A. Rajasekhar Reddy, J. - (1.) THE present Company Application is filed seeking a direction to register a complaint against Sri Samson Arthur and Sri N. Chandrasekhar Rao under Sections 191, 192, 193 and 209 of the Indian Penal Code, 1860.
(2.) THE case of the applicant is that Company Petition 30 of 2012 was filed against the applicant seeking winding up of the applicant company on the basis of the amounts allegedly due for services purportedly rendered to the applicant and a winding up order was passed against the applicant company on 06 -07 -2012 on account of collusion between the petitioner in C.P. No. 30 of 2012 (hereinafter known as petitioner) and Sri Samson Arthur and Sri N. Chandrasekhar Rao, who admitted the liability of the applicant towards the petitioner. It is stated that Quinn Logistics Sweden AB (in bankruptcy) (QLS) which is holding company of the applicant filed an application for recalling winding up order and this Court recalled the said winding up order on 13 -08 -2013. It is stated that Sri Samson Aruthur and Sri N. Chandrasekhar Rao have wrongfully admitted liability of the applicant towards the petitioner and the applicant contends that no dues are payable by it to the petitioner who colluded with Sri Samson Aruthur and Sri N. Chandrasekhar Rao and initiated proceedings against the applicant on the basis of false claims. The applicant, among other things, stated that on 13 -06 -2012 an affidavit has been purportedly filed in the company petition on behalf of the applicant by Sri N. Chandrasekhar Rao wherein he stated that the applicant company does not have any assets at all and is not operating for the last one and half years since January 2010, but the audit report, which has been accepted by Sri N. Chandrasekhar Rao, states that the applicant company has sufficient assets in terms of monies i.e. INR 62,91,40,790 owned to it by Mack Soft and acknowledged in the Audit Report. It is also stated that no mention has been made by Sri N. Chandrasekhar Rao before the Court of the dilution of shareholding of the applicant in Mack Soft, which is subject matter of challenge in O.S. No. 21 of 2012 and on the contrary, in the affidavit before the Court sworn on 13 -06 -2012 stated that the applicant company is not operating from last more than one and half years and the above material was suppressed by Sri N. Chandrasekhar Rao regarding dilution of shareholding constitutes suggestion of falsehood in terms of the maxim suppression very suggestion falsi. It is further stated that on 15 -06 -2012 in another affidavit filed in the Company Petition seeking extension of time for providing the books of accounts of the applicant to the Official Liquidator, Sri N. Chandrasekhar Rao stated that the records of the company are in bad shape and the applicant company is in the process of compiling the complete records in order to file the same before the Official Liquidator and the records of the applicant company have not been filed before the Official Liquidator. It is further stated that Sri N. Chandrasekhar Rao filed an application on behalf of Mack Soft in O.S. No. 21 of 2012 under Section 446 of the Companies Act, 1956 seeking stay of further proceedings in O.S. No. 21 of 2012 on account of passing of winding up order against the applicant company dated 06 -07 -2012. It is further stated that after falsely admitting the liability towards the petitioner and collusively obtaining a winding up order against the applicant, Sri N. Chandrasekhar Rao by filing the application under Section 446 of the Companies Act sought to utilize the order dated 06 -07 -2012 to prevent the bankruptcy receiver for QLS from further proceeding in its attempts from controlling the affairs of Mack Soft and thereby perpetrated the abuse of process of the court.
(3.) THE applicant company further stated that in response to the company petition filed by the petitioner, Sri Samson Arthur filed counter affidavit purportedly acting on behalf of the applicant, wherein Sri Samson Arthur stated that in view of the fact that the applicant company was in financial difficulty, it could not make the payment to the petitioner and that in view of financial difficulty that the company was facing it was unable to make the payment. Sri Samson Arthur further stated that the reason for non -payment is the continued financial crunch that the respondent company as is presently facing and requested the petitioner to bear with the company in view of ongoing financial crunch and has been trying to clear the outstanding dues of the petitioner by trying to arrange funds from some other source. The applicant company further stated that Sri Samson Arthur stated the above facts falsely to his knowledge in contrast to the actual financial position of the applicant company. It is further stated that the averments made by Sri Samson Arthur in the counter affidavit are in contrast to the averments made by him in the caveat filed by him on 10 -02 -2012 wherein he claimed that the dues of the petitioner has been paid and the contradictory statements made by him in the affidavit is an abuse of process of the court. Even as per the Audit Report, the applicant company has lent monies to a tune of INR 62,91,40,970 to its subsidiary, Mack Soft. The petitioner further submits that the above facts clearly demonstrate that the proceedings in the company petition are collusive one and Sri Samson Arthur and Sri N. Chandrasekhar Rao have deliberately filed false affidavits before the Court and deliberately withheld material information from the Court and have concealed several relevant facts that were known to them and that the actions and conduct of Sri Samson Arthur and Sri N. Chandrasekhar Rao in making false statements, deliberately withholding relevant information and suppressing material facts from the Court, reflect their willingness to act in the interests of and at the instruction of the erstwhile management of the applicant company. As such, the present company application is filed seeking a direction to register a criminal case against Sri N. Chandrasekhar Rao and Sri Samson Arthur.;