ANIL AGARWAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) 1. The five petitioners herein who are the Chairman and the Directors of a Company running in the name and style of M/s Sterlite Industries (India) Ltd. (hereinafter Page 0306 referred to as "the Company") have invoked the jurisdiction of this Court under Section 482 Cr.P.C. for quashing of the order dated 30.8.2001 passed by Sri Bajrangi Sharan, the erstwhile Judicial Magistrate, First Class, Danapur, in Complaint Case No. 367(c)/2001 whereby and whereunder cognizance has been taken against the petitioners for commission of offences under Sections 406/34, 120B I.P.C.

(2.) THE brief factual matrix of the case may be called out from the complaint petition which has been appended to the petition as Annexure-1. THE gravamen of the offence alleged against the accused persons is that they indulge in corrupt practices and unlawful acts like retaining share certificates, not to issue duplicate share certificates, illegally retaining Dividend warrants, mismanagement of public funds and the like. In this connection it is alleged by the complainant (O.P. No. 2 herein) who had been authorised by his daughter Aarti Kumari, to file the complaint that he had invested Rs. 18000/- in the name of his daughter, in fully convertible Debentures of the Company for which 100 shares were issued in the name of Aarti Kumari and her name was registered in the relevant register as holder of all those shares. It is said that later on due to inadvertence the said shares were either misplaced or lost and accordingly intimation in writing in that regard was sent to the accused persons as there was an apprehension that they might be utilised by dishonest and unscrupulous persons. It is further said that when no response was received from the accused persons notwithstanding the passage of several months a legal notice dated 6.2.1997 was sent by Sri Vikash Kumar, Advocate. It is alleged that notwithstanding repeated reminders, legal notice furnishing indemnity bond, affidavit, demand draft for Rs. 300/- towards advertisement expenses, the accused persons did not issue duplicate share certificates to Aarti Kumari which clearly displayed the dishonest, fraudulent and malafide intentions of the accused persons. On the aforesaid facts it was averred that the accused persons having entered into a conspiracy had retained the share certificates for wrongful gain to themselves as also to grab the dividend declared by the Company and accordingly the accused persons have committed fraud upon the complainant's daughter and consequently cheated her and are liable to be prosecuted for breach of trust.

(3.) THE learned Counsel for the petitioners further sought to submit that although a Title Suit was filed as far back as in 1997, no injunction order had been obtained and to put pressure on the Company the instant complaint case came to be filed on 6.7.2001. It was also sought to be submitted that the said Title Suit was dismissed for default on 24.6.2000 and restored on 7.2.2003. It was also sought to be submitted that from the averments in the complaint a criminal case against the petitioners was not made out and at best it could be said that a clear case of civil dispute had been made out which could be decide only by a Civil Court. Since the petitioners had no hand in the transfer of the share certificates which were effected by Registrar, no criminal liability could be fastened on the petitioners. In support of the submissions, the learned Counsel has referred to the reported decisions in G. Sagar Suri and Anr. v. State of U.P., , wherein it was held that it is to be seen if a matter which is e essentially of a civil nature has been given a cloak of criminal offence and that criminal proceedings are not a shortcut of other remedies available in law. Referring to the decision on M.L. Dalmia v. State of Bihar, reported in 2006 (3) PLJR 331, the learned Counsel sought to point out that the Patna High Court in the said decision had deprecated the practice of filing of criminal cases which out and out fall within civil disputes and lower courts also without applying judicial mind and examining the facts disclosed in the complaint case take cognizance and proceed to prosecute the accused. Referring to the case of Hriday Ranjan Prasad Verma v. State of Bihar, reported in AIR 2000 SC 2341 and Nageshwar Prasad Singh v. Narayan Singh, , the learned counsel for the petitioners sought to point out that criminal case in disputes of purely civil nature are not maintainable and that where a civil proceeding is pending on the same set of facts and the dispute is of civil nature, institution of criminal proceeding is not maintainable and is fit to be quashed.