9911796707
TMI Blog2011 (3) TMI 1456X X X X Extracts X X X X X X X X Extracts X X X X ..... he above and quash the same. 3. The respondent is a finance company, having its registered office at Chennai. The business of the complainant company is extending hire purchase, loan and leasing facility on vehicles, machinery, equipment to individuals and corporate companies. Sri Rajeswari Mills Ltd., at Gudiyatham Taluk is a company incorporated under the Companies Act, 1956 and petitioner Nos. 1 to 3 are the directors of the company and the fourth petitioner is the chartered accountant. The said company is having two units, one at Gudiyatham and another at Karaikal. 4. The sum and substance of the complaint is that the petitioners offered their machinery in their units to the complainant company for sale and sought financial assistance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led for the alleged offence under sections 420, 468 and 471 read with section 34 of the Indian Penal Code, 1860. The same has been taken on file in C.C. No. 4311 of 2009 and aggrieved by the same, the petitioners are before this court to quash the proceedings on various grounds. 7. Mr. G. Rajagopalan, learned senior counsel, who appeared for Mr. A.S. Balaji, for the petitioners, would submit that the case of the complainant that they became aware of the first charge in favour of the IDBI only during the course of execution of proceedings, is not true. Learned senior counsel submitted that under sections 125 and 126 of the Companies Act, 1956, the complainant was presumed to have knowledge of the earlier charges duly registered with the Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to saying something contrary to law and nullifying the very effect of deeming provision." (p. 90) 10. Learned senior counsel further relied on a decision in (Rukmini Narvekar v. Vijaya Satardekar) [2008] 14 SCC 1, the Apex Court has held as follows : "36. While deciding the questions referred to it, the Larger Bench made a conscious distinction between a preceding under section 227 of the Code of Criminal Procedure, 1973, before the trial court and a proceeding under section 482 of the Code of Criminal Procedure, 1973 and made a reference to the court's power to consider material other than those produced by the prosecution in a proceeding under section 482 of the Code of Criminal Procedure, 1973. It is in that context that while holdin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and matter in issue is civil in nature the court can exercise its power under section 482 of the Code of Criminal Procedure, 1973. 13. On the contrary, Mr. Ramesh, learned senior counsel who appeared for Mr. S. Suresh, for the respondent would submit that the complainant company was made to part with huge sum of Rs. 1,04,35,000 on the false representation and deception of the petitioners on the basis of the false documents produced by them in the form of no lien certificate. The dishonest intention is from the inception which attracts the offence under section 420 of the Indian Penal Code, 1860. 14. Learned senior counsel submitted that a roving enquiry cannot be conducted at this stage since the conduct of the petitioners would show that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced such certificate there was already a lien in the property. It is submitted that under sections 125 and 126 of the Companies Act, 1956, the charges were already notified and the complainant is deemed to have noticed such charges. The decision relied on by learned senior counsel by the petitioner relates to a suit filed by a bank for recovery of the amount secured by mortgage of the property. In that context, the Bombay High Court held that a purchaser is bound to make all reasonable enquiries as to the title of his vendor and if the company had created a mortgage and such mortgage of charge is registered under section 125 of the Companies Act, 1956, the effect of section 126 of the Act would operate even on subsequent purchaser. Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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