TaxTMI 
TaxTMI 
2021 (11) TMI 617
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....ort 'IPC') and all the subsequent proceedings pending in pursuance thereof, being misuse of process of law. For reference, facts are taken from CRM-M-12681-2021. Brief facts of the case are that the FIR was registered on a complaint given by respondent-complainant Rupinder Singh Gill against 22 persons including the petitioners, in which it is stated that all the accused persons intentionally and dishonestly conspired with each other in order to induce him for believing their pre-planned and dishonest representation, which ultimately proved to be false and further by fabricating and forging various documents, have caused huge financial loss as well as have committed the offence of dishonestly cheating him. It is further stated that two accused persons namely Nirmal Singh and Vidur Bhardwaj approached him in the presence of Amarjeet Singh Chatha and some other persons number of times and represented that they are promoters of Three C Group, in the real estate sector in NOIDA, District Gautam Budh Nagar (UP) and also in Gurugram, Haryana. It was represented that since they are facing acute liquidity problem and are interested in unblocking some of their investments in certain plot/....
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....irectors in four companies, by replacing the existing Directors and Form DIR-12 was supplied by the accused persons, showing resignation of the existing Directors. Later, on 14.08.2018, an agreement to purchase shares was executed, in which the complainant was to purchase 9999 equity shares, out of 10000 equity shares, of the aforesaid company, namely Acreage Properties Pvt. Ltd. The agreement was signed by the promoters of Three C Company, namely Nirmal Singh, Vidur Bhardwaj and Supreet Singh Suri. It is further stated in the FIR that after execution of the agreement, Nirmal Singh ensured that three new bank accounts, one each for Votive Propbuild Pvt. Ltd., Hacienda Infosoftech Pvt. Ltd. And Challengerz Web Solutions Pvt. Ltd. were opened in the Bank Branch decided by the complainant, namely Bank of India, Mohali and all the documents were signed by the newly appointed Directors of these companies. Later on, AGMs of Votive Propbuild Pvt. Ltd., Hacienda Infosoftech Pvt. Ltd. and Challengerz Websolutions Pvt. Ltd. was held on 29.09.2018 and AGM of Acreage Properties Pvt. Ltd. was held on 28.09.2018 at their registered offices and thereafter, three separate formal agreements to sell....
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....piracy with their employees/coaccused, the accused persons intentionally and dishonestly fabricated and forged certain documents and used the same for illegal purpose i.e. for opening three bank accounts of aforesaid three companies and then writing illegal letters regarding freezing of the accounts to the Branch Manager, Bank of India, Mohali, without informing to the complainant. Even three cheques dated 19.03.2019 issued by the authorized signatories of three companies in favour of Ragvinder Singh Gill were dishonoured by the Bank, on the pretext that the account has been suspended/freezed on the basis of letter dated 17.10.2018, written by Rajeev Baisoya and Ravi Bhargav. From the Bank, the complainant came to know about letter issued by the accused, which reflects their mind about committing intentional and fraudulent act of fabricating and forging the documents. It is further stated that sensing the criminal conspiracy hatched by the accused persons, new management of three companies, as an abundant precaution, got the amount deposited in three bank accounts in Mohali and got converted it into Fixed Deposits in the name of three respective companies. It is further stated that....
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....esaid three companies dated 29.09.2018, Additional Directors were not confirmed and in this regard, communication was sent to the Registrar of Companies. It is also argued that essential ingredients of offence of cheating, forgery and criminal breach of trust are not made out, as neither there is any inducement or wrongful gain to the petitioner and even there is no corresponding wrongful loss to the complainant. Learned senior counsels have relied upon a judgment of the Hon'ble Supreme Court in Heera Lal Vs. CBI, 2003 (5) SCC 257, in which it is held that to constitute the offence of cheating, firstly there should be fraudulent or dishonest inducement of a person by deceiving him; secondly, the person, so deceived, should be induced to deliver any property to any person or to give consent that such person shall retain any property; and thirdly, the person, so deceived, should be intentionally induced to do so or omit to do anything, which he do not do, if he was not so deceived. It is further submitted that allegation of preparation of forged documents is also not proved, as it is held by the Hon'ble Supreme Court in Mohd. Ibrahim and others Vs. State of Bihar and another, 2009 (....
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....r registration of FIR. It is thus submitted that FIR is just a counter-blast to the proceedings initiated under Sections 241/242 of the Companies Act by way of filing company petitions. Learned senior counsels have referred to different paragraphs of the FIR and tried to give a reply that allegations are incorrect, however, within four corners of powers under Section 482 Cr.P.C., being disputed facts, same are not considered and are not referred for the sake of brevity. Learned senior counsels, with reference to the agreement to sell dated 08.10.2018, have argued that the same was entered into with mutual understanding of the parties, as the complainant had agreed to sell, transfer and alienate all their rights, title, interest, benefits etc. in the entire shareholding of the company, therefore, the complainant has several remedy. With reference to the reply filed before the NCLT on behalf of the complainant, it is submitted that in para No.4, it is stated that registered office of the petitioner's company is in New Delhi, however, it was stated that petition is not maintainable. Status report by way of affidavit of Superintendent of Police (Investigation), Police District Khann....
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....ise powers like an appellate Court. It is also held that at the stage of investigation, the High Court could not appreciate the evidence and cannot draw its own inference from contents of the FIR and the material relied upon. It is submitted that from bare perusal of the FIR, it is apparent that intention of the petitioners/associate promoters and other accused is dishonest and under a pre-planned conspiracy, they allured the complainant/associate directors for entering into agreements to sell, though at the very inception, the accused had no intention to abide by the same, as they intentionally concealed the fact that their motive was to usurp the money and in that process, they were having talks with M/s Max Estates Ltd. for sale of the properties. Learned State counsel has also supplied a list of some other FIRs, which are pending against the accused persons in NCR region with regard to similar allegations and submits that they are habitual of committing such offence. The detail of the criminal complaints/FIRs reads as under: - Sr. No. FIR No., Date and offences Accused persons Complainant 1. 74 dated 24.03.2018, P.S. EOW, District EOW Delhi, under Sections 420, 409, 1....
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.... the police at Khanna, Punjab has jurisdiction to take cognizance of the same. It is also submitted that principle of jurisdiction in civil law i.e. place of defendant's residence or office is not applicable to the criminal proceedings and both are on different footings. In reply to the allegations that no money has been paid by the complainant in lieu of three share purchase agreements, it is argued that the complaint and the FIR have nothing to do with whether specific performance of Agreements to Sell were executed between the complainant and Challengerz Web Solutions Pvt. Ltd., Votive Propbuild. Pvt. Ltd., Hacienda Infosoftech Pvt. Ltd. It is further submitted that the petitioners have dishonestly and wrongly claimed that they have received no money in lieu of three Agreements to Sell dated 08.10.2018. The truth is explicitly recorded in "Clause 1" of each of the respective Agreement to Sell dated 08.10.2018, which is duly acknowledged by both promoters Nirmal Singh and Vidur Bhardwaj, by signing each of these three Agreements to Sell. The complainant was allured to purchase properties of these three companies and paid part payments on 11.09.2018. The accused persons convinced....
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....cused right since 17.10.2018 have been to somehow grab back these 03 companies and their plots, they have till today not even applied for getting the statutory approvals from the Income Tax Department, regarding the fair market values of the entire equity shares of these 03 companies; for getting the mandatory time extension permissions from NOIDA Authority to the already expired time limits for making the projects on these plots functional after paying the statutorily leviable extension charges, the up-to-date no dues certificate etc; from the Collector, Gautam Budh Nagar regarding the applicability of stamp duty on the transfer of these equity shares etc. It is further argued that the fraud, cheating and criminal conspiracy committed by the accused persons is also evident from the fact that they dishonestly made one of their Three C Group company, Three C Builders Pvt. Ltd. and wrote a totally fraudulent letter dated 25.10.2018 to the Collector, Gautam Budh Nagar mischievously claiming that there are sale considerations to be received from the complainant by them for the sales of plots of Votive Propbuild Pvt. Ltd. and Hacienda Infosoftech Pvt. Ltd. and got these plots attached ....
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....ckdating documents and misusing these against the complainant, cannot be considered in the said Company Petitions, filed under Sections 241 & 242 of the Companies Act, 2013. The main issue before the NCLT is to ascertain who are the duly appointed directors of these companies, whereas in investigation by the Khanna Police, the commission of offence by the accused, which are punishable under Sections 420, 406, 465, 467, 468, 469, 470, 471 & 120-B IPC is to be seen. It is further submitted that the criminality of actions of the accused persons, including forgery of documents, is found in investigation by the police. Learned senior counsel has further submitted that not only the accused persons intentionally forged and backdated the documents attached to the email dated 14.01.2019, sent by Sh. Gopal Krishanan Ramachandran of MAX Estates Limited to the complainant, but the accused persons, in conspiracy with others, made further serious efforts to execute criminal conspiracy to defraud the complainant, out of the valuable commercial property, Floor 13, Tower H, Delhi, One Project, Sector 16B, Noida, owned by him through Acreage Properties Pvt. Ltd. The WhatsApp chats between accused V....
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....to intentionally and dishonestly mislead different statutory authorities, namely, ROC, SSP Gautam Budh Nagar, District Magistrate Gautam Budh Nagar and NCLT New Delhi. ii) Two different and forged/backdated sets of Notices for alleged AGMs, dated 29.09.2018 and their Agendas, dated 19.07.2018 and the other undated and one set of minutes of the alleged AGM, allegedly held on 29.09.2018, which have been misused by the accused to intentionally and dishonestly mislead different statutory authorities, namely, ROC, SSP Gautam Budh Nagar, District Magistrate Gautam Budh Nagar and NCLT New Delhi. iii) Documents regarding the alleged EGMs dated 01.09.2018 of Votive Propbuild, Hacienda Infosoftech and Challengerz Websolutions, referred to in the fraudulent letters dated 17.10.2018, written by the accused persons to the Branch Manager, Bank of India, Phase-9, Mohali, for getting the Bank accounts, opened on 11.09.2018, frozen. iv) The following documents attached with the email dated 14.01.2019 of MAX Estates Limited to the complainant:- a) The so called Agreement for surrender of Area, dated 21.05.2018 by Acreage Properties Pvt. Ltd. and others; b) The so called No Objection Certif....
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....ch is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; vi) Criminal proceedings ought not to be scuttled at the initial stage; vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule; viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C. ix) The functions of the judiciary and the police are complementary, not overlapping; x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice; xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. The....
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....erein the Hon'ble Supreme Court held that the High Court has no power to direct that accused be not arrested during the investigation or if the accused surrenders, he be enlarged on bail, while deciding a petition under Section 482 Cr.P.C, as such direction would not commend acceptance, because they neither come within the sweep of Article 226 of the Constitution of India nor Section 482 Cr.P.C. or Section 438 Cr.P.C. Learned senior counsel referred to judgment of the Hon'ble Supreme Court in Kaptan Singh Vs. State of Uttar Pradesh and others, 2021 SCC Online SC 580, wherein the order quashing the FIR passed by the High Court, at the stage of investigation, exercising the powers under Section 482 Cr.P.C., was set aside. Learned senior counsel has next relied upon State of Madhya Pradesh Vs. Yogendra Singh Jadon and another, Law Finder Doc Id# 1676624, wherein the Hon'ble Supreme Court held that the powers under Section 482 Cr.P.C. cannot be exercised, when the allegations are required to be proved in the Court of law. It is thus argued that the petitioners have approached this Court at the very initial stage, when the matter is under investigation by an SIT constituted by the State....
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....hat these documents are forged and fabricated, which, in fact, were used by the accused persons since inception of the conspiracy to allure the complainant to part away his money, therefore, the documents relied upon by the petitioners cannot be termed as the documents of unimpeachable character, in view of well settled principle of law that where there disputed facts, the FIR cannot be quashed, Yogendra Singh Jadon's case (supra). (c) The main argument on behalf of the petitioners is that the complainant has not come forward to seek specific performance of agreement(s) to sell, on the face of it, is liable to be rejected, for the reason that there is encumbrance on the properties, therefore, once the complainant came to know that the properties cannot be transferred in pursuance to agreements to sell, as there was charge/encumbrance over the same, it cannot be termed that the dispute is purely of civil nature. It is case of the complainant that the petitioners have concealed about status of the properties, which were to be transferred in pursuance to the agreements to sell, therefore, on the face of it, the criminal prosecution is maintainable, independent of the fact that some ....