ASHWANI SURI Vs. GANGA AUTOMOBILES LTD

JUDGEMENT

(1.) This appeal, under Section 483 of the Companies Act, 1956 read with Rule 9 of The Companies (Court) Rules, 1959, impugns the order dated 15.03.2012 of the learned Company Judge dismissing Company Application No.798/2011 preferred by the appellant seeking his discharge from Crl.O.(CO) No.9/1999 filed against him for violation / breach of Section 454 of the Act by non submission of Statement of Affairs of the company in liquidation. Two grounds were urged by the appellant before the learned Company Judge. Firstly, it was contended that the appellant had already ceased to be a Director of the M/s Ganga Automobiles Ltd. (in liquidation) way back in the year 1997 and could not be made responsible for the obligations of a Director; the second contention was that the requisite notice as required under Rules 124 and 125 of the Companies (Court) Rules, 1959 had not been served on him. The learned Company Judge held that there was no provision of discharge, once criminal proceedings had been initiated and cognizance been taken.

(2.) The appeal was admitted for hearing and with the consent of the counsels for the parties heard finally. While reserving the judgment, without prejudice to the respective contentions of the parties, the appellant who was then present in the Court was directed to appear before the Official Liquidator on 09.05.2012 and Official Liquidator directed to serve notice on the appellant and to also record the statement of the appellant under Rule 30 of the Companies (Court) Rules, 1959.

(3.) As far as the ground on which the learned Company Judge has dismissed the application for discharge, without considering the same on merits, is concerned, we are prima facie unable to agree that there is no provision for discharge once prosecution under Section 454(5) has been initiated and cognizance taken. Such power of discharge / quashing vests in the High Court under Section 482 of the Code of Criminal Procedure, 1973 and we are of the view that a Judge of the High Court exercising power as a Company Court, certainly will have a power of discharge / quashing a prosecution, if a case therefor is made out. The senior counsel for the appellant has relied on Fakhruddin Ahmad Vs. State of Uttaranchal, 2008 17 SCC 157 on the scope and ambit of powers under Section 482 of the Cr.P.C. However since no proper arguments have been addressed before us on this aspect and further since after hearing we are unable to find any case for discharge / quashing having been made out in facts of this case, we hesitate from giving any final opinion on this aspect. Moreover, the question as to whether the appellant had ceased to be a Director or not is not such which can be adjudicated under Section 482 Cr.P.C. and suffice it is to state that though the appellant claims to have left the country but no copy of the passport has been placed before us and even otherwise there is no document to prove the same and that is a matter of evidence. The learned senior counsel fairly agrees that the question, whether the appellant had ceased to be a Director or not, cannot be gone into at this stage and is to be decided in the prosecution, if to continue.