1. Awadh Mani Pathak 2. Gaurav Pathak v. 1. The State of Jharkhand 2. Ritu Pathak
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M. P. No. 1335 of 2018 ----- 1. Awadh Mani Pathak 2. Gaurav Pathak Versus 1. The State of Jharkhand 2. Ritu Pathak ----- … …. Petitioners … …. Opp. Parties
Legal Reasoning
the close family member has been given a criminal texture. No prima facie case is made out on the basis of materials on record and it will be a gross abuse of the process of the Court to permit continuation of the criminal proceeding any further. Under the circumstances, the entire criminal proceeding arising out of
Arguments
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Petitioner For the State ----- : Mrs. J.K. Mazumdar, Advocate : Mr. Vijay Kr. Sinha, A.P.P. ----- Oral Order 09 / Dated : 09.01.2024. 1. The instant criminal misc. petition has been filed for quashing the entire criminal proceeding including the order taking cognizance dated 05.03.2018 passed in Complaint-cum-Protest Petition No. 386 of 2017 under Sections 406, 420, 467, 471 of IPC. 2. Petitioner no. 1 is the father and petitioner no. 2 is the brother of the complainant/informant who lodged Namkum P.S. Case No. 70 of 2016 under Sections 406, 420, 467, 468, 471 and 120B of IPC. The police on investigation submitted final form. 3. Protest-cum-complaint was filed and on enquiry held Chapter XV of the Cr.P.C, s summoning order has been issued which is under challenge in the instant quashing petition. 4. The case of the complainant in brief is that M/s Hapamuni Herbal and Pharmaceutical Pvt. Ltd. was promoted by the complainant and her mother Late Sneh Lata Pathak who had ten thousand shares each in the said company and they were managing its affairs. 5. It is alleged that petitioner no. 1 who happens to be the father of the complainant with an intention to deceive got himself appointed as Director of the said company on 02.01.2013, although he was an employee and was not holding a single share in the said company. Petitioner no. 2 paid up capital in the company by allotting the shares made in his mother’s name and in his own name. 6. It is further alleged that this was done in conspiracy with the Chartered Accountant and Bank Manager who have been made accused nos. 3 and 4. The mother of the complainant resigned from the Director of the said company on 16.04.2015 and the complainant was thereafter holding 98% share of the said company. Petitioner no. 1 without calling any board meeting and without any notice got his son-petitioner no. 2 appointed him in the Board of Directors of the said 2 company. One Veena Singh who was a Director of the said company was removed from the Board of Directors by both the petitioners without complying with the statutory provisions of the Company Act, 2013 and also violated the article of association of the said company. The complainant apprehended that petitioner no. 1 has got loan sanctioned in the name of the company by forged and fabricated bank account which bears signature of the complainant and had withdrew Rs.26 Lakh from the National Horticulture Mission, Jharkhand. Later on, she came to know that her signature has been forged in the board resolution. 7. The summoning order has been assailed on the ground that the dispute at hand was purely civil in nature regarding which Company Petition No. 15 of 2015 was preferred before the National Company Law Tribunal (NCLT), Kolkata under the Companies Act. The petitioners were arrayed as respondent nos. 2 and 3 in the said company petition and prayer was, inter alia, made in moving the petitioners as directors of the company. 8. The present case is almost on same allegation for which proceedings were initiated before NCLT, Kolkata. The complainant was not holding 98% share in the company. As a matter of fact, she was having only 2% of share which will be evident from the balance sheet of the company which has been enclosed as Annexure-6. Factually incorrect and false averments have been made in the complaint that petitioner no. 2 was indebted in the company without any resolution of the Board of Directors which will be apparent from the extract of minutes of the Board meeting on 19.08.2015 which is part of Annexure-7 of the writ petition. 9. The complainant has been impleaded in the present case as opposite party no. 2 and Vakalatnama has been filed on her behalf. 10. Learned counsel for the State has defended the impugned order and submitted that merely because the civil case is also made out it cannot be a ground for quashing the criminal prosecution when the facts make out a criminal offence. As per the averments made in the complaint, petitioner no. 2 inducted as director without any due process and loan was raised in the name of the company on the basis of forged and fabricated documents. 11. On plain reading of protest-cum-complaint, it is apparent that the allegation is firstly with regard to the appointment of petitioner no. 1 in the company who happens to be the father and petitioner no. 2 who happens to be the brother of the complainant as the Director of the Company. The dispute regarding this appointment cannot be adjudicated in a criminal proceeding and for which proceeding was initiated before NCLT, Kolkata. From the order dated 26.12.2022 passed by the National Company Law Tribunal, Kolkata Bench, Kolkata in CP/ 15 (KB) 2017 which related to the case filed by Ritu Pathak vs. Hapamuni Herbals 3 & Pharmaceuticals Pvt. Ltd. & Ors. it appears that the said case was dismissed for non-prosecution. The allegation of Opp. Party No.2 that the loan which was taken in the name of the Company was not being repaid is also falsified from the order passed in W.P.(C) No.3292 of 2018 filed by the petitioner(s) for adjusting the subsidy amount and for paying the balance amount. Under the aforesaid facts and circumstance of the case it appears that a purely civil dispute arising out of dispute over share in a Company among
Decision
complaint-cum-protest petition No. 386 of 2017, including the impugned order is set aside so far the petitioners above-named is concerned. Cr. M. P. is allowed. (Gautam Kumar Choudhary, J.) Sandeep/uploaded.