as follows:- "202. Postponement of issue of process. (1) Any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by, a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made, - (a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions or (b) Where the complaint has not been made by a court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Court on an offer in charge of a police station except the power to arrest without warrant." "The amended sub-section (1) of section 202 of the Code of Criminal Procedure (the CrPC) states that where the accused resides beyond the jurisdiction of the Court, the Magistrate shall enquire into the case himself or direct investigation is to be made by a police officer or any other person he thinks fit, before summoning the accused. The Delhi High Court has held that the procedure prescribed by the amendment for conduction of inquiry was chiefly for cases where the offence is sought to be proved only by way of oral testimony as there are more chances of filing false complaints in such cases. However, where the offence is sought to be proven through documents, there is no necessity to conduct a full-fledged inquiry particularly when the documents per se establish the commission of such offence." Therefore, as evidenced from the reading of the complaint, the procedure contemplated under Section 202 Cr.P.C. has not been adopted by the learned Additional Chief Metropolitan Magistrate, E.O.I, Egmore, Chennai. Therefore, it requires scrutiny of the learned Additional Chief Metropolitan Magistrate once again cannot be denied.
12. The contention of the learned senior counsel appearing for the quash petitioners is that before considering this aspect this Court has to see under what offence the case has been taken on file. Then only the procedure contemplated under Section 202 Cr.P.C. has to be looked into by the Court concerned.
13. As per the contention of the learned senior counsel appearing for the complainant, the offence made out against the quash petitioner is giving false affidavit regarding the proxy issued by him in favour of the complainant. That is the reason he has filed this private complaint under Section 200 Cr.P.C. and it has been taken on file by the learned Additional Chief Metropolitan Magistrate under Section 202 Cr.P.C.
14. As per the contention of the learned senior counsel for the quash petitioners as per Section 621 of the Act, the complainant is not a competent person and he has no locus standi to file such a private complaint before the learned Additional Chief Metropolitan Magistrate. Section 621 runs as follows: " S.621.(1) No court shall take cognizance of any offence against this Act, which is alleged to have been committed by any company or any officer thereof, except on the complaint in writing of the Registrar, or of a shareholder of the company, or of a person authorized by the Central Government in that behalf. Provided that nothing in this sub-section shall apply to a prosecution by a company of any of its officers: Provided further that the court may take cognizance of offence relating to issue and transfer of securities and non-payment of dividend on a complaint in writing by a person authorized by the Securities Exchange Board of India...." As per Section 621 of the Act it is very clear that only three persons can be given complaint viz., the Registrar, or a shareholder the company, or a person authorized by the Central Government in that behalf.
15. Now we have to see whether giving false evidence at the time of winding up is an offence as per Section 629 of the Companies Act, 1956? So far as section 629 of the Companies Act is concerned, the Company Court by order dated 25.10.2010 passed in Company Petition Nos. 239 and 240 of 2008 decided the said issue in the following lines: "(ii) Whether there was participation by Zash:- 48. The learned counsel appearing for Zash Investment, also raised a dispute with regard to the claim of the transferor that the meeting of the members held on 31.10.2008 was attended by Zash. This contention stems from a contradiction between the contents of the report of the Chairman of the meeting and the contents of the counter affidavit filed by R.Subramanian.
49. In the report filed by R.Subramanian, appointed as the Chairman for the meeting of the members convened on 31.10.2008, he has indicated in Annexure 1 that five equiry shareholders namely: (i) Cash and Carry Wholesale Traders Private Limited, (ii) R.Subramanian, (iii) G.S.Ramaswami, (iv) Mohana Ramaswami, and (v) Zash Investment and Trading Company Private Limited attended the meeting. However, in the counter affidavit filed by R.Subramanian to the application taken by Zash Investment, he had taken a stand that Zash Investment did not attend the meeting. But, this contradiction was later explained in the form of an affidavit.
50. .... according to Zash, their authorisedrepresentative had handed over signed unfilled proxy forms to R.Subramanian. Though it was contented by the learned counsel for Zash that the proxy form is of no value, as it did not contain any indication of the nature of the meeting, a perusal of the proy form shows that there was a clear mentioning of the date, time, venue and the purpose of the meeting. Therefore, today, Zash Investment cannot be heard to contend that there was no participation on their behalf in the Court convened meeting of the members held on 31.10.2008.
51. As a matter of fact, even as early as on 13.02.2009, Zash Investment had issued a legal notice to the Managing Director of the transferor. In the said notice, all that Zash Investment sought to do, was only to withdraw the consent. If there was actually no participation, as contended by them, there could have been no consent and consequently, there would have been no occasion to withdraw the consent. Therefore, I reject the contention of the learned counsel for Zash Investment that there was no participation on their behalf, in the Court convened meeting held on 31.10.2008. " If at all the quash petitioners are aggrieved by the said findings given by the learned Company Court, the only remedy open to them is elsewhere and not by way of filing these Criminal Original Petitions. Unless the said finding is set aside by way of challenge, now they cannot file these Criminal Original Petitions.
16. Admittedly, this aspect has already been considered by the Company Court. Under this juncture, I am of the view that this Court has to consider as to whether both the issues can be clubbed together or Section 202 Cr.P.C. alone has to be considered. In the judgment of the Apex Court in S.L.P.(Crl.) Nos. 9098/2012 dated 03.12.2012 in the case of National Bank of Oman vs. Barakara Abdul Aziz & Anr. similar case regarding filing of the private complaint by the Bank against its customer for the alleged cheating, the trial Court without adopting the procedure contemplated under Section 202 Cr.P.C. has taken on file the complaint and thereafter the matter reaches upto the High Court. The High Court noticed that the accused is a resident of District Dakshin Kannada, Karnataka and hence, the CJM ought to have followed the procedure laid down in Section 202 Cr.P.C. The High Court, therefore, set aside the order dated 25.2.2011 issuing the process under Sections 418 and 420 of the I.P.C. by the C.J.M. Ahmednagar. Aggrieved by the said order the Bank has preferred special leave petition. The operative portion of the decision rendered by the Apex Court runs as follows:- "We are of the view that the High Court has correctly held that the above mentioned amendment was not noticed by the C.J.M. Ahmednagar. The C.J.M. had failed to carry out any enquiry or ordered investigation as contemplated under the amended 202 of the Cr.P.C. Since it is an admitted fact that the accused is residing outside the jurisdiction of the C.J.M. Ahmednagar, we find no error in the view taken by the High Court. All the same, the High Court instead of quashing the complaint, should have directed the Magistrate to pass fresh orders following the provisions of Section 202 of the Cr.P.C. Hence,we remit the matter to the Magistrate for passing fresh orders uninfluenced by the prima facie conclusion reached by the High Court that the bare allegations of cheating do not make out a case against the accused for issuance of process under Section 418 or 420 of I.P.C." 17. At this juncture the learned senior counsel appearing for the quash petitioners relied on a judgment reported in Viswa Mitter Vs. O.P.Poddar and Ors. (AIR 198.SC
5) in which the learned Magistrate after a preliminary enquiry, directed to issue process to the accused. The accused moved revision petition before the High Court with a request to quash the proceedings. The High Court accepted the revision petition on the narrow ground that the order issuing the process is not a speaking order and directed the learned Magistrate to consider the question of issuing process afresh. When the matter came back to the learned Magistrate, he after hearing the parties held that no case was made out for issuing the process and proceeded to dismiss the complaint. The complainant again moved the High Court by way of Revision Petition, which was dismissed in limine. Thereafter, the complainant moved the Supreme Court by way of Appeal. Operative portion of the judgment runs as follows:- "Even with regard to offences under the Indian Penal Code, ordinarily, anyone can set the criminal law in motion but the various provisions in Chapter XIV prescribe the qualification of the complainant which would enable him or her to file a complaint in respect of specified offences and no Court can take cognizance of such offence unless the complainant satisfies the eligibility criterion, but in the absence of any such specification, no Court can throw-out the complaint or decline to take the cognizance on the sole ground that the complainant was not competent to file the complaint".
18. This Court is of the view that since there is a judgment by the Apex Court in S.L.P.(Crl.) Nos. 9098/2012 dated 03.12.2012 in the case of National Bank of Oman vs. Barakara Abdul Aziz & Anr. holding that both Section 202 Cr.P.C. and Section 621 of the Companies Act could not be clubbed together and 202 Cr.P.C. has not been followed by the Magistrate, the proceedings have been quashed and the matter was remitted back to the Magistrate for fresh enquiry.
19. In the case on hand also, the learned Additional Chief Metropolitan Magistrate, has not followed the procedure contemplated under Section 202 Cr.P.C., Therefore, this Court in obedience to the proposition laid down by the Supreme Court in the above SLP, is of the view to quash the proceedings of the learned Additional Chief Metropolitan Magistrate E.O.I, Egmore, Chennai in C.C.No.189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199 and 200 o”
2012. and are quashed accordingly and the matter is remitted back to the learned Additional Chief Metropolitan Magistrate, E.O.II, Egmore, Chennai with a direction to follow the procedure contemplated under Section 202 Cr.P.C., coupled with the finding given by the Company Court in C.P.Nos. 239 and 240 of 2008 dated 25.10.2010 in this regard and to decide locus standi of the complainant to file such a private complaint before the learned Additional Chief Metropolitan Magistrate under Section 621 and 629 of the Companies Act 1956. The learned Additional Chief Metropolitan Magistrate on going through the allegations in the complaint, things fit to take the complaint on file, issue summons to the accused under Section 202 Cr.P.C. and thereafter hear the objections of both sides in writing and proceed with the matter. If he finds that no offence is made out against the quash petitioners, it is for him to proceed with the matter in accordance with law.
20. With the above observation, all the Criminal Original Petitions are disposed of. Consequently, connected M.Ps. are closed. gr To 1. The the Additional Chief Metropolitan Magistrate-EOW-1, Egmore, Chennai.
2. The the Additional Chief Metropolitan Magistrate-EOW-II, Egmore Chennai