2015 (11) TMI 497 - HC - Companies Law

Complaint against Sri Samson Arthur and Sri N. Chandrasekhar Rao under sections 191 192 193 and 209 of the Indian Penal Code 1860 - false information - winding up petition - whether a prima facie case is made out which if rebutted may have a reasonable likelihood to establish the specified offence and whether it is also expedient in the interest of justice to take such action? - Held that - Affidavit filed by Sri N. Chandrasekhar Rao prima facie goes to show that he has given false statement that the applicant-company does not have assets at all and non-payment of outstanding amount due by the applicant-company was due to prevailing financial conditions of the applicant-company. Even in the counter affidavit it is not the case of Sri N. Chandrasekhar Rao that they are unable to get the amount from Mack Soft and Mack Soft is not paying the amounts by which the applicant-company is disabled in paying the debts due to the petitioner. Similarly in the statement made by Samson Arthur in the counter affidavit dated February 16 2012 filed for appointment of provisional liquidator the only reason for non-payment of the outstanding dues by the respondent-company was the prevailing financial condition of the respondent-company which is contrary to the audit report filed by Sri M. Chandrasekhar Rao as representative of Mack Soft before Ranga Reddy Court in which it is shown that INR 62, 91, 40, 970 (INR 62.91 crores) is due to the applicant from Mack Soft and that the amount due from Mack Soft to the applicant-company is also admitted in the counter to the present application. The company court while appointing provisional liquidator in C. P. No. 30 of 2012 filed by the petitioner held that the court passed the order for appointing of provisional liquidator since the counter affidavit filed by Sri Samson Arthur is vague and has not chosen to give details of its assets nor has it assured the court that the assets would not be taken away beyond the jurisdiction of the court. Admittedly caveat petition is filed by the applicant-company on February 10 2012 and winding up petition is filed on February 14 2012 by the petitioner and winding up order is passed on July 6 2012. The sequence of events leading to winding up order in the company petition in quick succession would also give rise to a presumption that non-applicants Nos. 1 and 2 have not placed correct facts before the court before winding up order is passed. The respondents being legally bound by on oath to state the truth in their affidavits is prima facie held to have made a false statement which constitutes an offense of giving false evidence as defined under section 191 punishable under sections 193 and 209 of the IPC. Hence the Registrar (Judicial) to depute one officer not below the rank of Assistant Registrar or above the rank to file a complaint under section 340(1) of the Cr.P.C. read with sections 191 193 and 209 of the IPC against the respondents/non-applicants Nos. 1 and 2 herein before a Magistrate of competent jurisdiction at Hyderabad. Such officer is directed to file such complaint and take all steps necessary for prosecuting the complaint. The concerned Magistrate is directed to deal with the same as per law without being influenced by any of the observations made herein since they are made only for the purpose of preliminary enquiry under section 340(1) of the Cr.P.C.

Issues Involved:
1. Allegations of false statements and perjury under Sections 191, 192, 193, and 209 of the Indian Penal Code (IPC)
2. Collusion and fraudulent admission of liability leading to a winding-up order.
3. Authority and legitimacy of the applicant's representation.
4. Applicability and interpretation of Sections 340 and 344 of the Code of Criminal Procedure (CrPC).

Issue-wise Detailed Analysis:

1. Allegations of False Statements and Perjury:
The applicant filed a company application seeking a direction to register a complaint against Sri Samson Arthur and Sri N. Chandrasekhar Rao under Sections 191, 192, 193, and 209 of the IPC. The applicant contended that both individuals wrongfully admitted the liability of the applicant-company towards the petitioner, leading to a winding-up order based on false claims. The applicant highlighted discrepancies in the affidavits filed by these individuals, which contradicted the audit reports and other financial documents, suggesting falsehood and suppression of material facts.

2. Collusion and Fraudulent Admission of Liability:
The applicant alleged that there was collusion between the petitioner and the respondents, leading to the wrongful admission of liability and the subsequent winding-up order. The court noted that the affidavit filed by Sri N. Chandrasekhar Rao on June 13, 2012, falsely stated that the applicant-company had no assets and was not operating, despite audit reports showing substantial assets. Similarly, Sri Samson Arthur's counter affidavit falsely attributed non-payment to financial difficulties, contradicting earlier statements and financial documents.

3. Authority and Legitimacy of the Applicant's Representation:
Respondents argued that the authority of Mr. Robert Dix to file the present application was defective due to the absence of properly authorized and executed documents. They contended that the dispute related to non-payment of contractual dues and that the agreement's validity was not disputed. The court, however, found that Robert Dix was authorized to represent the applicant-company, as evidenced by the authorization dated May 22, 2013, and other supporting documents.

4. Applicability and Interpretation of Sections 340 and 344 of the CrPC:
The court examined the provisions of Sections 340 and 344 of the CrPC. It clarified that Section 344 allows a Court of Session or Magistrate to take cognizance of an offense if a witness knowingly gives false evidence. However, Section 340(1) empowers any court to conduct a preliminary inquiry and make a complaint if it is expedient in the interest of justice. The court emphasized that Section 340(1) is an independent provision and can be invoked irrespective of Section 344. The court found that the affidavits filed by the respondents contained false statements, constituting an offense under Sections 191, 193, and 209 of the IPC.

Conclusion:
The court directed the Registrar (Judicial) to depute an officer to file a complaint under Section 340(1) of the CrPC, read with Sections 191, 193, and 209 of the IPC, against the respondents before a Magistrate. The Magistrate was instructed to handle the complaint as per law, uninfluenced by the court's observations made during the preliminary inquiry.

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