Embed Size (px)
Citation preview
Amalgamation is sanctioned to bind the
shareholders, members & Creditors of the
Transferor & Transferee Company, the
Transferor companies shall stand dissolved
without the process of winding up.
04.12.2017 W P No.(C) 10536/2017 filed by M/s.
Wholesale Trading Services (company owned
by the Counsel for the Complainant and
represented by Sri R Subramanian) against the
Chartered Accountants of the Petitioner No.1
M/s K Ramkumar & Co for committing
professional misconduct in manipulating the
accounts of the Petitioner No 1 Company which
came to be dismissed by imposing costs of
Rs.10,000/-.
07.02.2018 Appeal No.362/2017 filed by the Complainant
against all the Petitioners, and the Trust Azim
Premji trust containing the verbatim same set of
allegation as alleged in the accompanying
Complaint before the NCLAT Delhi came to be
dismissed with cost of Rs.2,00,000/-.
17.08.2018 Order passed by the Regional Director,
Southern Region, Ministry of Corporate Affairs,
Chennai in a petition filed by the Petitioner No.4
against the 1st Respondent holding that the 1st
respondent has not commenced its business nor
carried out any services to the public as
enumerated in its MOA and its working as a
shadow company at the behest of R.
Subramaniyan, Counsel for the 1st Respondent
who is using 1st respondent as a tool to file
frivolous Complaints against the 4th Petitioner.
01.08.2019 W P No.(C) 808112019 & CM. APPLNS.
38345-3834 7 / 2019 file by Wholesale Trading
Services (a company owned by the Counsel for
the Complainant and represented by Sri R
Subramanian) against the Chartered
Accountants of the Petitioner No.1 M/s. N M
Raiji & Co. for committing professional
misconduct by manipulating the accounts of the
Petitioner No.1 companies which came to be
dismissed by imposing costs of Rs.10,000/-.
01.08.2019 WP (C) 807112019 file by Wholesale Trading
Services (a company owned by the Counsel for
the Complainant and represented by Sri R
Subramanian) against the Chartered
Accountants of the Petitioner No.1 Mr H Anil
for committing professional misconduct by
manipulating the accounts of the Petitioner No.1
companies which also came to be dismissed
with cost of Rs.1,00,000/-.
11.09.2019 Writ Appeal filed seeking to challenge the order
passed by the Learned Single Judge in LPA
58612019 & CM Nos.40450, 40451,
14045212019 and the same was dismissed.
BRIEF FACTS OF THE CASE
The Petitioners are prudent businessman in the field of
Software Technology for the past close to five decades. The 1st
Petitioner is a philanthropist in letter, word and true spirit. He had
certainly closely held companies by the name Vidya Investment &
Trading Co., Pvt. Ltd., Regal Investment & Trading Co., and
Napean Investment & Trading Company Pvt. Ltd., wherein the 1"
petitioners have made substantial allocation of their share of
profits they earn from the Company promoted by them by the
name WIPRO Ltd.,
That for better and smoother operation these companies
were amalgamated into the 4th Petitioner in a scheme of
amalgamation approved by this Hon'ble Court. Thereafter the
Petitioners have also for the purpose of philanthropic activity
transferred the shares in WIPRO which is coupled with regular
dividends and bonus payouts. As things stand the value of money
transferred for the purposes of philanthropic activity is a sum of
Rs.1,50,000/- Crores. Through the Trust the Petitioners are
conveying their hard earned money for the benevolence of various
public purpose activity. This is one of the largest payout by owners
of public limited company going back their hard earned money for
philanthropy known to mankind as on date. The Advocate of the
1st Respondent had promoted several companies for the purposes
of deceiving the public at large and has also deceitfully induced
the 4th respondent to invest a sum of Rs.350 Crores in one of his
shell company which investment is entirely wiped out. The
Counsel for the 1st respondent has also deceitfully and
fraudulently induced the 4th Petitioner to make certain
investments in his shell companies and had issued cheques to
safeguard the said investment. These cheques have since returned
unpaid and the 4th Petitioner has initiated proceedings under
Sec.138 of N I Act to recover a sum close to Rs.32 Crores. The
Counsel for the 1st respondent in an attempt to arm-twist the
petitioners herein had filed several disputes before the NCLT,
NCLAT, High Court of Delhi and similar platforms. All the
petitions have been, dismissed with costs. In the meanwhile the 4 th
Petitioner had initiated proceedings before the Regional Director,
Corporate Affairs, Chennai against the 1st respondent and after
hearing the parties, the sanction granted to the 1st respondent
under Sec.25 of the Companies Act has since been recalled.
In the meanwhile the 1st respondent has initiated a private
complaint before the learned Special Judge seeking to prosecute
the Petitioners herein for offences punishable under Secs.409, 34,
120B of IPC r/w 13 (1) (d) r/w 13 (2) of the P C Act. The learned
Special Judge without even examining the fraudulent activity
resorted by the Counsel for the 1st Respondent has been pleased
to take cognizance for the alleged offences without application of
mind in a mechanical manner and have been pleased to issue
summons to the petitioners herein. Aggrieved by the issuance of
process, the Petitioners prefer the instant petition seeking to quash
the entire proceedings in the interest of justice.
Bengaluru
Date: 20.02.2020 ADVOCATE FOR PETITIONERS
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Criminal Petition No. 1496 / 2020 (482)
(MEMORANDUM OF CRIMINAL PETITION FILED UNDER
SECTION 482 OF THE CRIMINAL PROCEDURE CODE)
IN THE COURT OF THE XXIII ADDL CITY CIVIL &
SESSIONS JUDGE AND SPECIAL JUDGE FOR
PREVENTION OF CORRUPTON ACT OF BENGALURU)
(CCH-24)
PCR NO. 2/2018
IN THEHGH COURT OF KARNATAKA AT BENGALURU
CRIMINAL PETITION NO. 1496/2020
RANK OF THE PARTIES
BEFORE
Trial Court High Court
1. Shri Azim Hasham Premji S/o Shri. Mohd. Hasham Premji Aged about 74 Years, Survey No.75, 133, 135/1, 136/1 No.574, Doddakannelli Village Sarjapur Road, Accused Petitioner Bengaluru-560035 No.1 No.1
2. Mrs. Yaseem Azim Premji
W / o Shri Azim Hasham Premji Aged about 72 Years, Survey No.574, Doddakannelli Village Sarjapur Road, Accused Petitioner Bengaluru-560035 No.2 No.2
3. Mrs. Yaseem Azim Premji
W / o Shri Azim Hasham Premji Aged about 72 Years, Survey No.574, Doddakannelli Village Sarjapur Road, Accused Petitioner Bengaluru-560035 No.2 No.2
4. M/s Hasham Investment & Trading Company Pvt. Ltd. No.134, Next to Wipro Corporate office Doddakannelli Sarjapur Road, Accused Petitioner Bengaluru-560035 No.4 No.4 Rep. By Pagalthi Varthi Srinivasan
AND: 1. India Awake for Transparency
No. 24, Desika Road, Mylapore Chennai-600004 Complainant Respondent Rep by Sri P Sadanand Gaud No.1
2. Sri G Venkateswara Rao
Chartered Accountant Partner M/s Ramraj & Co., Chartered Accountants No.65, IV Floor, 29th Cross Geetha Colony, 4th Block Jayanagar, Accused Respondent Bengaluru-560011 No.4 No.2
The Petitioners above named respectfully submit as follows:
1. The address of the Petitioners is as shown in the cause title
and for the purposes of summons and notices of this Hon'ble Court
may be served upon M/s Ravi B. Naik Associates, Advocates,
No.26j23-A, Abshot Layout, Bengaluru-560052. The Address of
the Respondents for similar purposes is as shown in the cause title.
2. The petitioners aggrieved by the registration of the Private
Complaint by the Respondent No.1 for commission of offenses
punishable under Section 409, 34, 120 (B), 13 (i) (d) R/w Section
13 (2) of the Prevention of Corruption Act before the trial court,
the order of the Learned trial court in taking cognizance for the
above stated offenses by order dated 27th January 2020 and
issuance of summons to the petitioners herein, prefer to present the
accompanying Criminal Petition seeking to quash the entire
proceedings on the following facts and amongst other grounds.
BRIEF FACTS OF THE CASE
3. The Petitioner No.1 is the promoter of Wipro Ltd, a large
limited company in India and at the New York Stock exchange,
employing approximately 1,80,000 employees, with an annual
turnover of US $ 8.5 Billion in convertible foreign exchange is
also one of the largest software service exporters from India.
Under the leadership of the Petitioner No.1, the market
capitalization of Wipro Limited is pegged at Rs.1,56,440/- crores.
As things stand, the promoters of Wipro Limited consist of the
Petitioner No.1 & 2, and their children, closely held private
companies, three partnership firms and trust and beneficiary
companies for advancing philanthropic activities
4. It is submitted that the Petitioners No.1 & 2, and the
Petitioner No. 3 had interests also in private companies viz, (a)
M/s Napean Trading & Investments Company Private Limited
incorporated in the year 1974, (b) M/s Regal Investment &
Trading Company Private Limited incorporated in the year 1974
and (c) Vidya Investment and Trading Company Private Limited
incorporated in the year 197 4, as these companies were also part
of the promoter group of Wipro. These compan1es preferred to
file Company Application before the Hon’ble High Court of
Karnataka in Co.P.No.182/2014, c/w Co.P. Nos.183/2014,
184/2014 & 185/2014 seeking to be amalgamated with M/s
Hasham Investment & Trading Company Private Limited and
prayed for sanction of the scheme of amalgamation. The scheme
of amalgamation in Para 5 clearly stated that the equity shares of
Transferor Company No.1 were held equally by the Transferor
Company No.2 and by the Transferor Company No.3. Similar
facts of equity shares of Transferor Company No.2 and Transferor
Company No.3 cross-held equally by the other two Transferor
Companies was stated. These equity shares of the 3 Transferor
Companies which were cross-held amongst them will be cancelled
and extinguished pursuant to the scheme of amalgamation, is also
stated in Para 5. Further submissions were before the Hon'ble
Court on 25.07.2014 by the Transferor Companies and the
Transferee Companies inter alia, giving the summary of the assets
and liabilities as at 31.03.2014. In para 7 of the submissions by the
Transferee Company, it was brought out that the Reserves and
Surplus was a negative figure of Rs.1,69,15,76,239/- and thus
making it clear that the Transferee Company was incurring losses.
Likewise, the Transferor Company No. 1. Transferor Company
No. 2 and Transferor Company No. 3 in para 7 of their respective
submissions, had clearly stated that they had Reserves and Surplus
of Rs.19,06,99,03,428/-, Rs.9,45,18,36,693/-, and
Rs.9,74,45,80,627/- respectively, aggregating to
Rs.38,26,63,20,748/-. Thus, the scheme had conceived that upon
the amalgamation becoming effective, the Reserves and Surplus
of the Transferee Company would become positive arithmetically.
The Reserves and Surplus as at 31.03.2015 stood at, the increase
being the net profit earned for the year ended 31.03.2015 by the
amalgamated company being the Transferee Company since the
appointed date in the scheme of amalgamation was 01.04.2014.
The Hon’ble High Court was pleased to issue Notice to the
Regional director of Corporate Affairs, the official liquidator, as
also the petitions seeking sanction of the scheme was published in
leading newspapers. The O L attached to this Hon’ble Court had
appointed the Chartered Accountants M/ s Ramraj & Company
who after verifying the records has opined that the Transferee
companies and the Transferor Company had not committed affairs
against the public interest. The Regional Director had authorized
the registrar of companies to examine the scheme of
amalgamation.
5. At this juncture there was a requirement from the scheme
that since the Transferor companies were NBFCs, the Transferee
company was also required to register with the RBI as a NBFC.
However, upon an enquiry with the RBI and appreciation of the
scheme, it is held by the Hon’ble High Court of Karnataka with a
clear finding that the requirement of the RBI was not contrary to
law. Upon the scheme being widely publicized, no objections were
received, with a clear perspective that the Transferee company is
bound to meet the requirement of law, the scheme of
amalgamation was granted to bind the Shareholders, the members,
creditors of the Transferor and the Transferee companies. It is
clearly held by the Hon’ble High Court in the relief granted to in
this Petition that the Transferor companies shall stand dissolved
without process of winding up.
6. In a like manner, the Petitioners had also promoted M/s
Zash Investment and Trading Company Private limited and upon
an amalgamation petition coming to be filed before the Hon'ble
High Court of Karnataka, it was ordered to be amalgamated with
M/s Hasham Investment and Trading Company Private Limited
pursuant to the scheme of amalgamation being approved by the
Hon'ble High Court in C P No. 9/2016 and the Hon'ble High Court
has ordered that the Transferee company shall be dissolved
without being wound up.
7. It is submitted that the transferee companies had closely
held wholly owned subsidiaries by the names (a) Tarish
Investment & Trading Company (P) Ltd., (b) Zash Investment &
Trading Company Private Limited, (c) Prazim Trading &
Investment company (P) Ltd. That pursuant to the scheme of
amalgamation without winding up, Zash Investment & Trading Co
(P) Ltd amalgamated with Hasham Investment & Trading
Company (P) Ltd, the Petitioner No.4 herein.
8. The petitioner No.1 is also partner of the three partnership
firms, M/ s Hasham Traders, M/ s Prazim Traders and M/s Zash
Traders, which also form part of the promoter group of Wipro
Limited. For the purpose of advancing philanthropic activity, the
Petitioners No.1 & 2, through the Transferor Companies and the
three partnership firms constituted an irrevocable private trust by
the name (a) Azim Premji Trust, with (a) Azim Premji
Philanthropic Initiatives Private Limited and (b) Azim Premji
Foundation for Development as its two beneficiaries & Azim
Premji Trustee Company Private Limited, as the sole trustee.
9. The Petitioner No.1 who has earned every single penny
through his business activity in the software giant M/s WIPRO,
having retained close to 74 % of the listed shares, besides creating
job opportunity for 1,80,000/- persons has diversified his hard
earned money for the purpose of philanthropy and has created a
corpus for the said activity in the manner set forth below:
GIF FROM THE TRANSFEROR COMPANIES
a) Gifted 2,68,500 shares of WIPRO Limited valued @
Rs.200 Crores,
b) Gifted 41,70,000 shares of WIPRO Limited valued
@ Rs.306 Crores,
c) 21,30,00,000 shares from the Transferor companies
routed to the Trust for advancing philanthropic
activity totaling to 8. 7% of the listed shares, Book
Value Rs.44,43,120/- and market value amounting to
Rs.9,620. 18 Crores
GIFT FROM HE PARTNERSHIP FIRMS
DATE OF GIFT 22.02.2013
d) 22,55,27,000 shares of WIPRO Limited
e) the percentage of gift received is 12 % of the
shareholding
f) Value of the gift of shares in book value is
Rs.3,55,830/- while the market value is Rs.12,292/
Crores.
FURTHER CONTRIBUTION FROM THE PETITIONER
NO.1
g) Financial year 2016-2017 securities gifted valued @
Rs.5252 crores
h) the Petitioner No.1 has routed to the Trust 60 % of
his share of profits retaining only 5 % of the profits
received by him.
With this accomplishment of routing his hard-earned money
for the purposes of charity /philanthropy, Petitioner No.1 has
gifted a corpus valued@ Rs.1,50,000/- crores inasmuch as Azim
Premji Trust today stands to control 67 % of economic ownership
ofWipro Limited. It is submitted that only a brief knowledge is
humbly placed at the hands of this Hon'ble Court about the
Philanthropic activity as the same would be inappropriate and sub-
serve the cause intended inasmuch as the Trust instituted by the
Petitioner No.1 is doling out offerings to the cause of education,
human development, catering to the livelihood of under
privileged, coordinating government policy on education, started
University and initiated programmes for the benevolence of
teachers to make them a role model for the underprivileged
children so as to ensure quality education, public health
programmes, community development in remote areas where the
government has not yet percolated as also these underprivileged
will be effectively educated to make them the ablest of men which
is the vision of the Trust for which the corpus as it stands is valued
@ Rs.1,50,000/- crores and the trust activity is across the entire
nation. The University set up caters to a large section of the
society, as also today the trust caters to the requirements of the
poorest sections of the society to enhance their higher education
in a campus being set up in an extent of 80 Acres. The Trust has
identified many NPO's and has financed them to cater to the
vulnerable and disadvantaged and marginalized section of the
society, urban homeless, street children, etc. The programme to
provide nutrition to the pregnant mothers of Odisha has
remarkably reduced the child mortality rate.
10. It is submitted that the Respondent No.1 is represented by
its counsel R Subramanian who is none other than the promoter of
a Company called Subhiksha Trading Services Limited, who has
cheated the public, the financial institutions amounting to
hundreds of crores and today having digested the public funds has
surfaced with a benami organization to arm-twist such persons
whom he has swindled of their hard earned monies who have
initiated the legal recourse.
11. It is submitted that one of the companies belonging to the
Petitioner No.1 M/s Zash Investments and Trading Company
Private Limited had purchased 10% equity in Subhiksha from
ICICI Ventures who sold the equity they held in Subhiksha for a
whopping Rs.230 Crores. This entire money deceitfully caused to
be invested in Subhiksha has got defaulted and is impaired in value
i.e., no worth at all, that apart the Counsel for the Complainant and
the benami man of the Complainant entity further induced another
company owned by the Petitioner No.1 by the name Hasham
Investment and Trading Company Private Limited, the Petitioner
No.4 herein, to part with a sum of Rs.42 Crores as intercorporate
deposit loan and has defaulted on the payment and had issued
cheques to cover the loan exposure. The Petitioners through their
investment company M/s Hasham Investment Trading Company
Private Limited have initiated proceedings under Section 138 of
the N I Act and the Advocate for the Complainant is the Accused
No.2 and a warrant of arrest was also issued. The money
dishonored under the Negotiable Instruments Act is to the tune of
Rs.32,633 49,893/- (Rupees Sixty-Two Crores sixty-three lakhs,
forty-nine thousand eight hundred ninety-three). Copy of the
Complaint where the counsel of the complainant is arrayed as the
Accused No.2 is produced herewith.
12. The Petitioner No.4 had instituted a Petition before the
Court of the Ministry of Corporate Affairs at Chennai against the
Complainant under Section 8 (6) of the Companies Act 2013 for
the cancellation of the license issued to the complainant as the
same is put to misuse and to achieve illegal purposes. By order
dated 17.08.2018, the Regional Director has been pleased to
revoke/ cancel the license No. 102249 dated 22.06.2012 issued to
the Complainant. It is held in the order under discussion that the
Complainant is working as a tool of its Counsel Sri R Subramanian
who is using the Respondent No.1 to file frivolous complaints
against the Petitioner No.4. Through the instant complaint, the
Counsel of the Respondent No.1 has once again instituted the
complaint for vexatious prosecution and the trial at the time of
taking cognizance failed to segregate the grain from the chaff.
13. The very same counsel and the master mind of the
complainant none other than Sri R Subramanian had instituted the
below extracted cases against the persons indicated and the result
of the same is also extracted to the humble indulgence of this
Hon'ble Court as under:-
Sly No.
Date Description of Litigation Remarks of outcome
1. 4.12.2017 W P No. (C) 1053612017
filed
by M/s Wholesale Trading
Services (a company
owned by the Counsel for
the Complainant and
represented by Sri R
Subramanian) against the
Chartered Accountants of
Dismissed by
imposing
costs of
Rs.10,000/-
the Petitioner No.1 M/s K
Ramkumar & Co 1 for
committing professional
misconduct in
manipulating the accounts
of the Petitioner No1
Company.
2. 01.08.2019 W P No. (C) 808112019 &
CM.APPLNS. 38345-
3834712019 file by
Wholesale Trading
Services (a company
owned by the Counsel for
the Complainant and
represented by Sri R
Subramanian) against the
Chartered Accountants of
the Petitioner No.1 M/s N
M Raiji & Co. for
committing professional
misconduct by
manipulating the accounts
of the Petitioner No.1
companies.
Dismissed by
Imposing
costs of
Rs.1,00,000/-
3. 11.09.2019 Writ Appeal filed seeking
to challenge the order
passed by the Learned
Single Judge in LPA
58612019 & CM Nos.
40450, 40451,4045212019
Dismissed
4. 01.08.2019 W P (C) 807112019 file by
Wholesale Trading
Services (a company
owned by the Counsel for
the Complainant and
represented by Sri R
Subramanian) against the
Chartered Accountants of
the Petitioner No.1 Mr H
Anil. For committing
professional misconduct by
manipulating the accounts
of the Petitioner No.1
companies
Dismissed by
imposing
costs of
Rs.1,00,000/-
5. 07.02.2018 Appeal filed by the
Complainant against all the
Petitioners, and the Trust
Azim Premji trust
containing the verbatim
same set of allegation as
alleged in the
Dismissed by
imposing
costs of
Rs.2.00 Lacs
against the
Complainant.
accompanying Complaint
before the NCLAT Delhi.
14. As regards to the scheme of amalgamation, the entire
material as required as a mandate of the law was placed before the
Hon'ble High Court of Karnataka and the decision of the Hon'ble
High Court is extracted hereunder:-
Sly No.
Date Description of Litigation Remarks of outcome
1. 26.03.2015 Co. P No.183l2014,
18412014 & 18512014
between Hasham
Investment & Trading co.
Vs (a) Napean Trading &
Investment Company (P)
Ltd., VIs (b) Regal
Investment & Trading
Company (P) Ltd., V/s (c)
Vidya Investment &
Trading Company (P) Ltd.,
Scheme of
Amalgamation
is sanctioned
to bind the
shareholders,
members &
Creditors of
the Transferor
& Transferee
Company, the
Transferor
companies
shall stand
dissolved
without the
process of
winding up.
2. 2.09.2016 Co.P No. 9/2016 between
Zash Investment &
Trading Company Private
Limited
--do--
15. When things stood at thus, the respondent No.1 has
preferred to file a complaint numbered as P C R No.2/2018 before
the Trial Court on the allegation that the three companies stated
supra as Transferee Companies had assets and no debts, that the
Petitioners had no share or financial interest in them and upon the
scheme of merger the entire asset would rest with the Union of
India as escheat assets under Article 296 of the Constitution as
there is no owner, that the Petitioners had conspired together and
wanted to take away Rs.50,000/- crores though these amounts are
public monies in nature. That the assets of the amalgamated
companies would stand transferred to Petitioner No.4 which in
turn would be controlled by the Trust owned by the petitioner
No.1., that no consideration was paid towards the merger, that the
Accused No.5/ respondent No. 2 was appointed by the Hon'ble
High Court to submit report, after inspecting the books to see that
the merger did not affect public interest and shareholder interest.
That the Respondent No 2 had furnished false reports that the
Transferor was not a NBFC was suppressed as such the same and
the order came to be passed by the Hon’ble High Court.
16. It is submitted that the trial court did not at all, exercise due
diligence, appreciate the material on record, examined the
witnesses on oath, held that the documents produced by the
Respondent no.1 prima facie corroborates the facts stated by him
and went on to hold that the situation to refer for investigation and
filing of report, went on to hold that in the allegations against the
Accused persons, there is an element of criminal conspiracy to
have allowed the merger so as to cause huge loss to the state, went
on to hold that there are sufficient grounds available to proceed
further against the Accused and went on to direct the registry to
register the complaint and ordered for issue for summons against
the Petitioners herein to try them for offenses punishable under
Section 409, 34, 120 (B) of IPC, 13 (1) (d) r/w 13 (2) of the P C
Act , the petitioner herein being deeply aggrieved prefers the
instant criminal petition on the following amongst other grounds.
17. It is submitted that the petitioner has not preferred any
petition / appeal seeking to challenge the cause of action being the
taking of cognizance and issuance of summons that has since
arisen in the accompanying criminal petition.
GROUNDS
18. It is submitted that the complaint allegation is not at all the
truthful version, the trial court without application of mind to the
allegation, the material on record, proceeded in a mechanical
manner to take cognizance. Hence the order of the learned trial
Court for ordering for issuance of cognizance is opposed to facts
and circumstances and the law, and is hence liable to be quashed
at the hands of this Hon'ble Court.
19. The learned trial court failed to appreciate that the
Complainant had to first approach the jurisdictional police to file
a complaint and in case the same were not to be accepted, then the
Complainant as a recourse to section 154 (3) and in case of
inaction, then ought to have proceeded to file the complaint before
the Learned Judge for which the learned could have referred for
enquiry and filing of report under Section 156 (3) or perusing the
material on record if the satisfaction of the Learned Judge was
arrived at, take cognizance and issue summons to the Accused.
The Complainant has not at all followed the procedure stipulated
in law and hence the order for issuance of summons against the
Petitioners is bad in law and as such the entire proceedings being
vitiated, deserve to be quashed.
20. The Trial Judge failed to appreciate that there was
amalgamation accepted by the Hon'ble High Court after issuance
of Notices, adherence to the due process of law, the Ministry of
Corporate Affairs was a party, the regional Head of the RBI was
directed to furnish a report to the effect that the proposed
amalgamation was not opposed to public policy, reports of all
concerned were secured, the Hon'ble High Court applied its mind
and after ensuring that there was no impediment, approved the
scheme of amalgamation. The recital of facts by the Trial Judge
are the same as stated in Para XXX above, which were all before
the Hon'ble High Court of Karnataka and duly considered for
sanctioning the scheme of amalgamation and there is no element
of suppression of facts. Trial Judge holding that the reports which
were submitted to the scrutiny of the Hon'ble High Court is
virtually casting aspersions on the orders passed by the Hon'ble
High Court and leads to a dangerous situation where every order
passed by the High Court is to be tainted with criminality. The
Order of issuance of process where the allegations made in the
complaint, even if they are taken at their face value and accepted
in their entirety do not prima facie constitute any offence or make
out a case against the
accused/Petitioners.
21. The trial Judge failed to appreciate that the process of
amalgamation and the role of the Chartered Accountants involved
in the whole exercise was subjected to a writ petition before the
Honb1e High Court at Delhi and the Hon'ble High Court after
examining the allegations verbatim identical to the allegation
contained against the Accused No.5/ Respondent No.2 has been
pleased to dismiss the petitions filed by the Complainant together
as to exemplary costs. The uncontroverted allegations made in the
complaint and the evidence made available in support of the same
do not disclose the commission of any offence and make out a case
against the Accused persons. Hence the proceedings before the
trial court deserve to be quashed.
22. The Trial Court failed to appreciate that the scheme of
amalgamation was sought to be challenged by the Complainant on
the same set of allegations as contained in the complaint. The NCL
T Bengaluru dismissed the petition of the Respondent No.1 and
the complainant took up the same in appeal before the NCLAT
Delhi. The Hon'ble NCLAT Delhi was pleased to dismiss the
appeal by imposing costs of Rs.2.00 Lacs. Hence, where the
allegations made in the complaint are so absurd and inherently
improbable on the basis of which no prudent person can ever reach
a just conclusion that there is sufficient ground for proceeding
against the accused to prevent the abuse of process of the court and
secure the ends of justice. The proceedings are hence liable to be
quashed.
23. The Trial Court failed to appreciate that the proceedings
against the Petitioners are dismissed before the Hon'ble High
Court, the NCLAT Delhi, before the Regional Director of
Company Affairs, it is held that even six years after the
incorporation of the respondent No.1 under Section 8 (1), the
Respondent No.1 had not started any business nor carried any
services to the public but was working as a shadow company of
the counsel for the Complainant at the behest of R. Subramanian
who was using the Respondent No.1 as a tool to file frivolous
complaints against the Petitioners. Based upon the above recorded
observation, the respondent company license was cancelled.
Hence there is a virtual express legal bar engrafted under the
Companies Act to the Respondent No.1 from instituting such
complaints against the Petitioners herein.
24. The Trial Court failed to appreciate that the Complainant
had given a false affidavit that no complaint has been filed in any
other Court touching on the subject matter of this complaint other
than those set out. The Complainant had filed separate complaints
dated 01.11.2016, 14.03.2017 and 28.04.2017 addressed to RBI
Governor, authorities of the Union of India and followed it up
through a writ petition before the Hon'ble High Court of Delhi
stating the very same questions as set out in the seeking directions
that the complaints be disposed-off. The Hon'ble High Court of
Delhi had issued such directions. The Union of India through the
Regional Director had clarified vide letter dated 10.11.2017 and
the same issues already clarified in the said letter are constructed
as complaints before the Trial Court.
25. The Trial Court failed to appreciate that the material on
record indicated that the criminal proceeding is manifestly
attended with malafide intent and the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on the
petitioners/ accused and with a view to spite them, due to private
and personal grudge. Hence the proceedings are absurd and
vexatious and deserve to be quashed as the trial would amounts to
abuse of due process of law.
26. As regards to the comm1sswn of offenses punishable under
the P C Act is concerned, it is settled in law that the private persons
and not public servants as defined under Section 21 of IPC and
hence cannot be tried for the commission of offenses under the
said Act. As regards to Section 409 IPC, the Petitioners are neither
bankers, merchant, broker, attorney, that the Petitioners owns the
entire shares he has transferred to the Trust by way of gift
amounting to Rs.1,50,000/- crores, the question of committing
breach of trust of these shares does not arise, here it is to be noticed
that all the Petitioners have transferred their monies for the
furtherance of the philanthropic activity of the trust and have not
had any common intention to do a criminal act in furtherance of
common intention, the ingredients of criminal conspiracy is
patently absent given the scheme of the activity initiated by the
Petitioners through the trust. The continuance of the criminal
proceedings as stated supra would only give raise to the irresistible
conclusion that the same 1s absurd and deserves to be quashed.
27. Viewed from any angle the proceedings before the court
below are absurd and illegal and deserve to be quashed, the
petitioners crave liberty to urge additional grounds at the time of
arguments.
PRAYER
WHEREOF, the Petitioner most humbly prays that this
Hon’ble Court may be pleased to quash the Complaint, order dt.
18.06.18 taking cognizance and the entire proceedings in PCR
No.2/2018 pending on the file of the XXIII Additional City Civil
& Sessions Judge, Bengaluru on the complaint filed by the
Respondent No.1 against the Petitioners for offences punishable
under Secs. 409, 34, 120 (B), 13 (1) (d) r/w 13 (2) of the PC Act
in the interest of justice and equity.
Bengaluru
Date 20.2.2020 ADVOCATE FOR PETITIONERS
Ravi B Naik Associates
Advocates
# 26/23A, Abshot Layout,
Sankey Road Cross
Bangalore – 52 Tel: 22253726,
22284818
