FRADEEP JAISWAL Vs. JAISWAL PACKAGING PRIVATE LIMITED

JUDGEMENT

(1.) The petitioner in the pesent case is the accused in criminal case, pending before Metropolitan Magistrate. Briefly staling, the facts of the case are as under:-

(2.) That the accused and the complainant are related to each other as son and father respectively. The complainant, Shn Hans Raj Jaiswal, acting for an on behalf of Jaiswal Packaging Private Limited, had filed a complaint against Mr. Pradeep Jaiswal under Sections 380,403 and 4091.P.C. read with Section 201 of Indian Penal Code in the Court of Shri M.L. Sahni, Metroplitan Magistrate (as he then was). It is alleged in the complaint that the accused had removed important parts of the machinery from the factory such as Feeder of Dominical (0715) Offset Printing, Gauge of Polar Automatic Paper Cutting Machine, Belt and other parts of Heidelberg machines etc. apart from books of account misappropriated funds. The complaint after being marked by the A.C.M.M. to Shri Akshay Kumar, Metropolitan Magistrate, who in turn referred the complaint to S.H.O., Okhla Industrial Area. While the matter was being investigated by the S.H.O., Shri Pradeep Jaiswal filed a Company Petition under Sections 397 and 398 of the Companies Act, being C.P. No. 98 of 1990. In that matter, Shri Pradeep Jaiswal got a Commissioner appointed and got certain proceedings recorded on commission, such as possession of account books of the company and certain important parts of the machinery without which the machines cannot operate. The S.H.O., in the course of his investigations, took note of what was produced before the Commissioner, appointed by the High Court in the said Company Petition and also recorded statements of certain individuals including watchman. On the basis of this material, he returned a finding that no offence is made out. As such, no action was taken by the Metropolitan Magistrate until the complainant moved again by means of an application, which was described as Protest Application. The Metropolitan Magistrate heard the parties in response to the said Protest Application and looked into the material brought on record by the S.H.O., appraised the material independently and came to the condusion that primafacie a case was made out under Section 409 and issued the summons.

(3.) The accused, feeling aggrieved from the said order of summoning, moved the present petition, challenging the order of summoning on various grounds such as:- (1) On the plea that books of accounts are not property as these have no value and they are movable or retention by the accused, who was at one time Director Incharge of the Company, did not commit any offence; 127 (2) The dispute complained of is of civil nature and parallel proceedings relating to the same property are already pending before the Company Judge of this High Court. Therefore, also no summons should have been issued; (3) The Magistrate has committed serious error of jurisdiction in issuing process without complying with the mandatory requirement of Section 200 of Criminal Procedure Code in as much as no statements of the witnesses were recorded by the Magistrate and the Magistrate proceeded merely on the material placed on record by the S.H.O.; (4) If any action had to be taken, then Section 630 of the Companies Act read with Schedule II was the specific provision, which should have been invoked and not the general criminal law provision; and (5) It was highly improper on the part of the Magistrate to rely upon the record of this Court even though it was forming part of the Magistrate's file alongwith S.H.O/s report and that order summoning the accused is an abuse of the process of Court.