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TMI Blog2009 (11) TMI 512X X X X Extracts X X X X X X X X Extracts X X X X ..... is being heard finally. 4. A preliminary objection has been raised by Sri Bireshwar Nath, learned counsel for the C.B.I. that the petition under section 633(2) is not maintainable on facts and circumstances of the case. The objection was sought to be replied by the petitioners' counsel. The narration of facts in brief thus becomes imperative. 5. The petitioners are the two Directors of a Company registered at Lucknow under the Companies Act, 1956 viz. Ms. Carlton Hotels Private Limited. 6. An F.I.R. was lodged on 12-1-2006 with the C.B.I. under sections 120B, 420, 467, 468, 471, 477A of the I.P.C, against one V.K. Gupta, the Chartered Accountant of the said Company. This FIR was lodged on the letter sent by Deputy Secretary, Government of India, Ministry of Finance, Department of Company Affairs, New Delhi addressed to the Director, C.B.I. North Block, New Delhi. This letter was sent after a preliminary inquiry which was conducted by the Ministry on the basis of a complaint made by one A.M. Johari. It was alleged that in the Annual Returns made up to 30-9-1997, 29-9-1998 and 30-9-1999 filed by the Company, page Nos. 3 to 14 were inserted/changed subsequently as the original ann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of duty, misfeasance or breach of trust against an officer of a company, it appears to the Court hearing the case that he is or may be liable in respect of the negligence, default, breach of duty, misfeasance or breach of trust, but that he has acted honestly and reasonably, and that having regard to all the circumstances of the case including those connected with his appointment, he ought fairly to be excused, the Court may relieve him, either wholly or partly, from his liability on such terms as it may think fit : Provided that in a criminal proceeding under this sub-section, the Court shall have no power to grant relief from any civil liability which may attach to an officer in respect of such negligence, default, breach of duty, misfeasance or breach of trust. (2) Where any such officer has reason to apprehend that any proceeding will or might be brought against him in respect of any negligence, default, breach of duty, misfeasance or breach of trust, he may apply to the High Court for relief and the High Court on such application shall have the same power to relieve him as it would have had if it had been a Court, before which a proceeding against that officer for negligen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 628 of the Companies Act; and hence, the intervention of the High Court granting him stay, is justified. He has also picked up reference to section 628 at pages 135 and 136 of the report of the inquiry conducted by the Central Government. This about sums up of the total argument of the learned counsel for the petitioner. 12. In reply, Sri Bireshwar Nath has reiterated his preliminary objection. He has once more drawn attention of this Court towards Rabindra Chamria's case (supra) and said that the learned counsel for the petitioner has misread and misunderstood the provisions of section 633 of the Company Act as well as the law laid down in Rabindra Chamria's case (supra). He says that the said case by Hon'ble Supreme Court leaves absolutely no doubt that the offences which are not covered under the Company Act, itself, cannot be subject matter of section 633 of the Act. The protection provided under section 633 of the Act is very limited. He has laid great emphasis on paras 23 and 24 of the said judgment, which reads as follows :- "Under the Company Act of 1956 (similarly under the old Act of 1913), various duties and liabilities have been imposed; equally offences have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r vide his order dated 21-5-2009. When the period expired on 1-6-2009. The petitioner wrote to C.B.I. seeking further fifteen days time for appearing before it on account of illness and urgent work. During this period, they moved instant petition under section 633 of the Companies Act on 8-6-2009. This is third petition, in which the petitioner secured ex parte order of stay of arrest on 9-6-2009. He further states that the Division Bench of this Court dismissed the writ petition pending before it on 20-7-2009 on the ground that multiple petitions for the same relief has been filed by the petitioner and further mentioned that the petitioners had concealed material facts including filing of petition of anticipatory bail before the Delhi High Court. 15. Sri Bireshwar Nath further states that the petitioners got another petition filed by Mr. V.K. Gupta under section 482 of the Cr.P.C. on 1-9-2009. Mr. V.K. Gupta is a co-accused and he was released on bail on the same date. However, no relief was granted to him by the Court. Sri Bireshwar Nath says that the hands of the investigating agency have been tied by the order dated 9-6-2009. They are avoiding investigation and appearance befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he would not be heard at all even at the risk of the criminal proceedings initiated by him being quashed. It is no solace to him to be told that if the criminal proceedings are quashed he may have the right to challenge it before the higher forums. The scheme envisaged in the Code of Criminal Procedure (for short 'the Code'), indicates that a person who is aggrieved by the offence committed, is not altogether wiped out from the scenario of the trial merely because the investigation was taken over by the police and the charge-sheet was laid by them. Even the fact that the Court had taken cognizance of the offence is not sufficient to debar him from reaching the Court for ventilating his grievance. Even in the Sessions Court, where the Public Prosecutor is the only authority empowered to conduct the prosecution as per section 225 of the Code, a private person who is aggrieved by the offence involved in the case, is not altogether debarred from participating in the trial. This can be discerned from section 301(2) of the Code which reads thus : If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Pub ..... X X X X Extracts X X X X X X X X Extracts X X X X
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