TaxTMI 
TaxTMI 
2012 (1) TMI 421
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....e present four petitioners, making specific allegations that they had entered into a criminal conspiracy with the other five accused persons and committed the offence of cheating by using forged documents and submitting the same with the Registrar of Companies on different formats/forms and using the said forged documents as genuine in order to claim themselves to be the Directors of the Company. It is also alleged that they also committed falsification of accounts - 2. In order to appreciate the rival contentions of the parties, it will be pertinent to give the contents of the complaint lodged by the respondent no. 4, on the basis of which the FIR has been registered. The same reads as under :- (1) That the complainant is a company incorporated under the Companies Act, 1956 having its registered office at 55 Vidyut Nikunj Apartment 112, Patparganj, New Delhi 110092 and Ms. Mausumi Bhattacharjee has been its Director since November 1997 and became its Managing Director w.e.f. 04.5.2001 holding the entire share capital of the company either directly or through their friends and relatives (hereinafter collectively referred to as the 'Complainant'). (2) Th....
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....value of land owned by the company went upto 100 Crores which drew the attention of certain land grabbers/Mafias who joined hands and started some illegal interventions into the company's activities. On and around September 2002 the complainant learnt that certain forged documents had been filed with the office of the Registrar of Companies such as:- * Form 32, dated 16.5.2002 along with the resignation letter showing the resignation of the complainant as the Managing Director, of the company on which there were forged the signature of Sh. Sudhir Gupta who had already resigned from the office of the Director w.e.f. 04.10.1999. * Form No. 32 dated 16.5.2002 showing the appointment of accused No. 7 to 9 as the directors of the company. * Form 18 dated 16.5.2002 showing the shifting of the registered office of the company to the nonexistent place of B-24, Hauz Khas, New Delhi bearing the signature of Shri. Sudhir Gupta who had already resigned from his office w.e.f. 04.10.1999. The above mentioned accused did not know the correct name of the company and spelt it as Anghaila Housing Pvt. Ltd.' along with a similar rubber stamp as well. The report b....
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....tio, there is no further documents evidencing the aforesaid transfer. * Form 32 showing the appointment of accused no. 6 (Tarun Bharadwaj) is claimed to have been made w.e.f. 26.09.2002 on the basis of Form 32 signed by Sh. Sudhir Gupta (who had already ceased to be Director w.e.f. 04.10.1999). The date of passing of the resolution as per this Form 23 is 19.7.2003 whereas the Form itself is dated 09.7.2003. the authority to file it is given to Mr. Sudhir Gupta although he had already resigned w.e.f. 04.10.1999. Similarly Form 23 filed in respect of the appointment of accused No. 6 (Tarun Bharadwaj) as the Managing Director w.e.f. 19.7.2003 has also the colors of forgery as the same has been signed by Mr. Sudhir Gupta although he had already resigned on 04.10.1999. During the proceedings before the Company Law Board the accused No. 3, i.e. Sh. Sanjay Daksha, accused no. 4 i.e. Sh. Sofi-ur-Rehman and accused No. 5 i.e. Sh. Binod Rajhans also filed the following forged documents. * Form 2 dated 27.3.1995 in respect of the purported allotment of 1454 shares on 30.6.93 and Form no. 2 dated 23.3.1995 in respect of the purported allotment of 31....
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....ay Daksha along with Shalini Projects Pvt. Ltd., whose Managing Director is Mr. Santosh Kumar Bagla. It appears that the accused no. 1 is the kingpin and all others are puppets playing into the hands of and as per the instructions from Santosh Kumar Bagla. You are requested to register an FIR against accused no. 1 to 9 for fraud, forgery, cheating and land grabbing, criminal conspiracy and using the forged documents in judicial proceedings in terms of Section 420/468/471 read with 120B IPC and other applicable provisions in order to safeguard the interests, property of the Company from Mafia, land grabbers/criminal conspirators. Sd/- 3. On the basis of the aforesaid complaint, an FIR No. 21/2005 for offences under Sections 120B/420/467/468/471/ 477A IPC was registered against the petitioners. The petitioners started getting notices for the purpose of joining the investigation after registration of the FIR. The first petition was filed by the three petitioners named above which came to be listed before the Court on 31.05.2005, on which date, the notices were issued to the respondents to show cause as to why rule nisi be not issued. In the meantime, no coercive action ....
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....and creditworthiness of the witnesses or the evidence which the parties may like to produce during the course of trial. It may also be pertinent to mention here that despite the expiry of almost two decades from the date of decision of Bhajanlal's case (Supra), the same has held the ground till date without any substantial change. I am, accordingly, prompted to reproduce the paragraph no. 108 of the said judgment, which reads as under: 108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have been extracted and reproduces above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the processes of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad ....
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....he extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. 8. It may also pertinent here to mention that Supreme Court in State of Bihar Vs. Murad Ali AIR 1989 SC 1 has held as follows: it is trite that jurisdiction under Section 482 Cr.P.C., which saves the inherent power of the High Court, to make such orders as may be necessary to prevent abuse of process of any Court or otherwise to secure the ends of justice, has to be excised sparingly and with circumspection. In exercising that jurisdiction the High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not that is the function of the trial Magistrate when the evidence comes before him. Though it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence the High Court is guided by the allegations, whether those allegations, set out in the co....
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.... document, using forged documents as genuine and falsification of the accounts be made out or not. The second and fourth ground, which pertains to the allegations of malafide and the dispute being of a civil nature, are overlapping the first one, so all of them are being dealt with together. 14. I have purposely reproduced the entire contents of the FIR in paragraph 3. Suffice it would be to mention here that a plain reading of the said FIR makes a definite allegation against the petitioners that they are alleged to have forged the resignation papers of Sudhir Gupta, board meeting minutes, medical certificates and even the notices of the board meeting including the annual returns and on the basis of the same they had sought to claim themselves to be the shareholders and the Directors of the company in question. If this is prima facie accepted to be correct, then obviously a case for cheating under Section 420 IPC, for forging documents and using forged documents as genuine punishable under Section 468/471 IPC and falsification of accounts punishable under Section 477A IPC is made out. I have purposely not dealt with the entire complaint in extenso because a reading of the compla....
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....Indian Oil Corporation and Inder Mohan Goswami's cases (supra) that of late, there has been a tendency on the part of the litigants to convert a dispute which is essentially civil in nature into a criminal dispute, to make the other party to submit to the dictates of the complainant. In all such cases, the Courts have in exercise of its powers under Section 482 Cr.P.C. or under Article 226 & 227 of the Constitution, granted the relief to the accused persons either by setting aside the order of summoning or quashing the FIR itself. In Indian Oil Corporation's case (supra) the aircrafts had been mortgaged while as in Inder Goswami's case (supra) loan was taken and post dated cheques were issued. 20. But the moot question which arises for consideration is that as to whether this proposition of law fits into the facts of the present case or not. The learned counsel for the petitioners has relied upon few other authorities on the question of sale and purchase of immovable properties where either the summoning order has been quashed or the complaint itself, which has resulted in summoning of an accused for cheating, has been quashed, either by the High Court or by the Supr....
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....ention at the time when the acts are purported to have been done by the petitioners, in as much as, they wanted to cause wrongful gain to themselves, if not the wrongful loss to the complainant. Merely because certain previous litigation between the parties is pending in the Company Law Board or in civil courts, this does not preclude a complainant from registering a criminal offence against the offender, in case it is made out. This has also been observed by the Apex Court in Indian Oil Corporation's case (Supra) wherein it was held that merely because civil disputes exist between the parties, this does not mean that a criminal offence cannot be registered. Therefore, I feel that although the judgment with regard to the proposition of law that the FIR may be quashed, in case there is purely a civil dispute, cannot be found at fault with, but it can by no stretch of imagination be said that in the instant case the dispute between the petitioners and the complainant is essentially a civil dispute which may warrant quashing of the FIR. Similarly, the learned counsel for the petitioners has failed to see the distinction between a case where the matter has reached to the High Court....
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....ion she could ever become the Director of the Company when she had allegedly purported to have become one. It is alleged that the complainant has indulged in forgery and deceit, by filing the balance sheet and annual report for the year ending March 31, 1993 and March 31, 1994 with the Registrar of Companies, purported to have been signed by M/s Ved & Co., Chartered Accountants, while as the said firm has never been appointed as an auditor of the company and further the address of their registered office has not been reflected on the letterhead. The allegations are that the complainant must have managed to get these forms from the office of Registrar of Companies office removed, which were beneficial to the present petitioners. It may be pertinent to mention here that the Apex Court in State of Bihar Vs. P.P. Sharma AIR 1991 SC 1106 has observed that allegations of mala fides are very easy to make but very difficult to prima facie establish. A very heavy onus has to be discharged by the petitioner in this regard. But in the instant case, the instances which the petitioners are relying upon by way of allegations of mala fides, to prove the falsification against them, essentially con....
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....of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under subsection (2) thereof. (2) A person acquitted or convicted of any offence afterwards tried with the consent of ore State Government for any distinct offence for which a separate charges have been made against him at the former trial under sub-section (1) of section 220. (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened or were not known to the court to have happened, at the time when he was convicted. (4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction be subsequently charged with, and tried for, any other offence constituted b....
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....in), New Delhi (ii) Sh. Kailash Nath Chaturvedi r/o 2nd Floor, 115, Defence Enclave, Vikas Marg, New Delhi. (iii) Sh. Sanjay Daksha r/o Y-14 A, 2nd Floor, Green Park (Main), New Delhi (iv) Sh. Sofi-ur-Rehman r/o RZ 20, E/6, Raj Nagar, Palm Colony, New Delhi (v) Sh. Vinod Rajhans r/o Y-14 A, 2nd Floor, Green Park (Main), New Delhi (vi) Sh. Tarun Bhardwaj r/o H-452, 3rd Floor, New Rajinder Nagar, New Delhi. (vii) Sh. Naresh Kumar r/o 237, Shastri Nagar, Meerut. (viii) Sh. Ram Saran Singh r/o Shakti Nagar colony ,Bijnor. (ix) Smt. Kusum Lata r/o 75, Rajpur Road, Dehradun (i) Sh. Sanjay Daksha s/o Sh. D.N. Daksha (ii) Sh. Vimal Joshi s/o Sh. R.L. Joshi (iii) Sh. Santosh Kumar Baghla s/o Sh. Laxmi Narain Bagla (iv) Sh. Shyam Chaturvedi s/o Sh. Jintender Chaturvedi (v) Sh. Ashok Mangai All the above persons are resident of Shalini Projects Office, 161, Phase II, Basant Vihar Police Station, Basant Vihar, Dehradun. Offence (i) the following documents were allegedly forged and filed with ROC-Delhi: Form 32 dated 16.05.2002 Form 18 dated 16.05.2002 ....
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....n of different offences, as some of the offences mentioned in the FIR lodged at Dehradun had not been allegedly committed at the time when the first complaint was made in Economic Offence Wing, at New Delhi. The main allegation in the complaint lodged at Economic Offence Wing, New Delhi (FIR 21 of 2005) pertains to the petitioners having forged and filed several documents before Registrar of Companies and the main offence pertained to criminal conspiracy, cheating, forgery, falsification of accounts etc. Whereas the FIR lodged at Dehradun (FIR 191 of 2004) the main allegation was conspiracy with regard to criminal intimidation, forcible grabbing of land, cheating etc. The offence of criminal intimidation and intentional insult with intent to provoke breach of peace were not even in existence at the time when the complaint was lodged at Economic Offence Wing, New Delhi so the question of 'same offence' in existence in respect of two FIRs also does not meet the prima facie requirement of double jeopardy and thus Section 300 Cr.P.C. or Article 20 (2) of the Constitution of India are not attracted at all. 30. The Apex Court with regard to this issue makes the position of the....
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....ble in similar cases by virtue of Article 367 of the Constitution. The offences for which the appellant was tried and convicted in the USA and for which he is now being tried in India, are distinct and separate and do not, therefore, attract either the provisions of Section 300(1) of the Code or Article 20(2) of the Constitution. 32. Thus, it is crystal clear from the above that the ground of double jeopardy sought to be relied upon by the petitioners is totally misconceived. 33. The next submission made by the learned counsel for the petitioners is that the I.O. is making frivolous allegations on the petitioners that the applicant is holding documents on the basis of which notice was issued as per interim order passed by the Hon'ble Court. The sum and substance of this allegation is that the IO wanted the petitioners to produce 14 original documents for the purpose of investigation into the matter and it is the case of the petitioners that out of those 14 documents, 10 documents have already been handed over to the IO while as the remaining four documents are self-attested copies, therefore, the FIR deserves to be quashed. 34. This cannot be a ground for quashing of t....