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TMI Blog2024 (4) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... the FIR registered at his instance is as under: i. The complaint was filed by the petitioner in his capacity as one of the Directors of M/s Kempty Konstructions Private Limited, stating that 988 shares of the aforesaid company were in his name, and it was alleged that the same got transferred to respondent no. 2 because the company secretary Sh. A.K. Popli filed fake/forged documents with the Registrar of Companies ('RoC') misusing the digital signatures of the petitioner in the period November-December 2009. ii. The petitioner alleged that he neither signed any transfer deed nor did he receive any consideration from respondent no. 2 for the alleged transfer of his 998 shares. iii. It is further alleged that the Petitioner was removed from the post of Director of M/s Kempty Konstruction Pvt. Ltd surreptitiously by respondent no. 2 by the way of filing fake/forged documents with Form 32 and the petitioner did not resign from his position at the company voluntarily. iv. The petitioner also alleged that respondents no. 3 and 4 were appointed Directors of M/s Kempty Konstruction Pvt. Ltd in the year 2005, however they have failed to disclose as to how they were appointed the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well as the company secretary Sh. A. K. Popli. The National Company Law Tribunal held that "Not only is the certificate of the auditor on record confirming the same, the respondents have been able to co-relate the remittance to the auditor from the personal account of the petitioner. Therefore, in the light of documentary evidence, the allegations of the petitioner remain unsubstantiated. Further.' it would fall only within the domain of civil litigation to declare the said transfer of share void or illegal on his proving that he is entitled to their return. Since the petitioner at the moment is not a shareholder and has not been able to satisfy this Bench that the same were transferred illegally, the present petitioner suffers from the disability under Section 399 of the Companies Act, 1956. Even otherwise, in equity. the petitioner has failed to satisfy this Bench that he is entitled to the prayers made in the present case. We do not find any merit in the allegations made by the petitioner in respect "of oppression and mis-management. The allegations are self-serving with the view of cause harassment to the respondent and pressurize them to return properties legally convey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1956, requiring the minimum paid-up capital of a private company to be Rs. 1,00,000/-, the aforesaid company duly allotted 995 equity shares of Rs 100/- each of the aforesaid company to the Petitioner. 5. Learned Senior Counsel appearing on behalf of the petitioner also submitted that respondent no. 2 was a family friend of the petitioner and a Chartered Accountant by profession and owing to mutual trust and good faith he was entrusted with the responsibility of statutory compliance and functioning of the aforesaid company. Respondent no. 2 also used to handle other works of the petitioner like filing Income Tax Returns with Income Tax Authority. 6. Learned Senior Counsel for the petitioner pointed out that due to a dispute between the petitioner and respondent no. 2 in 2011 regarding handing over of the title documents with respect to two shops located at 2/28, Roop Nagar, New Delhi, the petitioner got suspicious and worried of respondent no. 2's behaviour and dishonest intention and therefore, on 14.08.2011 he inspected the website of Ministry of Corporate Affairs and was shocked to know about the actual position of the aforesaid company as his shareholding had been reduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt can only consider the chargesheet and documents sent with it under Section 207 of CrPC and no other document can be taken into consideration including the documents provided by the accused. However, the learned Trial Court solely relied upon the order of the learned NCLT which did not even form a part of the chargesheet. The petitioner contended that the impugned order has been passed in violation of the judgement of this Hon'ble Court in Surinder Kumar Yadav And Ors. Vs Suvidya Yadav And Anr., 31 (1987) DLT 13, wherein it has been held as under: "The plain reading of Section 239 Criminal Procedure Code would go to show that whereas this provision talks of the consideration of documents sent by the prosecution along with the police report u/s 173 Criminal Procedure Code. and the police report, it is silent about any documents to be produced by the accused. It simply talks of the examination if any, of the accused as the Magistrate thinks necessary and also an opportunity to the prosecution as well as the accused of being heard. It is not open to the Magistrate to consider any other document which is not covered by the provisions of Section 207 Criminal Procedure Code, as tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ental proceeding would not mean that it was quashed on that ground.... *** *** *** It is worth mentioning that decision in P.S. Rajya (supra) came up for consideration before a two-Judge Bench of this Court earlier, in the case of State v. M. Krishna Mohan, (2007) 14 SCC 667. While answering an identical question i.e. whether a person exonerated in the departmental enquiry would be entitled to acquittal in the criminal proceeding on that ground alone, this Court came to the conclusion that exoneration in departmental proceeding ipso fact would not lead to the acquittal of the accused in the criminal trial. This Court observed emphatically that decision in P.S. Rajya (supra) was rendered on peculiar facts obtaining therein." 10. In support of his contentions, Learned Senior Counsel for the petitioner further placed reliance on Kishen Singh v. Gurpal Singh 2010 (8) SCC 775, wherein in Para 18, it has been observed and held as under: "18. Thus, in view of the above the law on the issue stands crystallised to the effect that the findings of fact recorded by the civil court do not have any bearing so far as the criminal case is concerned and vice versa. Standard of proof is diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er has not denied the execution of the said MoU before the learned NCLT. It was further submitted that forgery has not been established as the alleged signatures of the petitioner were not sent to FSL by the Investigating Officer. Further reliance was placed on the Hon'ble Supreme Court's judgement in Satish Mehra v. Delhi Administration AND Another, (1996) 9 SCC 766, to establish that documents can be placed before the learned Trial Court, whereby the said documents in possession of the accused can be considered by the learned Trial Court at the stage of consideration on the point of charge. 14. Respondent no. 2 vehemently denied that the filing of the annual return for Financial Years 2005-06, 2006-07 and 2007-08 was without the consent or knowledge of the petitioner. It was pointed out that all payments for filing the forms was paid by the petitioner himself from his firms' bank account and he failed to counter this fact before the learned NCLT. It was further pointed out that the Investigating Officer was duty bound to put on record before the learned Trial Court, all the relevant orders including those passed by the learned NCLT, learned NCLAT and the Hon'ble Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e jurisdiction to go into these allegations, vests with the Tribunal under Section 242 of the 2013 Act. Under Section 242(2), the NCLT has the power to pass "such order as it thinks fit", including providing for "regulation of conduct of affairs of the company in future". These powers are extremely broad and are more than what a Civil Court can do. Even if in the present case, the Court grants the reliefs sought for by the Plaintiff, after a full trial, the effective orders in respect of regulating the company, and administering the affairs of the company, cannot be passed in these proceedings. Such orders can only be passed by the NCLT, which has the exclusive jurisdiction to deal with the affairs of the company." 16. Reliance has been placed on the judgment of Hon'ble Supreme Court in Shashi Prakash Khemka v. NEC Micon, (2019) SCC OnLine SC 223, wherein it was observed as under: "5. The learned counsel has also drawn our attention to Section 430 of the Act, which reads as under: "430. Civil court not to have jurisdiction.-No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Tribunal or the Appellate Tribunal is empower ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... most of the documents on the instruction of complainant himself except resignation letter of the complainant Shiv Raj Singh. Accused Kamal Jain has supplied the copy of the certificate issued by Sh. A.K. Popli in support of his version regarding filing of the documents in question with the ROC. The detail of the alleged fake/forged documents filed with the ROC in the year 2009 & 2010 are as follows:- SI.No. Detail of the document filed with the ROC Date of filing Name of the person filing the documents 1. Appointment of Sh. Kamal Jain as Director w.e.f. 25.09.2008 21.11.2009 Sh. A.K. Popli 2. Annual Return, Balance Sheet etc. for the financial year ended on 31.03.2006 21.11.2009 Sh. A.K. Popli 3. Annual Return, Balance Sheet etc. for the financial year ended on 31.03.2006 21.11.2009 & 25.11.2009 Sh. A.K. Popli 4. Annual Return, Balance Sheet etc. for the financial year ended on 31.03.2008 05.12.2009 Sh. A.K. Popli 5. Form 32 regarding removal of Shiv Raj Singh from the Directorship of the company w.e.f. 21.10.2008 07.01.2010 Sh. Kamal Jain Scrutiny of the above mentioned documents revealed that the documents vide which accused Kamal Jain was appointed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above mentioned documents were tiled by him in his professional capacity. He has stated that he is not in the position to recognize the person who had supplied him the documents in question as well as digital signatures of Shiv Raj Singh as the matter is about 04-05 years old. He further clarified that the DIN number of Shiv Raj Singh was supplied to him bearing his photograph and on the basis of the same he is in a position to confirm that the said person Shiv Raj Singh did not meet him at that time and someone else had approached him for filing the related documents. He has also clarified that the alleged fake/forged resignation letter dated 20-10-08 of Sh. Shivraj Singh, if any, was not brought to his knowledge at the time of filing the documents in the period November-December 2009 and the said letter, if any, was concealed from him. He has stated that above said documents were filed in the digital signatures of Shiv Raj Singh and the concerned person of the company, who had come to him, has brought the digital signatures of Shiv Raj Singh in a pen drive for uploading the documents with the ROC. He has stated that had the resignation letter of Shiv Raj Singh been in his knowl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by way of misusing the digital signatures of the. complainant without his knowledge and consent as well as concealment of the resignation letter of the complainant if any from Sh. A.K. Popli, the company Secretary, it is sufficient to prove that accused Kamal Jain has committed the offence u/s 468/471 IPC in this matter. Accused Kamal Jain is the beneficiary of the transfer of 998 shares owned by the complainant in the company Mis Kempty Konstructions Pvt. Ltd. which were transferred in the name of accused Kamal Jain from the name of the complainant. Being beneficiary of the transfer of the shares he was directed to produce the transfer deed etc. signed by the complainant for the transfer of said shares in his favour as well as the proof of-the payment made to the complainant, if any, with him, for the purchase/transfer of those shares but he could not produce such transfer deed or the proof of the payment. Complainant has stated that the accused Kamal-Jain has got filed several fake and forged documents with the ROC at his own mentioning therein that the above said 998 shares owned by the complainant is transferred in his name. Investigation revealed that the documents i.e. not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression "hearing the submissions of the accused" cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police. 23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra case holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided." 20. So far as the ground that the petitioner did ..... X X X X Extracts X X X X X X X X Extracts X X X X
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