TMI Blog2020 (2) TMI 479X X X X Extracts X X X X X X X X Extracts X X X X ..... the offence which appears to have been committed. The learned trial Judge has erred not only in fact but also in law to take into consideration the true scope and ambit of Part IX of the Companies Act, 1956 as well as clause (b) of sub section (i) of Section 565 of the said Act by reaching an erroneous conclusion in the impugned order. The impugned order, therefore needs to be quashed and set aside and as such, it stands quashed and set aside. Thus, there is a prima facie case and deliberate falsehood on a matter of substance. There is an adequate foundation for framing a charge. It is, therefore, expedient in the interest of justice that there should be a complaint - impugned order set aside - appeal allowed. - CRIMINAL APPEAL NO.153 OF 2019 - - - Dated:- 5-2-2020 - PRITHVIRAJ K. CHAVAN, J. Mr. Abhinav Chandrachud a/w Mr. Naresh Ratnani i/b Ashwin Ankhad Associates, for Appellant. Mr. Ankit Lohia a/w Mr. Chetan R. Shah a/w Mr. Arun Mehta i/b Akshar Laws, for Respondents No.2 and 3. Ms. M.H. Mhatre, A.P.P, for Respondent No.4-State. JUDGMENT : Feeling aggrieved with and dissatisfied by an order dated 5th October, 2018 passed in Notice of Motion N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 for closing the evidence and order dated 12th November, 2014 for proceeding ex-parte in the aforesaid suit and Notice of Motion No.1346 of 2018 for being joined as a party defendant in place and stead of respondent No.1. 6. It is the specific contention of the appellants that respondent No.3 in an affidavit dated May, 2017 in support of Notice of Motion No.1925 of 2017 and an affidavit dated 2nd April, 2018 in support of Notice of Motion No.1346 of 2018 deliberately and intentionally made a false statement on oath that respondent No.2-Company i.e Nak Engineering Private Limited Company is the successor of respondent No.1-firm i.e M/s. Kishore Engineering Company under part IX of the Companies Act, 1956, inter alia, contending that respondent No.1 which is a registered partnership firm bearing registration No.65205 registered with Registrar of Firms, Government of Maharashtra was converted and registered as respondent No.2 a Private Limited Company under the provisions of Part IX of the Companies Act, 1956. 7. It is contended that respondent No.2 has falsely contended that respondent No.2-company was not aware and had not received any notice about aforesaid matter, as even r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even a single document for conversion furnished under Part IX of the Companies Act 1956 and even take over, for that matter, was produced which clearly shows neither conversion nor take over of respondent No.1-Firm by respondent No.2. 12. While countering the submissions made by the learned Counsel for the appellant, learned Counsel for the respondents contends that the appellants are habitual litigants who have filed various civil and criminal proceedings before several Courts. The learned Counsel has drawn my attention to paragraphs 2 and 6 of the plaint in Suit No.6117 of 2007, more particularly to the fact that M/s. Modern Products Private Limited itself is a tenant in respect of the suit premises who had granted licence to the respondents on a monthly compensation of ₹ 400/-. 13. Learned Counsel has also drawn my attention to memorandum of association of respondent No.2, more particularly, main objects of the Company to be pursued by the Company on its incorporation. He emphasized that a certificate came to be duly issued by the Registrar of the Companies, Maharashtra. There is no question of fabricating a single document by respondent No.2. Respondent No.2 is, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seven. No documents of whatsoever nature have been tendered by respondent No.1 to indicate any such procedure as provided in Part IX of the Companies Act, 1956 has been followed. It would be apposite to refer section 561 (i) (b) of Part IX of the Companies Act, 1956 which requires seven or more persons for converting a partnership Firm into a Company. It is pertinent to note that respondent No.1 continues to exist even today as per the certified extract issued by the Registrar of Firm, Government of Maharashtra. The certificate of incorporation of respondent No.1-Company has been issued under section 574 of the Companies Act, 1956 which specifically provides and mentions that the Company is incorporated under Part IX of the Companies Act, 1956. The certified extract of respondent No.1-Firm from the Registrar Firms dated 20th September, 2016 indicates that respondent No.1 continues to be an existing partnership firm. 19. An additional affidavit sworn by one of the appellants on 10 th January, 2020 which is annexed with an information provided by the Assistant Registrar of Companies Maharashtra, Mumbai under Right to Information Act buttressed the fact that as per the incorporati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he court has to form an opinion that it is expedient in the interests of justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically referred to in Section 340 (1) CrPc, having regard to the overall factual matrix as well as the probable consequences of such a prosecution. (See K.T.M.S. Mohd. v. Union of India ). The court must be satisfied that such an inquiry is required in the interests of justice and appropriate in the facts of the case . 22. The ratio decidendi is squarely applicable to the case in hand wherein the material tendered on record, prima facie, makes out a case for the purpose of inquiry into an offence referred to in clause (b) (i) of sub section (1) of Section 195 of the Criminal Procedure Code. The material is quite sufficient to indicate that there has been a deliberate and intentional false evidence for using the same in a judicial proceeding. 23. In case of Prem Sagar Manocha Vs. STATE (NCT OF DELHI), (2016) 4 Supreme Court Cases 571 , the Hon ble Supreme Court while dealing with section 193 of the Indian Penal Code observed that if an expert changes his stand in the Court as a witnes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that the proceedings under section 340 of CrPC can be successfully invoked even without a preliminary inquiry since the whole purpose of the inquiry is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed. To quote: 9. Reading of the sub-section makes it clear that the hub of this provision is formation of an opinion by the court (before which proceedings were to be held) that it is expedient in the interest of justice that an inquiry should be made into an offence which appears to have been committed. In order to form such opinion the court is empowered to hold a preliminary inquiry. It is not peremptory that such preliminary inquiry should be held. Even without such preliminary inquiry the court can form such an opinion when it appears to the court that an offence has been committed in relation to a proceeding in that court. It is important to notice that even when the court forms such an opinion it is not mandatory that the court should make a complaint. This subsection has conferred a power on the court to do so. It does not mean that the court should, as a matter of course, make a complaint. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge. In the present case we do not think the material brought to our notice was sufficiently adequate to justify the conclusion that it is expedient in the interests of justice to file a complaint. The approach of the High Court seems somewhat mechanical and superficial: it does not reflect the requisite judicial deliberation : it seems to have ignored the fact that the appellant was a Panch and authorized to act as such and his explanation was not implausible. The High Court further appears to have failed to give requisite weight to the order of the District Magistrate which was confirmed. by the Sessions Judge, in which it was considered inexpedient to initiate prosecution on the charge of alleged false affidavit that the appellant had not acted as Sarpanch during the period of the stay order. The subject matter of the charge before the District Magistrate was substantially the same as in the present case. Lastly, there is also the question of long lapse of time of more than ten years since the filing of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
