Calcutta High Court (Appellete Side)
Meeta Bansal vs The State Of West Bengal & Another on 6 September, 2024
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Ajay Kumar Gupta
C.R.R. 858 of 2017
With
CRAN 1/2017 (Old CRAN 1879/2017)
With
CRAN 9/2020 (Old CRAN 1201/2020)
With
CRAN 10/2021
With
CRAN 11/2022
With
CRAN 12/2023
With
CRAN 13/2023
With
CRAN 14/2023
With
CRAN 15/2023
With
CRAN 16/2023
With
CRAN 17/2023
Meeta Bansal
Vs.
The State of West Bengal & Another
2
For the Petitioner : Mr. Y. J. Dastoor, Ld. Sr. Adv.
For the Opposite Party No. 2 : Mr. Ayan Bhattacharya, Adv.
Mr. Somopriyo Chowdhury, Adv.
Ms. Nairanjana Ghosh, Adv.
Mr. Anurag Modi, Adv.
Lastly heard on : 24.06.2024
Judgment on : 06.09.2024
Ajay Kumar Gupta, J:
1. By filing this Criminal Revisional application under Section
482 of the Code of Criminal Procedure, 1973, the petitioner has
prayed for quashing of the proceedings being Case No. C/1623 of
2016 filed under Section 452 of the Companies Act, 2013 read with
section 200 of the CrPC, pending before the Learned Chief Judicial
Magistrate, Alipore, South 24 Parganas. Petitioner has also prayed for
setting aside the order dated 08.02.2017. By the said order dated
08.02.2017, the Learned Magistrate rejected the prayer for discharge
of the petitioner on the ground that prayer for discharge by the
3
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 Shareholders thereof.
Company was actually held by the family members.
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2c. It is the contention of the petitioner that the company has
25, 60,000 shares out of which Shri Sunil Bansal holds 24,59,000
shares and the petitioner used to hold a meagre amount of 1,000
shares as per the Annual Return filed by the company for the year
2013-2014. However, as per the Annual Return filed by the Opposite
Party No. 2/Company for the year 2014-2015, the shareholding of
Shri Sunil Bansal remained the same whereas the shareholding of
the petitioner was reduced to nil. The petitioner being the wife of Shri
Sunil Bansal was merely a name lender to the Opposite Party No.
2/Company which was exclusively administered and managed by the
said Shri Sunil Bansal.
2d. It is further contention of the petitioner that due to the
wayward habits of Shri Sunil Bansal, his associates continuously
neglected and inflicted cruelty upon the petitioner on or about
September, 2015. Shri Sunil Bansal voluntarily deserted the
petitioner and left the matrimonial home. He started residing in
another apartment at Silver Springs, Kolkata 700 105. Shri Sunil
Bansal also used to assault her as such the petitioner sustained
multiple blunt traumas and was treated at B.P. Poddar Hospital and
Medical Research Ltd, Kolkata. Over such incident, the petitioner
5
lodged a written complaint at New Alipore Police Station against Shri
Sunil Bansal but the same was recorded only as General Diary Entry.
2e. On 25.02.2016, the Petitioner filed an application under
Section 144(2) of the CrPC before the learned 1st Executive
Magistrate, Alipore, South 24 Parganas being M.P. Case No. 483 of
2016 and another application under Section 107 of the CrPC being
M.P. Case No. 494 of 2016 against Shri Sunil Bansal. Moreover, on
10.03.2016 the petitioner also filed an application under Sections
12/18/19/20/22 of the Protection of Women from Domestic Violence
Act, 2005 being No. C/999 of 2016 against Shri Sunil Bansal
because he started treating her differently.
2f. On 16.03.2016, the petitioner lodged a written complaint at
New Alipore Police Station and pursuant thereto, a New Alipore Police
Station Case No. 95/2016 dated 19.03.2016 under Sections
498A/323/327/406/506/34 of the IPC was registered against the
said Shri Sunil Bansal and two others.
2g. The petitioner had also lodged another written complaint
before Cyber Police 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.
6
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 petitioner approached before this Hon'ble Court seeking
quashing of the proceedings as well as setting aside the orders
passed thereof. Under the above circumstances, the instant Criminal
Revisional application came up before this Bench for consideration.
SUBMISSION ON BEHALF OF THE PETITIONER:
3. Mr. Dastoor, learned senior counsel appearing on behalf of
the Petitioner, submitted that the present petitioner is the wife of Shri
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Sunil Bansal. Both were the Directors of a Company, namely, Lexus
Exports Private Limited/Opposite Party No. 2 herein. The said
Company was closely held by family. Both the husband and wife were
residing in a flat owned by Shri Sunil Bansal situated at 671, Block
O, New Alipore, Kolkata 700 053. But, due to matrimonial discord
and several cases pending between the parties, Shri Sunil Bansal, in
the name of the Company, has initiated a complaint under Section
452 of the Companies Act, 2013 read with Section 200 of the CrPC
only to take revenge and to harass the petitioner praying therein to
take cognizance of offence under Section 452 of the Companies Act,
2013 and issued process against the petitioner and further graciously
placed to direct the accused person to return the Honda Jazz Car, the
television sets, laptops, desktop computers, split air conditioners and
room conditioners etc. within time fixed by the learned Court under
Section 452 (2) of the Companies Act, 2013.
3a. It is further submitted that prior to lodging of the said
complaint by the authorised representative of the Company on 16th
March, 2016, the present petitioner had lodged a complaint against
her husband and two others to the effect that on or about 12th
February, 2016, when the petitioner was conducting a search
pertaining to the public documents of the said Companies on the
8
official website of the Registrar of Companies, the petitioner became
shocked when she found four letters, all dated 28th December, 2015
purportedly issued under her name. Letterhead and bearing her
scanned signature over there, have been addressed to the Board of
Directors of each of the five Companies, namely, Stilton Designs Pvt.
Ltd, Kautilya Tie-Up Pvt Ltd, Saras Vanijya Pvt. Ltd, Nilratan Dealers
Pvt. Ltd. and Lexus Export Pvt. Ltd., the opposite party no. 2,
whereby the petitioner has purportedly tendered her resignation as a
Director of the five Companies with immediate effect. Such 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.
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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, Chartered Accountant, holding
Membership No. 55580 of Deepak Agarwal Associates, 156A, Lenin
Sarani, 1st floor, Room No. F - 84, Kamalalaya Centre, Kolkata - 700
013, with sole intention of unlawfully removing her as a Director from
the said Companies and causing wrongful loss to her.
3e. The husband Mr. Sunil Bansal, Anand Jajodia and Deepak
Agarwala have conspired and misappropriated the shares which have
been entrusted upon them by her in good faith. The said accused
persons have misappropriated the said shares without her consent or
knowledge. She neither tendered any resignation letter nor
authorised any person whatsoever to write any such letter on her
behalf. Be that as it may, she is now no more Director of the
Companies. Therefore, no case under Section 452 of the Companies
Act, 2013 can be instituted against her because Section 452 of the
10
Companies Act, 2013 is applicable only against an officer or employee
of the Company who is still in employment on the date of institution
of the case and wrongfully obtained possession of property of the
Company and withholding the same. The learned CJM, Alipore had
erroneously rejected the prayer for discharge vide order dated
08.02.2017. Accordingly, the said impugned order dated 08.02.2017
is liable to be set aside.
3f. It is further argued that those items are not lying with the
petitioner. Items, which have been asked to return by the Company,
are lying in the flat which is owned by Mr. Sunil Bansal, where the
petitioner is residing as wife of Mr. Sunil Bansal. Petitioner is not
bound to return those articles as such the proceeding is apparently
illegal and liable to be quashed otherwise it would be an abuse of
process of law. In such circumstances, Hon'ble High Court is not
powerless to exercise its inherent power or jurisdiction to quash the
said proceeding.
3g. It was further submitted that though the disputes between
the petitioner and her husband and other persons are actually
different in the nature and same would come within the civil disputes
but the opposite party no. 2 tried to colour the civil disputes into the
11
criminal dispute. Therefore, only on such score, the entire proceeding
is liable to be quashed.
3h. It was further argued that the Hon'ble Supreme Court, time
and again, reminds the Hon'ble High Courts while considering the
case of such nature, Court has to be extremely careful and cautious
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:
12
i. Abhishek Vs. State of Madhya Pradesh1;
ii. State of Haryana and Others Vs. Bhajan Lal and Others2;
iii. Naresh Kumar & Anr. Vs. The State of Karnataka & Anr.3
iv. Madhavrao Jiwaji Rao Scindia & Anr. Vs. Sambhajirao
Chandrojirac Angre & Ors.4
v. Jitha Sanjay and Others vs. State of Kerala and Anr.5
SUBMISSION ON BEHALF OF THE OPPOSITE PARTY NO. 2:
4. Per contra, Mr. Bhattacharya, learned counsel representing
the Opposite Party No. 2 has opposed the arguments advanced by the
learned counsel appearing on behalf of the petitioner and has
vociferously argued and submitted that the matrimonial discord
between the husband and wife is totally different issue and such
disputes have no way connected with the offence punishable under
Section 452 of the Companies Act, 2013. She had resigned from the
Company voluntarily. The complaint under Section 452 of the
Companies Act, 2013 read with Section 200 of Cr.PC was filed by the
authorised agent of the Company, Mr. Kesbananda Mukherjee when
1
2023 SCC OnLine SC 1083;
2
1992 SCC (Cri) 426, 1992 Supp (1) SCC 335;
3
2024 INSC 196;
4
JT 1988 (1) S.C. 279;
5
2024/KER/42293.
13
she fails to return the articles belonging to the Company. The Board
of Directors of Lexus Exports Private Limited in its meeting held on
30th March, 2016, authorising Mr. Kesbananda Mukherjee to take all
legal steps with regard to the legal proceeding to be initiated by the
Company before the Learned Chief Judicial Magistrate, Alipore under
the provision of the Companies Act, 2013 against Smt. Meeta Bansal,
petitioner herein and in all connected proceeding including
proceeding and appeal in the Hon'ble High Court, District Courts and
all other judicial forum etc. Accordingly, the Director of the Company
Mr. Kesbananda Mukherjee has filed the said complaint before the
learned CJM, Alipore under the provision of Section 452 of the
Companies Act, 2013 when the petitioner failed to return the articles
which were purchased in the name of the Company. Despite repeated
oral requests and 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. were provided for the use of Managing Director, Shri
Sunil Bansal to utilise by him at his residence at 671, Block - O, New
Alipore, Kolkata 700 053 but now those items are utilising by the
petitioner as such the Company is entitled to receive such items back
so that the same may be utilised for furnishing elsewhere. The
Company has also lodged written complaint to the Officer-in-Charge,
14
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 for the welfare and interest for the
company's work. But, no fruitful result comes out. Having no other
alternative, the company had been compelled to file a complaint
15
through authorised agent. Accordingly, learned Court below
entertained the said complaint and took cognizance under Section
452 of the Companies Act, 2013 and issued process against her.
Accordingly, the instant Criminal Revisional application has devoid of
merits and liable to be dismissed at the threshold.
4b. Learned counsel also placed reliance upon the judgments
delivered in the following cases to support his contention that she is
bound to return those articles to the Company.
i. Aniruddha Khanwalkar Vs. Sharmila Das & Others6;
ii. Dilbag Rai Vs. State of Haryana and Others7;
iii. Alka Bapu Gund Vs. Prakash Kanhaiyalal Kankaria8;
iv. Hooghly Mills Company Limited Vs. State of West Bengal and
Another9.
DISCUSSION AND FINDINGS OF THIS COURT:
5. It is an admitted fact that both petitioner and Shri Sunil
Bansal are legally married wife and husband. Both were the Directors
of the Company, the Lexus Exports Private Limited. Now, she is no
6
2024 INSC 342;
7
(2019) 16 SCC 736;
8
(2017) 11 SCC 108;
9
(2020) 18 SCC 568.
16
more Director of the Company. Petitioner's allegation is that husband,
Mr. Sunil Bansal had conspired and connivance with Anand Jajodia
and Deepak Agarwala misappropriated the shares which have been
entrusted upon them by her in good faith. They have misappropriated
the said shares without her consent or knowledge. She has, at no
point of time, written any letters to the Board of Directors of any of
the five Companies, namely, 1. Stilton Designs Pvt. Ltd., 2. Kautilya
Tie-Up Pvt. Ltd., 3. Saras Vanijya Pvt. Ltd., 4. Nilratan Dealers Pvt.
Ltd. including the Lexus Exports Private Limited. She has neither
tendered 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, nor issued by her and/or written
under her instructions or authorization.
6. As per allegation, the said documents have been falsely and
fraudulently fabricated by her husband, Mr. Sunil Bansal with
conspiracy and connivance with Mr. Anand Jajodia and Mr. Deepak
Agarwala, with sole intention of unlawfully removing her from the
post of Director from the said Companies and causing 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
17
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 his
possession, wrongfully withholds it or knowingly
applies it for the purposes other than those expressed
or directed in the articles and authorised by this Act,
he shall, on the complaint of the company or of any
member or creditor or contributory thereof, be
18
punishable with fine which shall not be less than one
lakh rupees but which may extend to five lakh rupees.
(2) The Court trying an offence under sub-section (1)
may also order such officer or employee to deliver up or
refund, within a time to be fixed by it, any such
property or cash wrongfully obtained or wrongfully
withheld or knowingly misapplied, the benefits that
have been derived from such property or cash or in
default, to undergo imprisonment for a term which
may extend to two years:
Provided that the imprisonment of such officer or
employee, as the case may be, shall not be ordered for
wrongful possession or withholding of a dwelling unit,
if the court is satisfied that the company has not paid
to that officer or employee, as the case may be, any
amount relating to-
(a) Provident fund, pension fund, gratuity fund or
any other fund for the welfare of its officers or
employees, maintained by the company;
(b) Compensation or liability for compensation
under the Workmen's Compensation Act, 1923 (19 of
1923) in respect of death or disablement."
8. It is incumbent upon this Court to ascertain whether the
Petitioner has wrongfully withheld the Companies' articles for her
personal use or not?
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9. Petitioner is now no more Director of the Company. From the
documents of the Company, it reveals that the Company had
purchased aforesaid articles and was provided for the use of
Managing Director, Shri Sunil Bansal. He utilised those articles at his
residence at 671, Block - O, New Alipore, Kolkata 700 053 but now
the Company wanted those items back to utilise the same for
furnishing elsewhere.
10. The Company has further 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 and 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. 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.
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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 now she is using
exclusively for her personal use.
12. Earlier, both petitioner and Shri Sunil Bansal used to reside
together as wife and husband but now Mr. Sunil Bansal is residing
separately in another apartment at Silver Springs, Kolkata 700 105
leaving the residence situated at 671, Block - O, New Alipore, Kolkata
700 053 due to matrimonial discord. The residence belongs to Mr.
Bansal. So, question of withholding those articles by the petitioner
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wrongfully and returning those items by her to the Company does not
arise prima facie because she is residing in the said flat as wife of Mr.
Bansal. She has every right to use the residence of Mr. Bansal
together with fitting and fixtures as a wife. She has no conspicuous
possession of those articles. The petitioner is only a mere user of
those articles along with Mr. Sunil Bansal, who is still one of the
Directors of the Company. It is true that Mr. Sunil Bansal is not
residing now with her but it does not mean that he left the said flat
forever and it is also not declared by Mr. Sunil Bansal that he would
not come in the said flat. All the articles claimed by the Company are
still in the custody/in the flat belonging to Mr. Sunil Bansal.
Petitioner is not the exclusive user of those articles. Furthermore, she
has already filed a case under the Protection of Women from
Domestic Violence Act, 2005 against her husband and same is
pending before the Learned Court below. He cannot remove her from
the said residence unless Court's Order. Furthermore, articles which
were purchased by the Company for the use of Sri Sunil Bansal, is
still a Director of the Company as such question of wrongfully
obtaining possession or holding Company's articles by the petitioner
prima facie found incorrect.
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13. So far as the vehicle is concerned, the Honda Jazz Car (white
colour) bearing Registration No. WB- 06H-4556, Engine No. L 12B
14700693 and the Chassis No. MAKGG 173JEN 200164 is in custody
of the petitioner and she is using it exclusively for her personal use.
Petitioner is no more Director of the Company at this stage. Hence,
she cannot withhold the same without permission of the Company.
Prima facie, petitioner is not entitled to retain the car when she is no
more a Director of the Company. Now, it is incumbent upon the
Learned Trial Court to decide whether petitioner wrongfully withheld
the articles of the Company or 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
23
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 to harassment. In the said case, the complainant after
leaving her matrimonial home in February, 2009 filed complaint in
the year 2013 alleging dowry harassment, just before her husband
instituted divorce proceeding. As such, allegations made by the
complainant were found wholly insufficient and prima facie did not
make out a case against the petitioners. The Hon'ble Supreme Court
further held that the petitioners are so farfetched and in probable
that no prudent person can conclude that there are sufficient
grounds to proceed against them as the case falls squarely in
categories (1) and (5) set out in the Bhajan Lal's Case (supra).
Consequently, the Hon'ble Supreme Court has quashed the FIR and
the consequential proceeding.
24
15. In the second referred case i.e., State of Haryana and
Others Vs. Bhajan Lal and Others, The Hon'ble Supreme Court
held in Paragraph 102 as under:
"102. This Court in the backdrop of interpretation of
various relevant provisions of CrPC under Chapter XIV
and of the principles of law enunciated by this Court in
a series of decisions relating to the exercise of the
extraordinary power under Article 226 of the
Constitution of India or the inherent powers under
Section 482 CrPC gave the following categories of cases
by way of illustration wherein such power could be
exercised either to prevent abuse of the process of the
court or otherwise to secure the ends of justice. Thus,
this Court made it clear that it may not be possible to
lay down any precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid formulae
and to give an exhaustive list to myriad kinds of cases
wherein such power should be exercised:
(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against
the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
25
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support of
the same do not disclose 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
26
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge."
The case of the present petitioner does not fall within any of the
categories mentioned in aforesaid judgment.
16. Thirdly, in the case of Naresh Kumar & Anr. Vs. The State
of Karnataka & Anr., the Hon'ble Supreme Court found there were
no criminal elements in the complaint. Consequently, the Hon'ble
Supreme Court held the case, in hand, is nothing but an abuse of
process of law. Accordingly, proceeding was quashed. In the present
case, this Court finds prima facie element for an offence punishable
under Section 452 of the Companies Act, 2013.
17. Fourthly, in the case of Madhavrao Jiwaji Rao Scindia &
Anr. Vs. Sambhajirao Chandrojirac Angre & Ors., the Hon'ble
Supreme Court held as under:
"When a prosecution at the initial stage is asked to be
quashed, the test to be applied by the court is as to
whether the uncontroverted allegations, as made, prima
facie establish the offence. It is also for the court to take
into consideration any special features which appear in
a particular case to consider whether it is expedient and
in the interest of justice to permit a prosecution to
continue. This is so on the basis that the court cannot be
utilised for any oblique purpose and where in the
27
opinion of the Court chances of an ultimate conviction is
bleak and, therefore, no useful purpose is likely to be
served by allowing a criminal prosecution to continue,
the court may while taking into consideration the special
facts of a case also quash the proceeding even though it
may be at a preliminary stage.
A case of breach of trust may be both a civil
wrong and criminal offence. But there would be certain
situations where it would predominantly be a civil
wrong and may or may not amount to criminal offence.
The instant case is one of that type where, if at all, the
facts may constitute a civil wrong and the ingredients of
the criminal offence are wanting.
Having regard to the relevant documents,
including the trust deed and the correspondence
following the creation of the tenancy and taking into
consideration the natural relationship between the
settler and the son and his wife and the fall out and the
fact that the trustee's wife does not claim any interest in
the tenancy, the criminal case should not be continued.
The criminal proceedings against the appellants-
accused are quashed."
18. Lastly, in the case of Jitha Sanjay and Others vs. State of
Kerala and Anr., the Hon'ble Kerala High Court held in Paragraphs
8, 9 and 10 as under:
28
"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
ulterior motive, the High Court will not hesitate in
exercise of its jurisdiction under Section 482 Cr.P.C to
quash the proceeding under Category 7 as enumerated
in State of Haryana v. Bhajan Lal (supra), which is to
the following effect:
"(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an ulterior
29
motive for wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge."
9. Similarly, in another decision in Mahmood Ali v.
State of U.P, reported in [2023 KHC 7029 : 2023
KHC OnLine 7029 : 2023 LiveLaw (SC) 613 : 2023
KLT OnLine 175 : AIR 2023 SC 3709 : AIR OnLine
2023 SC 602 : 2023 CriLJ 3896], the Apex Court
while considering the power under Section 482 Cr.P.C,
in paragraph 12 held that whenever an accused comes
before the Court invoking either the inherent powers
under S.482 of the Code of Criminal Procedure or
extraordinary jurisdiction under Art.226 of the
Constitution to get the FIR or the criminal proceedings
quashed essentially on the ground that such
proceedings are manifestly quashed essentially on the
ground that such proceedings are manifestly frivolous or
vexatious or instituted with the ulterior motive for
wreaking vengeance, then in such circumstances the
Court owes a duty to look into the FIR with care and a
little more closely. We say so because once the
complainant decides to proceed against the accused
with an ulterior motive for wreaking personal
vengeance, etc., then would ensure that the
FIR/complaint is very well drafted with all the
necessary pleadings. The complainant would ensure
that the averments made in the FIR/complainant are
such that they disclose the necessary ingredients to
30
constitute the alleged offence. Therefore, it will not be
just enough for the Court to look into the averments
made in the FIR/complainant alone for the purpose of
ascertaining whether the necessary ingredients to
constitute the alleged offence are disclosed or not. 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 try to read in between the lines. The
Court while exercising its jurisdiction under S.482 of the
Cr.P.C. or Art.226 of the Constitution need not restrict
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
31
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 demanded
repayment of loan amount, and no serious overt acts
even alleged, false implication to nullify demand of loan
amount is the intention to be drawn from the materials.
Thus, applying the ratio of the decisions referred above,
this petition succeeds and the same stands allowed.
Accordingly, Annexure A9 Final Report and all further
proceedings in C.C.No.541/2019 on the files of the
Judicial First-Class Magistrate Court-III, Thrissur, stand
quashed."
Facts and circumstances of the present case, in hand, are
different from aforesaid two judgments. Hence, those judgments are
not applicable herein.
19. Whereas, Judgment relied by the Learned advocate for the
opposite party no. 2 in the case of Aniruddha Khanwalkar Vs.
Sharmila Das & Others is squarely applicable wherein the Hon'ble
Apex Court held as under:
"12. Written complaint was filed by the appellant to the
Superintendent of Police of Shivpuri, Madhya Pradesh
32
on 07.07.2018 and to the Station in-Charge, Physical
Shivpuri on 08.07.2018. However, no action was taken.
It was thereafter, that the complaint was filed in the
court before the Magistrate on 20.07.2018. The Trial
Court after recording the preliminary evidence
summoned the respondent no.1 to face trial under
Sections 494 and 420 read with Section 120-B, IPC and
the respondent nos.2 and 3 to face trial under Section
420 read with Section 120-B, IPC.
12.1 The aforesaid order was challenged by the
respondents before the Additional Sessions Judge. The
Sessions Court held that no offence punishable under
Section 420 read with Section 120-B, IPC was made out
as the factum of earlier marriage of the respondent no.1
was clearly disclosed to the appellant. The Sessions
Judge failed to appreciate the fact that certain events
had taken place thereafter, namely, apprising the
appellant about the decree of divorce having been
passed and showing the forged copy thereof to him on
mobile. The Learned Sessions Court has considered the
revision against the summoning order as if after trial the
findings of conviction or acquittal was to be recorded. It
was a preliminary stage of summoning. For summoning
of an accused, prima facie case is to be made out on the
basis of allegations in the complaint and the pre-
summoning evidence led by the complainant.
33
13. In a challenge by the appellant to the aforesaid
order in the quashing petition, 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 case on its own merits on the basis of the evidence led by
the parties for final decision. It is beyond the jurisdiction of this
34
Court to embark upon final conclusion at this stage without leading
evidences by the parties that the petitioner wrongfully withheld the
articles of Company or not.
20. In the case of Hooghly Mills Company Limited Vs. State of
West Bengal and Another, the Hon'ble Supreme Court held in
paragraphs 10, 11 and 12 as under:
"10..........
................
…………..
…………..
……………
Section 630 nowhere stipulates that the property should
have been allotted by the company to the accused as a
perquisite of service. There may be a number of
purposes for which the accused may be given lawful
possession of the company’s property during the course
of employment for example, for safe custody of the
property or for maintenance thereof. The purpose for
which and the time at which possession was given is
irrelevant. What is sufficient is that the accused was put
into possession of the property in their capacity as an
officer/employee of the company and continued to
withhold such property without having any independent
right, title or interest thereto even after cessation of his
35
employment. As we have found in the discussion supra,
mere oral agreement or understanding would not be
sufficient to establish such an independent right.
11. Coming to the final issue, Section 397(2) of the
Cr.P.C provides that the High Court’s powers of revision
shall not be exercised in relation to any interlocutory
order passed in any appeal, inquiry, trial or other
proceeding. Whereas Section 482 of the Cr.P.C provides
that nothing in the Cr.P.C will limit the High Court’s
inherent powers to prevent abuse of process or to secure
the ends of justice. Hence the High Court may exercise
its inherent powers under Section 482 to set aside an
interlocutory order, notwithstanding the bar under
Section 397(2). However, it is settled law that this can
only be done in exceptional cases. This is, for example,
where a criminal proceeding has been initiated illegally,
vexatiously or without jurisdiction (See Madhu Limaye v.
State of Maharashtra, (1977) 4 SCC 551).
In the present case, the order of the Magistrate under
Section 630(2) was an interlocutory relief based on a
prima facie assessment of facts and did not conclusively
decide the ongoing trial under Section 630(1). If the
Magistrate finds that the appellant company has been
unable to prove that the 2nd Respondent was
wrongfully withholding possession of the property, such
interlocutory relief shall stand vacated. In light of the
above discussion, it is clear that there was no
exceptional case of illegality or lack of jurisdiction in the
36
interlocutory order of the lower court calling for the
exercise of the inherent powers of the High Court under
Section 482, Cr.P.C. However, we are in agreement with
the High Court’s direction that the trial under Section
630(1) ought to be completed as soon as possible.
Further, it is needless to say that if the civil court passes
a decree in favour of the 2nd Respondent in Suit No.
2126/2009, such decree must be honoured and
possession of the disputed property may be restored to
him accordingly.
12. Hence the appeal is allowed and the impugned
judgement is set aside, in the above terms.”
21. In the light of above discussion and judgments passed by the
Hon’ble Supreme Court in the aforesaid referred cases, this Court is
of the opinion that the Criminal Revisional application has devoid of
merits. Order of rejection of discharge from the case is found correct,
legal and well within the jurisdiction as such same is not required to
be interfered.
22. Accordingly, C.R.R. 858 of 2017 is, thus, dismissed.
Consequently, CRAN 1/2017 (Old CRAN 1879/2017), CRAN
9/2020 (Old CRAN 1201/2020), CRAN 10/2021, CRAN 11/2022,
CRAN 12/2023, CRAN 13/2023, CRAN 14/2023, CRAN 15/2023,
CRAN 16/2023 and CRAN 17/2023 are also, thus, disposed of.
37
23. Case Diary, if any, is to be returned to the learned Counsel
for the State.
24. Interim order, if any, stands vacated.
25. Let a copy of this judgment be sent to the learned Court
below for information.
26. Parties will act on the server copies of this judgment
uploaded on the official website of this Court.
27. Urgent photostat certified copy of this judgment, if applied
for, is to be given as expeditiously to the parties on compliance of all
legal formalities.
(Ajay Kumar Gupta, J)
P. Adak (P.A.)