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IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
NAGPUR BENCH, NAGPUR.
COMPANY APPEAL NO.6 OF 2010
IN
COMPANY COMPLAINT APPLICATION NO.8 OF 2001
IN
OFFICIAL LIQUIDATOR REPORT NO.42 OF 2000
IN
COMPANY PETITION NO.1 OF 1998
APPELLANT: Shri Arun s/o Baburao Wadikar,
aged about 51 years, r/o c/o Hardas
Magam, Bail Bazaar, Kamptee, Distt.
Nagpur.
..VERSUS..
RESPONDENTS: 1. Official Liquidator, High Court,
Nagpur, havingt its office at 2nd Floor,
East Wing, New Secretariate Building,
Near V.C.A. Ground, Civil Lines,Nagpur.
2. Shri Sunil s/o Salenrao Ghorpade,
Plot No.64, Galli No.12, Vishwakarma
Post Office, Ajni, Nagpur.
3. Shri Purushottam Ramchandrao Malewar,
r/o 20 Surendra Nagar, Nagpur.
4. Shri Vijay Ramkrishna Khopde,
r/o Plot No.158, Bajaj Nagar, Nagpur.
5. Shri Digvijay Shingh s/o Ganbhirsing
Mohite, r/o Plot No.7, Near Aman Kirana,
Bajaj Nagar, Nagpur.
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Mr.S.S.Adkar, Adv. for the appellant.
Smt.Anita P.Shinde, Adv. for respondents.
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C
ORAM
: J.P.DEVADHAR AND
A.B.CHAUDHARI, JJ.
DATED : 29th September, 2010.
ORAL JUDGMENT: (Per A.B.Chaudhari, J.)
1. Heard.
2. Admit. Taken-up for final disposal with the consent of
learned counsel for the rival parties.
3. In the present appeal, there is a challenge to the
judgment and order dated 18th December, 2009, whereby the
learned Company Judge discharged accused nos.2 to 5 in a
Criminal Case registered as Company Complaint No.8 of 2001
under the Companies Act, 1956. Learned counsel for the
appellant restricted his submission saying that after the
registration of the said Criminal case, no application for
discharge from the criminal case was at all filed.
4. However, the learned Company Judge has discharged
accused nos.2 to 5 recording finding that they did not have
any involvement. According to him, in absence of any
application and opportunity to oppose any such move for
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discharge, impugned order could not have been made.
5. Per contra, Smt.Shinde, learned counsel for the
respondents, opposed this appeal and argued that the learned
Company Judge had come to conclusion, though before the
end of trial looking to the affidavit, that there was no
involvement of respondent nos.2 to 5 and therefore, no fault
can be found out with the impugned order, even if there was
no application for discharge in the criminal case that was
registered.
6. Having heard the learned counsel for the rival parties, we
find that the learned Company Judge recorded his conclusion
of non-involvement of accused nos. 2 to 5 on the basis of
affidavit namely that accused nos. 2 to 5 had resigned as
Directors much before and hence they were not involved. We
find that it is not legal and proper to rely on such a bald
statement in the affidavit without insisting for documentary
evidence. Further, since the criminal case was registered by the
learned Company Judge and the trial was on, in the absence of
any application for discharge, appellant and others had no
notice of proposed discharge. If the accused nos.2 to 5, who
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wanted to say that they should be discharged, they could have
done so only by filing regular application with notice thereof to
all concerned which could have been contested and then
learned Judge could have made adjudication as to whether
discharge could be made or not. We, therefore, find that this
minimum procedure of adjudication before making order of
discharge in the absence of application for discharge was not
followed. Reliance placed on mere affidavit to hold that there
was no involvement, without putting the appellant on notice
by application for discharge is violation of principles of natural
justice. In the result, we find merit in the present appeal. We,
therefore, make the following order.
7. Company appeal is allowed.
8. The impugned order dated 18/12/2009 passed by the
Company Judge in Company Complaint No.8 of 2001 is set
aside relating to only to discharge of accused nos.2 to 5. We
reserve liberty to accused nos.2 to 5 to apply for discharge if
so advised.
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Costs of the Company Appeal be paid by respondent nos.
2 to 5 to the appellant.
JUDGE JUDGE.
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