TaxTMI 
TaxTMI 
2023 (6) TMI 855
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.... the revisions were heard together and this Court proposes to disposed of both the revisions by the following composite judgment. 2. Palogix Infrastructure Private Limited ("Palogix") was admitted into Corporate Insolvency Resolution Process (CIRP) under the provisions of Insolvency and Bankruptcy Code, 2016 pursuant to an order of the National Company Law Tribunal (NCLT) dated 16.05.2017. Sanjay Kumar Mishra was chosen as the successful resolution applicant and an order dated 12.02.2018 was passed by the NCLT at Kolkata approving the resolution plan submitted by him. Mr. Mishra was appointed as the managing director of GCL Logistics Terminal LLP. This limited liability partnership resulted from a Memorandum of Understanding (MOU) executed between Palogix and Sanjay Kumar Mishra and Godavari Commodities Limited. Godavari Commodities Limited holds 100 equity shares in Palogix. The LLP was constituted between the parties with ownership ratio of 1:99 where 1% was of Sanjay Kumar Mishra without any investment and GCL LLP became the majority shareholder in Palogix to the extent of 73.25%. Mr. Ranjan Kumar was appointed as the director of GCL LLP on 20.08.2018. 3. Sanjay Kumar Mishra, ....
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....submitted by Mr. Mukherjee that the registered office of Palogix Infrastructure Pvt. Ltd. is at 86 B/2 Gajraj Complex within P.S Topsia. But the complaint was filed at Hare Street P.S by respondent No. 2 who was appointed as a nominee director of Palogix by Godavari Logistic Terminal LLP on the strength of its being the majority share holder of Palogix. Jurisdiction of Hare Street P.S was assumed on the plea that Godavari has its registered office at Netaji Subhas Road under the Hare Street P.S. However, no part of cause of action arose within the jurisdiction of Hare Street P.S. The dispute between the parties relates to an allegation of mismanagement and oppression by the respondent No. 2 in the management and day to day business and affairs of the Company. Therefore, very institution of FIR by Hare Street P.S is without jurisdiction, so, is the criminal proceeding against the petitioners. 7. It is further submitted by Mr. Mukherjee that the petitioners are not even the FIR named accused persons. They are minority share holders of the Company. It is also submitted by Mr. Mukherjee that the respondent No. 2 had resigned from the directorship of the Company on 18th February, 2023.....
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....ubmits that Godavari Commodities Ltd. holds 75% share of Palogix while others, including the petitioners have 25% share. As majority shareholder, Godavari is entitled to appoint proportionate number of directors of Palogix. The respondent No. 2 was nominated as a director of Palogix by GCL. Upon service of notice, the respondent No. 2 convened OGM of Palogix in the office premises of GCL. The petitioners did not attend the said meeting. However, in the said meeting one Kamal Singh Bhutoria was appointed as the director of the respondent no. 1/Company. After the meeting, when respond No. 2 tried to upload the resolution of the meeting dated 20th February, 2023, he came to know that the accused persons creating forged documents removed respondent No. 2 from his post as director of respondent no. 1/Company. 11. It is also submitted by Mr. Banerjee that the learned Senior Counsel on behalf of the petitioners tries to portray the instant case as a dispute under the Companies Act and the offence is triable by Special Courts under Section 436 of the Companies Act, but the dispute is essentially and purely criminal in nature where the petitioners indulged in forgery to falsely remove the ....
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....trate as contemplated under Section 155(2) of the Code; (e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; (f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; (g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 14. The position of the Supreme Court has been re-affirmed by the Supreme Court in the judgment of Dr. Monica Kumar v. The State of Uttar Pradesh (2008) 8 SCC 781. Applying the guidelines to the facts of the matter at hand, it is the opinion of this Court that the criminal proceeding ....
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.... to examine if the facts of the case come under any of the exceptions given in State of Haryana v. Bhajan Lal (1992 Supp. (1) SCC 335). Firstly, the allegation made in the FIR makes out a prima facie case of forgery under S. 468 of the IPC, as Mr. Deepak Joshi alleges that not only was his signature forged in the resignation letter, but also his password had been changed. He had been impersonated by the accused as well as his e-mail id had been illegally and unauthorizedly accessed by the said accused. Therefore, taken at face value, the allegations made in the FIR do qualify as an offence under S. 468 and S. 471 of the IPC. 17. Secondly, the crimes under S. 468 and S. 471, as alleged by Mr. Deeepak Joshi, are cognizable offences and vide an order dated 6th April, 2023, the prayer of the I.O for issuance of the warrant of arrest against the accused Mr. Sanjay Mishra was allowed by the learned Chief Metropolitan Magistrate, Calcutta. When criminal investigation was set in motion, it is not desirable to quash a proceeding on the allegation that in DIR 12, the defacto complainant had put his signature and it was not forged. When the investigating authority has the scientific technica....