S.N. FINANCE LIMITED Vs. K.R. SATHYAVATHY

JUDGEMENT

(1.) The official liquidator has filed I.A. No. 1 of 2012 under Section 5 of the Limitation Act, 1963 representing the complainant seeking condonation of delay of 1574 days in preferring the criminal appeal. The application is supported by the affidavit of official liquidator attached to this Court wherein it is stated that in terms of Section 449 pursuant to the order of winding up passed by this Court he has gone through the records pertaining to the appellant-Company and that one Sri A.S. Pattabhiraman, Ex-Managing Director of the Company in liquidation in collusion with Smt. K.R. Sathyavathi his wife misappropriated/mismanaged the funds of the company in liquidation. Thereafter, company led the criminal complaint bearing C.C. No. 818 of 2002 before the 4th ACMM Court, Bangalore in which Smt. K.R. Sathyavathi is accused. It is also mentioned that recovery suit in O.S. No. 7306 of 2002 is also filed for recovery of Rs. 5,94,21,914.38 against Sri A.S. Pattabhiraman in which his wife is the 2nd respondent. It is stated that the said criminal case has been dismissed by the ACMM Court acquitting the accused vide order dated 5-10-2007 in C.C. No. 5118 of 2003. The complainant challenging the impugned order filed company application bearing No. 1462 of 2007 before this Court well-within the limitation period instead of preferring the same before the Criminal Court. The said act of the complainant is not intentional, but an inadvertent mistake. Hence, the applicant sought to condone the delay in preferring the present appeal before this Court. The respondent opposed the application by filing objection statement wherein it is contended that no sooner notice of the application filed by the official liquidator in the Company Application No. 142 of 2002 came to be served on respondent, the respondent appeared in the case and filed her counter contending that appellant-company cannot maintain an application before the Company Court in a company petition questioning the legality and correctness of the judgment of acquittal passed by the Criminal Court in relation to an offence which made penal under Section 138 of the Negotiable Instruments Act, 1881. Instead, the official liquidator who is representing the company in the event of company being in any way aggrieved by the judgment of acquittal passed by the trial Magistrate, has got to challenge the same in an appeal invoking the jurisdiction of Appellate Court under Section 378 of Criminal Procedure Code, 1973. Hence, the respondent opposed the application and sought for dismissal of the same.

(2.) Heard the learned Counsel appearing for the applicant-complainant and learned Senior Counsel appearing for respondent on I.A. No. 1 of 2012.

(3.) Learned Counsel for the applicant has submitted that after dismissal of criminal case by the Magistrate Court the official liquidator filed the application before the Company Court. It is the bona fide mistake on the part of the official liquidator in pursuing remedy before the wrong forum. The Company Court disposed of the application with a liberty to the complainant to approach the appropriate forum. When the application was pursued before the wrong forum, it is with bona fide intention and it is not intentional or deliberate. In support of his contention, learned Counsel for the applicant-complainant has relied upon the decision in the case of Coal India Limited and Another v. Ujjal Transport Agency and Others, 2011 1 SCC 117. The relevant paragraph 5 of the said judgment reads as under: