BAKEMANS INDIA PVT LTD Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) By way of filing the present petition under Section 482 Cr.P.C., the petitioners have prayed for quashing of FIR No. 301/2005 filed against them at Police Station, Kotegate, Bikaner.

(2.) As per the facts of the case as have been narrated in the instant petition, it is stated that the petitioner No. 1 is a Private Limited Company registered under the Indian Companies act, 1956 and is engaged in the manufacturing of biscuits. According to the petitioner firm, due to dispute with State Industrial Corporation of Maharashtra (hereinafter referred to as "SICM" only), SICM put lock on the factory of petitioners in the month of July, 2003. At the time of putting lock on the factory by SICM, manufactured material worth Rs. 2 crores was lying in the factory. It is further stated in the petition that non-petitioner No. 2Narendra Sharma was appointed as C&F agent by the petitioner company in the later half of 2002 and for this purpose he deposited Rs 7 lakhs as security in the company. It is also contended that he also sent some advance money, against which the company sent goods worth lakhs of rupees to him but during this process due to action taken by SICM, the remaining part of goods could not be sent to Narendra Sharma. It is further contended that the proceedings were initiated against the petitioner company by certain creditors before Hon'ble Delhi High Court for winding up of the company vide order dated 6-4-2004 whereby Hon'ble Delhi High Court directed to appoint Official Liquidator. Further on 17-7-2004, an order was made for auctioning the Company. Both the orders have been placed on record as Annexure-I and Annexure-2. In the petition, it is further stated that a complaint was filed by complainant, which is under challenge, alleging that he deposited Rs. 7 lakhs as security in the petitioner-company and also made payment of advance to the Company but when the goods in lie of said advance were not being sent to him, he made enquiry, then, he came to know that the Company has been closed and as such his money has not been returned to him. Thus, he filed the report for offence under Sections 406, 420 and 120-B IPC and thereafter investigation commenced.

(3.) It is contended by the learned counsel for the petitioners that in the list of creditors filed by the petitioner-Company before Hon'ble Delhi High Court, the name of complainant-Narendra Sharma has been shown at Serial No. 455. Meaning thereby, the petitioner-Company is not refusing its liability to pay the amount of complainant but the present FIR has been filed with mala fide intention and knowingly well that it is a case of civil nature and there has not been any dishonest intention at any point of time to cheat the complainant as it is an admitted fact that the petitioner-Company has disclosed that there is liability towards the complainant. It is further contended that company has already submitted detailed statement of account/books of account before the Official Liquidator including the list of creditors to whom the payment is to be made and now the matter is pending adjudication before the Official Liquidator. Further, it is contended that subsequent to aforesaid orders, even under the supervision of the Executive Court bids were invited and the bid of one M/s. Ceylong Biscuits Limited which was of Rs. 12.50 crores was found to be highest and the same was accepted. Learned counsel for the petitioners has also invited the attention of this Court towards Section 446 of the Companies Act and prayed that there is a bar for initiation of any proceeding against the Company where a winding up order is made or an official liquidator has been appointed as provisional liquidator. Further, it is contended that upon the aforesaid circumstances, the case is of civil nature and there was no dishonest intention on the part of the petitioner-Company, which is obvious from the admitted fact of the case that in the list of creditors filed before the official liquidator, the name of complainant is shown at Serial No. 455. Therefore, no offence under Sections 406, 420 and 120-B IPC is made out against the petitioners. The FIR against the petitioners as per the petitioner's case is nothing but an abuse of process of Court. So also, it is contended that upon a bare reading of FIR, no prima facie case disclosing cognizable offence is made out against the petitioners, it is prayed that attempt of filing FIR against the petitioner-Company is blatant misuse of process of Court. The Company was supplying the goods to the complainant earlier and subsequently the supply of goods was stopped because the company had been closed as per judicial order. The circumstances were beyond the control of the petitioners, therefore, it cannot be said that offence under Section 420 IPC is made out against the petitioners. It is prayed that the case is of civil nature and only on the basis of concocted false story that despite demand no payment of dues was made by the Company. It is contended by the learned counsel for the petitioner that first of all as per the provisions of Companies Act, no suit/legal proceedings can be initiated/commenced when a winding up order has been made or an official liquidator has been appointed as a provisional liquidator. Further, it is contended that police officer, investigating into the matter is subject to two conditions. Firstly, the police officer should have reasons to suspect the commencement of the cognizable offence and secondly the police official should subjectively satisfy himself as to whether upon perusal of FIR, any offence is made out for entering into investigation. It is contended that as per the FIR, it is clear that the facts are concocted one and the FIR has been registered under the influence of complainant without any contents of criminal offence and thus, as per the counsel for the petitioners, putting the personal liabilities of a citizen into danger. It is also contended that the complainant can approach the official liquidator for settlement of his claim as the same is already pending. While emphasizing upon the point of civil nature and disclosure of the name of non-petitioner No. 2 in the list of creditors, it is vehemently contended by the learned counsel for the petitioners that it is a case where powers under Section 482 Cr.P.C. may be exercised and FIR may be quashed.