IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 Crl.Rev.Pet.No. 3312 of 2008() ------------------------------ AGAINST THE ORDER DATED 06/09/2008 IN CMP 5211/2007 IN CC.809/2006 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... REVN. PETITIONER(S): PETITIONER ------------------------------- RANJAN VARGHESE, MANAGING DIRECTOR, M/S.VERTEX SECURITIES LTD, THOTTATHIL TOWERS, MARKET ROAD, ERNAKULAM-18. BY ADV. SRI.SANTHAN V.NAIR RESPONDENT(S): --------------- 1. K.G.MOHAN, S/O.GOVINDA PANICKER, SHREYAS, 31/364, THEKKUMBHAGOM, THRIPUNITHURA, ERNAKULAM DISTRICT. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PP SRI C M NAZER THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 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/-