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Complaint

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Quash – Private complaint – Ex-employees filed criminal complaint against the company on criminal charges – Magistrate took cognizance – petition for quash dismissed by High court – again filed the again dismissed – Apex court directed to pay the amounts of complainants and set aside the orders of magistrate and quashed the complaint = J.L. Soman & Ors. … Appellants Vs. State of Bihar & Anr. … Respondents = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41100

 Quash – Private complaint – Ex-employees filed criminal complaint against the company on criminal charges – Magistrate took cognizance – petition for quash dismissed by High court – again filed the again dismissed – Apex court directed to pay the amounts of complainants and set aside the orders of magistrate and quashed the complaint =  … Continue reading

Section 468 of the Cr.P.C – F.B .= Whether for the purposes of computing the period of limitation under Section 468 of the Cr.P.C the relevant date is the date of filing of the complaint or the date of institution of prosecution or whether the relevant date is the date on which a Magistrate takes cognizance of the offence? = Mrs. Sarah Mathew … Appellant Versus The Institute of Cardio Vascular Diseases by its Director – Dr. K.M. Cherian & Ors. … Respondents = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40992

Whether for the purposes of computing the period  of  limitation  under Section 468 of     the Cr.P.C the relevant date is the date of  filing  of  the  complaint  or  the  date  of   institution   of prosecution or whether the relevant date is the date on which  a    Magistrate takes cognizance of the offence? … Continue reading

for quashing the proceedings in Complaint Case No.628 of 2011 (Sudha Kant Pandey v. K.L. Singh & Anr.) under Sections 403 and 406 of Indian Penal Code, 1860 (hereinafter referred to as the‘IPC’).=A complaint made after a lapse of 15 years is barred by the provisions of Section 468 Cr.P.C., and the High Court has erred in holding the same to be a continuing offence. As, in pursuance of the High Court’s order dated 25.5.2001, the representation of respondent no.2 dated 21.3.2001 was decided by the Managing Director, IFFCO vide order dated 15.10.2001, the limitation period began from the date of the said order, or at the most from 29.10.2001, that is, the date on which, the order of rejection was communicated. The initiation of criminal proceedings is nothing but an attempt by the frustrated litigant to give vent to his frustration, by invoking the jurisdiction of the criminal court and thus, the proceedings are liable to be quashed .= “In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case.-The instant appeals are squarely covered by the observations made in Kishan Singh (Supra) and thus, the proceedings must be labeled as nothing more than an abuse of the process of the court, particularly in view of the fact that, with respect to enact the same subject matter, various complaint cases had already been filed by respondent No.2 and his brother, which were all dismissed on merits, after the examination of witnesses. In such a fact-situation, Complaint Case No. 628 of 2011, filed on 31.5.2001 was not maintainable. Thus, the Magistrate concerned committed a grave error by entertaining the said case, and wrongly took cognizance and issued summons to the appellants. 34. In view of above, the appeals are allowed. The impugned judgment dated 13.3.2012 is set aside and the proceedings in Complaint Case No. 628 of 2011 pending before the Additional C.J.M., Allahabad, are hereby quashed.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 61 of 2013 Udai Shankar Awasthi …Appellant Versus State of U.P. & Anr. …Respondents WITH CRIMINAL APPEAL NO. 62 of 2013 J U D G M E N T Dr. B.S. CHAUHAN, J. 1. Both these appeals have been preferred against the … Continue reading

Negotiable Instruments Act, 1881-ss.141 & 138: Dishonour of cheque issued by proprietorship firm-Complaint against its employee-Held: Proprietary concern is not a company within meaning of s.141-Hence employee of such a concern cannot be proceeded against-Code of Criminal Procedure, 1973-s.482. Officence by company-Vicarious liability of the Director. Code of Civil Procedure, 1908-Order XXX, Rules 1 and 10-Partnership firm and proprietorship firm-Distinction between-Re-iterated. Respondent No. 1 filed complaint petition alleging commission of offence under Section 138 of the Negotiable Instruments Act. It was alleged that a cheque was issued by accused nos.2 to 6 for a sum of Rs. 2 Lakhs which on presentation was dishonoured. Accused no.1 was described as a business concern. Appellant arrayed as accused no. 3 was described as In charge, Manager, Director of accused no. 1. The Metropolitan Magistrate issued summons to the accused persons. Appellant filed application before High Court u/s. 482 CrPC for quashing the summons issued to him. The application was dismissed. Hence the present appeal. =Allowing the appeal, the Court HELD: 1. The concept of vicarious liability was introduced in penal statutes like Negotiable Instruments Act to make the Directors, partners or other persons, in charge of and control of the business of the Company or otherwise responsible for its affairs; the Company itself being a juristic person. [Para 8] [889-d] 2. A bare perusal of the complaint petition would show that the accused No. 1 was described therein as `a business concern’. It was not described as Company or a partnership firm or an Association of Persons. The description of the accused in the complaint petition is absolutely vague. A juristic person can be a Company within the meaning of the provisions of the Companies Act, 1956 or a partnership within the meaning of the provisions of the Indian Partnership Act, 1932 or an association of persons which ordinarily would mean a body of persons which is not incorporated under any statute. A proprietary concern, however, stands absolutely on a different footing. A person may carry on business in the name of a business concern, but he being proprietor thereof, would be solely responsible for conduct of its affairs. A proprietary concern is not a Company. Company in terms of the explanation appended to Section 141 of the Negotiable Instruments Act, means any body- corporate and includes a firm or other association of individuals. Director has been defined to mean in relation to a firm, a partner in the firm. Thus, whereas in relation to a Company, incorporated and registered under the Companies Act, 1956 or any other statute, a person as a Director must come within the purview of the said description, so far as a firm is concerned, the same would carry the same meaning as contained in the Indian Partnership Act. In view of the said description of “Director”, other than a person who comes within the purview thereof, nobody else can be prosecuted by way of his vicarious liability in such a capacity. If the offence has not been committed by a Company, the question of there being a Director or his being vicariously liable, therefore, would not arise. [Paras 7, 9 and 10] [889-c; E-g; 890-A] 3. Appellant categorically contended that accused No. 1 was a proprietary concern of the accused No. 2 and he was merely an employee thereof. If accused No. 1 was not a Company within the meaning of Section 141 of the Negotiable Instruments Act, the question of an employee being proceeded against in terms thereof would not arise. Respondent was aware of the difference between a `partnership firm’ and a `business concern’ as would be evident from the fact that it described itself as a partnership firm and the accused No. 1, as a business concern. Significantly, Respondent deliberately or otherwise did not state as to in which capacity the appellant had been serving the said business concern. It described him as in charge, Manager and Director of the accused No. 1. A person ordinarily cannot serve both in the capacity of a Manager and a Director of a Company. [Paras 11 and 12] [890-b-d] 4. The distinction between partnership firm and a proprietary concern is well known. It is evident from Order XXX Rule 1 and Order XXX Rule 10 of the Code of Civil Procedure. It is trite that a proprietary concern would not answer the description of either a Company incorporated under the Indian Companies Act or a firm within the meaning of the provisions of Section 4 of the Indian Partnership Act. [Paras 13 and14] [890-e; 891-d] S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, A.I.R. (2005) SC 3512, followed. Sahitha Ramamurthy & Anr. v. R.B.S. Channabasavaradhya, A.I.R. (2006) SC 3086 and S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2007) 3 SCALE 245, relied on. M/s. Ashok Transport Agency v. Awadhesh Kumar and Anr., [1998] 5 SCC 567, referred to. 5. For the reasons aforementioned, this Court is unable to agree with the High Court that no case had been made out for exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure. The complaint case against the appellant is quashed. [Paras 16 and 17] [891-f] G. Sivabalamurugan, Y. Arvnagiri and L.K. Pandey for the Appellant. Tatini Basu (for Sudhir Nandrajog) for the Respondent.

CASE NO.: Appeal (crl.) 485 of 2007 PETITIONER: Raghu Lakshminarayanan RESPONDENT: M/s. Fine Tubes DATE OF JUDGMENT: 05/04/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J U D G M E N T CRIMINAL APPEAL NO. 485 2007 [Arising out of S.L.P. (Crl.) No. 4211 of 2006] S.B. SINHA, J. Leave granted. Appellant before us … Continue reading

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