2023 (5) TMI 1255 - ALLAHABAD HIGH COURT

Oppression and mismanagement - Fraud and illegal financial activities committed by them while managing the company - criminal breach of trust and forgery

Contention is that even if the case of the prosecution is taken on its face, as is emerging from the first information reports and the grounds on which the charge sheet has been filed, no cognizable offence is emerging and therefore the trial court has committed manifest illegality in taking cognizance of the offences and in issuing process against the applicants.

HELD THAT:- There is no bar in lodging an FIR or in conducting an investigation or even in the trial or conviction of an offender under two different enactments, but the bar is only with regard to the punishment of the offender twice for the same offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted under either or both enactments but shall not be liable to be punished twice for the same offence.

The word civil court appearing herein above could not be read as criminal court. If the intention of the Legislature was to exclude the provisions of Indian Penal Code, with regard to the offences investigated under Companies Act, then nothing had prevented the Legislature from making such a provision. Even otherwise, it is a well established principle of law that the exclusion of the jurisdiction of the Court has to be specific and cannot be inferred, and the provisions excluding the jurisdiction have to be construed strictly. Thus, in the considered opinion of this Court the word "Civil Court", emerging in this section cannot be read as "Criminal Court".

Prima facie, there are specific allegations made by opposite party no. 2 in the FIR's lodged by him and the Investigating Officer having conducted investigation by collecting the material and recording the statements of the witnesses under Section 161 of the Cr.P.C. and considering the same, filed the charge sheet - The Court has to consider whether from allegations contains in FIR and material collected during the course of investigation prima facie any offence is disclosed. Correctness or otherwise of the said allegations has to be be decided only during trial. At the initial stage of issuance of process, it was not open to Courts to stifle proceedings by entering into merits of the contentions made on behalf of the accused. Criminal complaints could not be quashed only on the ground that, allegations made therein appear to be of a civil nature. If ingredients of offence alleged against Accused were prima facie made out , Criminal proceeding shall not be interdicted.

Thus, no illegality appears to have been committed by the investigating officer in submitting the charge sheet or by the trial court in taking cognizance and in issuing process. Resultantly all the petitions filed by the applicants placed above are not having force and for the reasons mentioned herein before, all these petitions are dismissed.