M. ARAMUGHAM Vs. STATE OF K ERALA

JUDGEMENT

(1.) Petitioner is the Managing Director of M/s.Cardamom Growersforever Pvt. Ltd. ('the company', for short), who is arraigned as the second accused along with the Company as the first accused in Crime No.537/2018 of Palarivattom Police Station for offences allegedly punishable under Sections 406 , 420 , 465 , 468 and 471 read with Section 34 IPC.

(2.) The facts of the prosecution case as mentioned in Annexure-E FIR in brief are thus: M/s Cardamom Growers Federation ('the firm', for short), a firm of which the petitioner was a partner, holding a cardamom auctioneer licence issued by the Spices Board ('Board', for short) in the name of the firm, registered a new company, M/s Cardamom Growersforever Pvt. Ltd., before the Registrar of Companies ('RoC', for short) with the petitioner as the Managing Director, and in furtherance of common intention with others produced a forged Memorandum of Association ('MoA', for short) of the aforesaid Company and submitted it before the Palarivattom office of the Board, falsely adding a clause that the Company is the successor of the firm, and dishonestly induced the Board to permit the Company to continue using the cardamom auctioneer licence obtained in the name of the firm for the years 2014-2017 thereby deprived the Board of a licence fee of Rs.50,000/- essential to be remitted for the purpose of obtaining a fresh licence and illegally participated in the cardamom auction using the licence obtained in the name of the firm, and earned a sum of Rs.36 lakhs.

(3.) The petitioner would contend that the Company was incorporated with the intention to take over the entire business of the partnership firm and therefore, a request was made to the Board to transfer the licence obtained in the name of the firm to the Company, which is the successor of the firm in every aspect, and in consequence to that, the Board issued a new auctioneer licence in the name of the Company. Consequent to the auction, the petitioner received a show cause notice on 11.04.2018 at Annexure-B from the Board stating that on verification of the documents produced along with the request made by the petitioner for transfer of licence of the firm to the Company, it was noticed that some changes have been effected to the first and last pages of the MoA produced before the Board. The MoA that was produced before the RoC, did not contain the recital that the main object of the Company was to succeed to the business of the firm Cardamom Growers Federation. A recital was fraudulently added to the MoA that was produced before the Board, with the intention to deceive. Hence, the petitioner was asked to show cause, why action should not be taken against him for cancellation of the Auctioneer licence. The petitioner approached the Board in person and explained the circumstances under which the Company was formed and also apprised them that due to an inadvertent omission at the time of uploading the documents on-line for the registration of the Company, an unamended version of the MoA was attached to the application instead of the amended MoA which had the clause stating that the object of forming the Company was to take over the business of the firm, M/s.Cardamom Growers Federation. It is explained by the petitioner that it was only an inadvertent error which occurred on the part of the professional engaged by the Company while uploading the documents along with the changes brought about to the firm and that there were no intentional misleading by the petitioner representing the Company.