TaxTMI 
TaxTMI 
2022 (5) TMI 1457
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....Writ Petition. Mr. Narayan Dnyanoba Saste, Dy.SP, State CID, Pune is present. JUDGMENT PER PRASANNA B. VARALE, J) 1. The present Petitions are filed under Article 226 of the Constitution of India & Section 482 of the Code of Criminal Procedure, 1973 seeking quashment of the order dated 07th April, 2021 passed by the Judicial Magistrate First Class, Wada in O.M.A. No. 105 of 2021 and first information report bearing Crime No. 0129 of 2021 dated 13th April, 2021 in Wada Police Station for the offences punishable under Sections 420, 465, 467, 468, 469, 470, 471 read with Section 120(B) of the Indian Penal Code, 1860 against the Petitioners. 2. Rule. Rule made returnable forthwith. With the consent of learned Counsel appearing for the respective parties, matters are taken up for hearing and disposal, at the admission stage itself. 3. Writ Petition No. 1805 of 2021 is treated as lead Petition so as to discuss the facts, submissions and merits of both the Petitions. 4. The challenge is raised on following grounds: i. Respondent No. 2 at whose instance the complaint was submitted to the JMFC, Wada is wholly untenable and the Judicial Magistrate without application of mind pass....
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....ision bench in the order dated April 27, 2021 as under: 2] Mr. Amit Desai, learned senior counsel appearing on behalf of the petitioners submitted that complaint lodged by respondent no. 2 (original complainant) leading to registration of aforesaid FIR was absolutely malafide and part of similar attempts made earlier against the petitioners by certain persons seeking to initiate criminal proceedings on the basis of false and frivolous allegations, so as to extract money from the petitioners. Attention of this Court was invited to certain complaints filed in the name of various persons at the behest of Ram Mani Panday and Kislay Panday who claimed to be lawyers running a law firm called 'Magnum Juris'. It was emphasized that petitioners initiated criminal proceedings against such persons seeking to extract money from them leading to registration of F.I.R. in the matter. Petitioner no. 1 company also filed a suit in the year 2019 against the said Ram Mani Panday and his associates and in the said suit, Delhi High Court had temporarily injuncted defendants from disseminating and publishing allegations against the petitioner no. 1 company as it was leading to grave financial loss and....
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....ase made out for registration of FIR. It was further submitted that the complaint in question did not satisfy the requirements of law as laid down by the Hon'ble Supreme Court in the case of Priyanka Srivastava Vs. State of U.P. (2015) 6 SCC 287 and the judgments passed by this Court in as much as there was no affidavit filed in support of the said complaint before the Magistrate. Learned senior counsel emphasized that there were false statements made in the complaint, verifiable from material on record, which the Magistrate failed to appreciate. Learned senior counsel relied upon the Judgment of the Hon'ble Supreme Court in the case of State of Haryana V. Bhajan Lal 1992 Supp (1) SCC 335 particularly category 7 laid down in paragraph 102 thereof. He also relied upon Judgments of the Hon'ble Supreme Court in the case of P. Chidambaram Vs. Directorate of Enforcement (2019) 9 SCC 24 and in Neeharika Infrastructure Pvt. Ltd. V. State of Maharashtra and others [2021 SCC OnLine SC 315] to contend that a clear case for grant of stay of investigation was made out by the petitioners. 6. While considering the prayers for grant of interim stay on the backdrop of recent judgment of the Apex....
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....lso referred to number of litigations filed before the Hon'ble Supreme Court of India wherein allegations were made against the petitioners, which were subsequently withdrawn. A reference is made to alleged manner in which funds were diverted by the petitioners through companies in Mauritius and pumped back illegally. All this information, even according to respondent no. 2, was in the public domain since 2018- 2019 and he was aware about the same. Yet, admittedly he chose to purchase 500 shares of petitioner no. 1 company on 17/03/2021. He had no concern with the said company till he purchased shares on 17/03/2021 and that too allegedly knowing fully well from 2019 onwards about the manner in which petitioners were allegedly committing fraud and duping innocent investors. 11] Even as per the complaint, the respondent no. 2 within less than 10 days of purchasing the shares, found that he was cheated and approached the police station, Wada with his grievance. Respondent no. 2 did not wait for the police to examine the grievance raised by him and immediately rushed to Superintendent of Police on 30/03/2021 and without waiting for the senior officer to take any steps in the matter,....
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....ion and they would be subject to reply of respondent no. 2, nonetheless they prima facie indicate false statement made by respondent no. 2 in the complaint itself. 7. A ground was also raised before this Court that the complaint filed by Respondent No. 2 before the Judicial Magistrate was not supported by an affidavit which is a pre-requiste not only as per the provisions of law but as per the judgments of the Apex Court as well as this Court. The Division bench was pleased to make following observations on that point: 15] Apart from this, by referring to copy of the complaint filed by respondent no. 2 on record, it has been strenuously argued on behalf of the petitioner that complaint is not supported by an affidavit. We have perused copy of complaint on record and prima facie find that the statement appears to be correct. 16] In the case of Priyanka Shrivastava [cited supra] followed by judgments of this Court in the case of Sayed Anwar Ahmed V. State of Maharashtra [2017 SCC OnLine Bom 3972] and Devidas V. State of Maharashtra [2017 SCC OnLine Bom 8416] it has been laid down that complaints filed before the Magistrates need to be supported by affidavit so that the complai....
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....d connected writ petition by Mr. Amit Desai, learned Senior Counsel. Additionally, it is submitted by Dr. Chandrachud appearing for the Petitioner herein that insofar as the said Petitioner is concerned, there is only one statement made against him in the entire complaint filed by the Respondent No. 2, which is at paragraph 84 of the complaint. 4. By inviting our attention to the said paragraph, the learned counsel submitted that even if the statement made therein is accepted as it is, only a noncognizable offence under Section 86 read with 439 of the Companies Act, 2013, can be alleged pertaining to no charge being filed with the Ministry of Corporate Affairs regarding loan advances. On this basis, it is submitted that the order passed by the Magistrate dated 7 th April, 2021 under Section 156(3) of Cr.P.C. shows total non application of mind, insofar as it directs registration of F.I.R. against the Petitioner. 5. In the order passed today in Writ Petition No. 1805 of 2021, we have already stated detailed reasons as to why we have prima facie found that the complaint filed by Respondent No. 2 appears to be malafide and deficient. The same reasons apply in the present case al....
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....one room on leave and license basis for 11 months at Biloshi, Dist. Palgahr. Mr. Rohatgi further then led critical attack on the conduct of Respondent No. 2 to submit how the Respondent No. 2 made untrue statements in the complaint. By inviting our attention to the copy of the complaint placed on record and particularly, at page nos. 258 and 259, Mr. Rohatgi submitted that on one hand Respondent No. 2 submitted that he is doing regular share trading and this statement is falsified by another statement of Respondent No. 2 in the complaint itself and it is stated that Respondent No. 2 by opening a Demat account on 16.03.2021 at Dadar, for the first time purchased two lots of share i.e., 800 shares in each lot in the shares of Petitioner Company. Mr. Rohatgi then submitted that a statement is made in the complaint at page 260 of the Petition that the Petitioner lost substantial amount whereas the record is contrary that there was no loss caused to the Petitioner Company. Mr. Rohatgi also submitted that making this initial statement the Respondent No. 2 makes references to the Petition filed before the Apex Court and then the allegations are practically copied from the contents of the ....
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.... Petition filed at Delhi High Court against the Petitioner, RBI filed its reply and it was submitted in the reply that the Petition may be dismissed. It is further submitted that even though in the present Petition the reply is filed by RBI and it is stated that the authority had conducted the scrutiny and found that the loans obtained by the Petitioner Company were repaid. 16. Mr. Rohatgi vehemently submitted that the lodgment of the report against the Petitioner Company and continuity of any proceedings arising out of said complaint would be nothing but an abuse of process law. Mr. Rohatgi vehemently submitted that the case of Petitioner squarely falls in the categories framed by the Apex Court in oftenly quoted judgment of State of Haryana and Others Vs. Bhajan Lal and Others [1992 Supp (1) SCC 335] and particularly in category 7. 17. In so far as the submission of selected jurisdiction by Respondent No. 2 is concerned, Mr. Rohatgi placed heavy reliance on the latest judgment of the Apex Court in the matter of Vijay Kumar Ghai and Others Vs. State of West Bengal and Others [2022 SCC OnLine SC 344]. 18. In so far as other submission that filing of the affidavit with complaint ....
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....achud further submitted that the Petitioner is a real estate developer and contrary to the allegations against the Petitioner there is a specific material to show that the Petitioner had obtained the loan by following due procedure. If the Petitioner had obtained the loan by illegal means and failed to repay it, he could have been certainly declared as defaulter and the financial institutions like Bank certainly would have initiated proceedings against the Petitioner by taking recourse to SARFEASI Act, but no such action is taken. Mr. Chandrachud then submitted that the Respondent No. 2 is not even purchaser of any property from the Petitioner and as such, there was absolutely no locus for Respondent No. 2 to lodge any report / complaint against the Petitioner. In support of his submissions, Mr. Chandrachud relied on following judgments: Babasaheb Narayan Naik and Others Vs. State of Maharashtra and Others [2019 SCC OnLine Bom 3003], & Sudhir Rangrao Patil Vs. State of Maharashtra [2017 SCC OnLine Bom 8915]. 21. Mrs. A.S. Pai, learned Public Prosecutor opposed the Petitions and submitted that during pendency of the Petitions the investigation is transferred to State CID, Pune, and....
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....No. 2 had placed on record all the relevant material and as observed by the various Courts the FIR is not an encyclopedia, the investigating agency is required to investigate into the complaint and collect the necessary material. Learned Counsel appearing for Respondent No. 2 submitted that even though Petitioner raises certain questions in so far as locus of Respondent No. 2 and even assuming that the malafides are against the Respondent No. 2, the Petitioner cannot absolve itself from the criminal liability. It is further submitted that any person set the criminal law in motion and the allegations of malafide against the Respondent No. 2 cannot be a reason for quashing the report. Learned Counsel for Respondent No. 2 vehemently submitted that the order of this Court granting stay to the investigation be vacated and investigation agency be permitted to continue with the investigation. Learned Counsel appearing for Respondent No. 2 in support of its submissions relied on following judgments: A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another [AIR 1984 SC 716], Sheno Nandan Paswan Vs. State of Bihar and Others [AIR1987 SC 877], Trisuns Chemical Industry Vs. Rajesh Agarwal and Others....
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.... that as per offences as alleged in the complaint a huge amount is siphoned of. 27. It seems that Magistrate was influenced by the lengthy complaint placed before him and arrived at a conclusion that there was a diversion of huge monetary funds to the tune of Rs. 300 crores and the money was transferred to other country i.e., Mauritius. Admittedly, it was only allegations in the complaint and except bare words of the complainant there was no other material before the Magistrate to form such an opinion as such, there is merit in the submissions of learned Senior Counsel Mr. Rohatgi that the Magistrate without applying his mind passed mechanical order under Section 156(3) of Code of Criminal Procedure. 28. Learned Counsel appearing for Petitioners were justified in making submissions that the Respondent No. 2 who is a resident of Dadar with some designed motive shifted to Biloshi, Tq. Wada, Dist. Palghar, obtained a room on leave and license basis and lodged a complaint before the JMFC, Wada. The complaint also reveals that the Respondent No. 2 had purchased 800 shares in two lots by opening Demat account from Dadar and this was solitary transaction of the Petitioner. As such, the ....
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....he present is a case where the accused persons are serving in high positions in the bank. We are absolutely conscious that the position does not matter, for nobody is above law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act, invokes the jurisdiction under Section 156 (3) Cr.P.C. and also there is a separate procedure under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to. 28. Issuing a direction stating "as per the application" to lodge an FIR creates a very unhealthy situation in the society and also reflects the erroneous approach of the learned Magistrate. It also encourages the unscrupulous and unprincipled litigants, like the respondent no.3, namely, Prakash Kumar Bajaj, to take adventurous steps with courts to bring the financial institutions on their knees. As the factual exposition would reveal, he had prosecuted the earlier authorities and after the matter is dealt wit....
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.... without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154 (1) and 154 (3) while filing a petition under Section 156 (3) . Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156 (3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156 (3) . That apart, we have already stated that the veracity of t....