Tarun Agarwala, J. - (1.) THE petitioner, Piyush Rastogi, has filed the petition under Section 446 of the Companies Act, 1956 read with Rule 9 of the Companies (Court) Rules, 1959 for the quashing of all Civil and Criminal proceedings pending in various Courts, especially Criminal Case No. 2092 of 2005 pending in the Court of Special Judicial Magistrate, Lucknow and also prayed for absolving the petitioner from any civil or criminal liability in connection with the affairs of the Company, namely, Moulik Finance and Resorts Limited.
(2.) THE brief facts leading to the filing of the petition is that the petitioner alleged to be the subscriber and Director of the Company known as Moulik Finance and Resorts Limited, a Company incorporated under the Companies Act, 1956 having its registered office at 301 -A and B, Govind Apartment, Shah Najaf Road, Lucknow, which was incorporated as a non -banking financial company. The object of the Company, amongst others, was to receive deposits from the shareholders, to lend money to its shareholders and to accept deposits from the members of the public through fixed deposits, etc. The petitioner contended that the Company, on account of the faulty policies of the Government and the Reserve Bank of India fell into a financial crunch and was not doing any business since January 1995 and that the petitioner had tendered his resignation on 1 -8 -1998 which was accepted by the Board of Directors and which was forwarded to the Registrar of the Companies. The petitioner alleged that certain complaints were filed by the members of the public, including a First Information Report against the Company and that certain petitions for winding up of the Company was also filed before the Company Court, Lucknow Bench of the Allahabad High Court wherein, the Official Liquidator was appointed as the Provisional Liquidator who had taken the charge of all the assets of the Company. The petitioner further alleged that the Reserve Bank of India also filed a complaint case No. 2092 of 2005 before the Special Judicial Magistrate, Lucknow which the Court took cognizance of it and issued summons and consequently the present petition was filed under Section 446 of the Companies Act alleging that the petitioner had no concern with the Company since he had resigned, and that, in any case, no leave was taken by the Reserve Bank of India to file a complaint from the Company Court under Section 446 of the Companies Act and consequently the proceedings pending before the Special Judicial Magistrate was void and was liable to be quashed. Sri S.P. Agarwal, another Director of the Company has also filed another Petition under Sections 446 and 633(2) of the Companies Act, read with Rule 9 of the Companies (Court) Rules praying also for the quashing of the complaint case No. 2092 of 2005 filed by the Reserve Bank of India before the Court of Special Judicial Magistrate, Lucknow and also for the quashing of the order dated 30 -9 -2004 passed by the Special Judicial Magistrate, Lucknow by which the Court has taken cognizance of the alleged offence. The petitioner has also taken the same grounds alleging that he was a sleeping Director and had resigned on 1 -4 -1998 which was duly accepted by the Registrar of the Companies and that the Court of Special Judicial Magistrate had wrongly taken cognizance of the alleged misfeasance against the Directors which could only be taken and proceeded by the Company Court under Section 633(2) of the Act. Further, no previous leave was taken by the Reserve Bank of India from the court under Section 446 of the Companies Act.
(3.) SINCE both the petitions are based on common facts and have prayed for the same reliefs, the same is being decided together.;