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2022 (8) TMI 884 - HC - Companies LawSummon Order - Wrongfully withholding the companies’ property - non-application of judicial mind - dispute between the parties is with respect to ownership of the property - HELD THAT:- The Hon’ble Supreme Court in the matter of M/S. PEPSI FOODS LTD. & ANR VERSUS SPECIAL JUDICIAL MAGISTRATE & ORS [1997 (11) TMI 518 - SUPREME COURT] while considering the scope of the High Court’s power to quash criminal proceedings in exercise of power under Articles 226/227 of the Constitution of India or of Section 482 of Cr.P.C., has held that summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto - It is also a settled law that if the High Court finds that invoking a criminal jurisdiction is an abuse of the process of law, the High Court should not hesitate to exercise its power under Section 482 of Cr.P.C. or 226 of the Constitution of India. A perusal of the provisions of Section 630 of the Companies Act would show that the same is a summary procedure. The concerned criminal court cannot determine the dispute as to the title of the property under dispute. Obviously, such questions are to be decided by the competent civil court - It is thus seen that Section 630 of the Companies Act can be invoked when there is no dispute or in any event, no bonafide dispute with respect to the property in question exists. If there is any dispute involving title to the property, the same would be adjudicated by the concerned civil court and not by Magistrate under Section 630 of the Companies Act. A perusal of the overall facts of the case would clearly demonstrate that there are serious disputes pending between the parties with respect to the property in dispute. The said dispute goes to the very entitlement of the complainant as to whether the same would fall within its share or as to whether the petitioner would be entitled for title and ownership of the property in dispute - In the instant case, the MoU clearly stipulates which company would go to which group. The company itself, in the present case, falls into the share of the rival group of the present petitioner. The MoU was entered on 24.01.1989. Much before the MoU, the Agreement to Sell the property in dispute was entered into on 04.02.1984. There have been various cases between the parties on account of their differences. This court finds that the learned Magistrate has committed a palpable error while summoning the petitioner for offence punishable under Section 630 of the Companies Act. A perusal of the impugned order dated 19.10.2012 does not reflect any application of mind with respect to the facts as stated in paragraph 19 of the complaint regarding the pendency of the civil suit between the parties - As it can be seen from the facts that the fate of the property in dispute is not yet determined, the rival parties are claiming rights over the property in dispute on the basis of the MoU. Till date, neither the petitioner nor the respondent/complainant has the clear title or ownership over the subject property. There is no sale deed in their favour. The suit for specific performance of contract filed by them against original vendee is still pending. This court is, therefore, of the considered opinion that the order of summoning of the petitioner, at this stage, is illegal and the same deserves to be quashed - Petition allowed.
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