Smt. Abha Puri vs State of U.P.

Hon''ble Surendra Vikram Singh Rathore, J.—Heard learned counsels for the parties.

By means of this Criminal Misc. Application, the petitioners have prayed that the summoning order dated 7.2.2009, passed by the Chief Judicial Magistrate, Raebareli in Complaint Case No.3781/2008 Ajit Singh Puri vs. Smt. Abha Puri & others, under Sections 468/469/418/420 IPC, Police Station Kotwali Nagar, District Raebareli and the entire proceedings arising therefrom be quashed.

For the purpose of the present petition, necessary facts may be summed up as under:-

The opposite party no.4 Sri Ajit Singh Puri filed a complaint against the petitioners with the allegation that he was agent of "Amethi Humes Pipe Pvt. Ltd." 2-Engineering Complex, Sultanpur Raod, Police Station Mill Area, District Raebareli. On 24.5.1982 the aforesaid company was registered as a private company bearing No. 5664/1982. A meeting of the Board of Directors of the Company took place on 26.5.1982. Sri Dayal Singh Puri, Smt. Abha Puri (petitioner no.1), Smt. Pradeep Puri (Petitioner no.2) and Shri Ajit Singh Puri (opposite party no.4) were the Directors of the Company and Shri Dayal Singh Puri was made the Chairman of the said meeting. It was further decided that opposite party no.4 shall hold General Power of Attorney of the Company and he shall be entitled to take all the decision on behalf of the Company and to operate the bank account of the Company. After the said meeting on 2.6.1982 a General Power of Attorney was executed in favour of the opposite party no.4 and one Shri P.N. Kapoor and A.S. Nigam also signed on the said Power of Attorney as witnesses, which was verified by the Notary. It was further mentioned in the said Power of Attorney that this Power of Attorney shall be irrevocable.

The allegation of the opposite party no.4/ (complainant) was that the Directors of the Company Smt. Abha Puri and Smt. Pradeep Puri (petitioners) in conspiracy and with the intention to cause financial loss and loss to the reputation of the complainant, prepared some forged documents and knowingly filed such forged documents along-with a false affidavit before the General Manager, Zila Udyog Kendra, Raebareli. It was mentioned by the petitioners in the said affidavit that the Power of Attorney was withdrawn from the complaint in year 1998 while actually no such resolution was passed in any meeting of the Board of Directors. The date of the meeting in which such resolution was passed by the Board of Directors was not mentioned in the said affidavit. By use of said forged and fabricated documents the power of operation of the opposite party no.4 to operate the bank account of the Company was stopped. The petitioners filed the said complaint annexing the aforesaid alleged fabricated documents. During the course of enquiry the complainant got himself examined u/s 200 Cr.P.C. and u/s 202 Cr.P.C. one Amar Nath Srivastava and one Awadhesh Kumar Srivastava were examined. By the impugned order the petitioners were summoned to face trial. Feeling aggrieved by the said order the present petition has been filed.

The argument of learned counsel for the petitioners is that it is a matter of civil dispute and no criminal offence can be said to have been committed by them. When the dispute between the Directors raised, the matter was referred to the Company Law Board, Principal Bench, New Delhi, bearing Company Petition No. 33/2008 Smt. Abhapuri Vs. Amethi Hume Pipes Pvt. Ltd. In the judgment on the said petition, it was directed that the complainant who was second respondent in the said Company Petition will continue to discharge his function as he was doing before 31.3.2007. The Bank account shall be operated jointly either by the petitioners and second respondent. The petitioners shall not take any steps to exclude the second respondent from the management and he will continue to discharge the functions.

It is argued that from the aforementioned judgment it is clear that dispute is of a civil nature, which was decided by the Company Law Board.

It is argued on behalf of the opposite party no.4/ complainant that the dispute relating to the matters of the company was decided by the Company Law Board but the fabrication of the documents and using them as genuine falls within the category of an offence, for which the petitioners are criminally liable. It is further submitted that against the order passed by the Company Law Board in Company Appeal No. 2/2009 was preferred and vide order dated 26.11.2009 the Bench of this Court ordered that the execution moved before the Company Law Board shall be kept in abeyance.

It is further argued that there is no illegality in the summoning order and the petition is devoid of merits and deserves to be dismissed. So far as the allegation of fabrication of documents and producing false affidavit and using the said documents as genuine is concerned the respondent no.4 had filed those documents and had produced witnesses in support of allegation. On the basis of the material produced before the Magistrate the impugned order was passed. The power u/s 482 Cr.P.C. are very wide but have to be exercised with great care and caution and that too very sparingly.

In a latest pronouncement in the case of Padal Venkata Rama Reddy @ Ramu Versus Kovvuri Satyanarayana Reddy & others (2011)3 JIC 465 (SC). The Hon''ble Apex Court while relying upon the pronouncement of the Apex Court in the case of R.P. Kapur Vs. The State of Punjab, , has held in para 11 as under:-

It is well settled that inherent power u/s 482 Cr.P.C. can be exercised only when no other remedy is available to the litigant and not in a situation where a specific remedy is provided by the statute. It cannot be used if it is in-consistent with specific provisions provided under the Code. It has further been held that inherent power is to be exercised ex debito justitiae, to do real and substantial justice, for administration of which alone Courts exist. Wherever any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent the abuse. It is, however, not necessary that at this stage there should be a meticulous analysis of the case before the trial to find out whether the case ends in conviction or acquittal.

In the case of Indian Oil Corporation v. NEPC India Ltd. & others, 2006(3) JIC 569 (SC), it was held that the High Court should not exercise their The criminal complaint is not required to verbatim reproduce the legal ingredients of the alleged offence. If the necessary factual foundation is laid in the criminal complaint, merely on the ground that a few ingredients have not been stated in detail, the criminal proceedings shou ld not be quashed. Quashing of the complaint is warranted only where the complaint is bereft of even the basic facts which are absolutely necessary for making out the alleged offence.

It was further held that a given set of facts may make out (a) purely a civil wrong, or (b) purely a criminal offence or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence."

When the facts of the case, in hand, are examined in the aforementioned legal perspective then it is clear that an irrevocable power of attorney was executed in favour of respondent No. 5 and there was no resolution of the Board of Directors to withdraw the said resolution of conferring the irrevocable power of attorney in favour of respondent No. 4. It is an admitted fact that the petitioners executed an affidavit and produced it before the Bank and stopped the powers of the respondent No. 4 to operate the bank account. The affidavit was false because it was mentioned in it that power of attorney has been withdrawn. The argument of the learned counsel for petitioners is that it is a civil dispute and it cannot be said that the petitioners have committed any offence. There could be no dispute to the proposition that if the complainant does not make out an offence, the FIR can be quashed. Further it is also settled law that the facts may give rise to a civil claim and also amount to an offence. Merely because of the fact that a civil claim, is maintainable, it does not mean that the criminal complaint cannot be entertained. In this case on the facts, it cannot be said at this stage that the summoning of accused persons was absolutely frivolous and no offence was committed by the accused persons. The petitioners are alleged to have fabricated false papers and false affidavit and used them to cause loss to the respondent No. 4. In the case of M. krishna V. Vijay Singh and another reported in JT 2001(8) SC 340 it was held by the Hon''ble apex court that while exercising the power u/s 482 Cr.P.C by this court, the High Court should be slow in interfering with the proceedings at the initial stage and that merely because the nature of dispute is primarily of civil nature, the criminal prosecution cannot be quashed because in case of forgery and fraud there is always some element of civil nature. In the present case this court has noticed that before issuance of the process the Magistrate had recorded statement of the witnesses for the complainant and also examined the complainant and examined the documents filed by him and on the basis of the said material on record, the learned Magistrate held that there exists sufficient ground for proceeding against the accused and accordingly the order was passed. It is nowhere the case of the petitioners that the Magistrate had no jurisdiction to entertain the complaint or the complaint was barred by time. At the stage of summoning, the Magistrate has to examine the material on record only with a view to be satisfied that there exists primafacie ground for proceedings. At this state the court is not expected to examine the material on record with a view to hold whether conviction can be sustained on the basis of the material on record or not. The learned counsel for respondent No. 4 has placed reliance on the pronouncement of the Hon''ble apex court in the case of Kamladevi Agarwal Vs. State of West Bengal and Ors. reported in 2002 (1) JIC 5 (SC). In the said case the Hon''ble apex court has held that a criminal proceeding is also maintainable where the facts make out a dispute of civil nature also. Learned counsel for petitioners have placed on record the copy of judgment of Company Law Board and the orders passed in appeal therefrom. But i.e their defence and such documents cannot be examined at this stage. The trial court shall consider the said documents when filed by the petitioners during the course of trial at the relevant stage of the trial.

In view of the aforesaid discussion, this Court is of the considered view that the petition is devoid of merits and deserves to be dismissed and is accordingly dismissed. Stay order if any stands vacated.