HERDILLIA Vs. MS APARAJITA CHAUHAN

JUDGEMENT

(1.) THIS petition under Section 482 of the Criminal Procedure Code, 1973, has been filed to set aside the order dated May 2, 1998, and to quash the criminal complaint and proceeding pending against the petitioners in the court of the Special Judicial Magistrate (Economic Offences), Rajasthan, Jaipur.

(2.) IN short, the facts of the case are that the respondent had submitted a joint application along with her sister, Ashiya Chouhan, seeking allotment of 200 shares each and for that purpose the required amount was remitted by cheque. They were allotted 100 shares each. According to the respondent, the company failed to deliver the share certificates till the filing of the complaint whereas the company was required to deliver the shares within three months from the date of allotment by registered post at the registered address of the applicant. Therefore, a complaint was filed in the Court of the Special Judicial Magistrate (Economic Offences) Rajasthan, Jaipur, against the present petitioner and others. The learned Magistrate after recording the statement under Sections 200 and 202 of the Criminal Procedure Code took cognizance of the offence under Section 113(2) of the Companies Act, 1956, against the present petitioners.

(3.) LEARNED counsel submitted that the share certificates along with the refund of the balance amount were sent to the complainant -respondent by registered post but on account of lapse on the part of the Post and Telegraph Department the complainant -respondent did not receive the aforesaid share certificates and refund amount. The complainant submitted an application in the prescribed form for issuance of duplicate certificates along with the indemnity bond on August 3, 1993. After observing procedural formalities the duplicate certificates were sent by registered post to the respondent but just to pressurise the directors of the company, thiscriminal complaint has been filed concealing the true facts, no offence under Section 113(2) of the Companies Act is made out. He has also submitted on the basis of the pronouncement of the apex court in the case of Hanuman Prasad Gupta v. Him Lal [1970] 40 Comp Cas 1058 ; AIR 1971 SC 211, that as per the statutory prospectus which was issued by the peti -. tioner -company for commencement of the public issue in response to which the complainant had submitted her application for the allotment of shares, the letters of allotment and share certificates for equity shares and debentures, etc. were to be despatched by registered post at the applicant's sole risk. The registered office of the petitioner -company is situated at Mumbai. Section 113 read with Section 53 of the Companies Act makes it clear that it is permissible for a company to discharge its obligation by sending the share certificates, debentures, etc. through registered post. As the registered office of the company is situated at Mumbai, the Special Judicial Magistrate, Jaipur, has no territorial jurisdiction to try the case. Only the courts located at Mumbai had jurisdiction to entertain criminal complaint for the offence under Section 113 of the Companies Act. It has also been submitted that no complaint can be filed against the company and its chairman as the company had appointed a Registrar to the issue to handle all procedural formalities in the matter of processing of applications and despatching of allotment letters, share certificates or refund orders, etc. It was also made clear in the prospectus itself that the allotment orders, share certificates, refund orders, etc. will be sent at the sole risk of the applicant. The complaint has been filed after a lapse of 4 -5 years. Therefore, it is time barred. Learned counsel has submitted that to allow the proceedings in the criminal court amounts to abuse of the process of the court, therefore, this petition must be allowed and the complaint and the proceedings pending in the court of the Special Judicial Magistrate be quashed.