IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3312 of 2008()
1. RANJAN VARGHESE, MANAGING DIRECTOR,
... Petitioner
Vs
1. K.G.MOHAN, S/O.GOVINDA PANICKER,
... Respondent
2. STATE OF KERALA, REP. BY THE PUBLIC
For Petitioner :SRI.SANTHAN V.NAIR
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :30/09/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
CRL.R.P.NO. 3312 OF 2008
............................................
DATED THIS THE 30th DAY OF SEPTEMBER, 2008
ORDER
This petition is filed under Section 397 and 401 of Code of
Criminal Procedure challenging the order passed by Additional
Chief Judicial Magistrate(Economic offence) Ernakulam in CMP
5211 of 2007 filed by petitioner to discharge him under Section
245(2) of Code of Criminal Procedure.
2. Learned counsel appearing for petitioner was heard.
The argument of the learned counsel is that under Section 621 of
Companies Act, no court shall take cognizance of any offence
against the act, which is alleged to have been committed by any
company or any officer thereof, except on a complaint in writing
by the Registrar or a shareholder of the company or a person
authorised by Central Government in that behalf and learned
Magistrate has taken cognizance of the offence without
producing any evidence to establish that the complainant/first
respondent is a shareholder of the company and learned
Magistrate should have discharged petitioner under Section 245
(2) of Code of Criminal Procedure. Learned counsel argued that
it is mandatory for petitioner to produce share certificate to
CRRP 3312/2008 2
maintain a complaint, as Section 621 provides that no court
shall take cognizance of any offence except on a complaint in
writing by either the Registrar or a shareholder of the company
and as it is not produced, learned Magistrate should have
allowed the application and discharged the petitioner.
3. On hearing the learned counsel, I do not find any reason
to interfere with the impugned order passed by learned
Magistrate. Section 245 of Code of Criminal Procedure provides
when an accused shall be discharged. Under sub-section (1) of
Section 245, if upon taking all the evidence as provided under
Section 244, Magistrate finds that no case against the accused
has been made out, which, if unrebutted, would warrant his
conviction, accused is to be discharged. Sub-section (2) provides
that nothing under the section shall be deemed to prevent a
Magistrate from discharging an accused at any previous stage of
the case, if for reasons to be recorded by the said Magistrate, he
considers the charge to be groundless. Before taking evidence
as provided under Section 244, for an accused to be discharged,
Magistrate should be convinced that if the allegations in the
complaint stands unrebutted, he cannot be convicted. The
complaint specifically allege that first respondent is a
CRRP 3312/2008 3
shareholder. If that allegation stands unrebutted, it cannot be
said that Magistrate is not competent to take cognizance as
provided under Section 621 of Companies Act or that if the
ingredients of the offence are made out, accused cannot be
convicted. I cannot agree with the argument of learned counsel
that this is a case for discharge because if the allegations in the
complaint stand unrebutted, charge against petitioner cannot be
groundless. Learned Magistrate in such circumstances rightly
dismissed the application for discharge. Petitioner is entitled to
take up the defence at the time of trial that first respondent is
not a shareholder and therefore bar under Section 621 of
Companies Act applies.
4. Learned counsel then submitted that petitioner could not
appear before the court as directed on 29.9.2008, and therefore
a non-bailable warrant was ordered and it is to be quashed. It is
for petitioner to appear before the learned Magistrate and seek
withdrawal of the non-bailable warrant. If such an application is
filed, learned Magistrate to pass appropriate order in accordance
with law.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-