TaxTMI 
TaxTMI 
2025 (2) TMI 1984
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....ness of dairy products. Company was set up in year 2013 and production commenced in year 2014. Factory is situated at Village Pipariya, District Sehore (Bhopal). During period 2020 to May, 2023, ex-employee of company namely Sunil Tripathi, who was looking after the affairs of the company, in connivance of Wamik Siddiqui, Hitesh Punjabi, Baljeet Sharma, Jitendra Rathore, Sanjay Verma, Abhishek Tripathi and others defrauded the company. It is submitted that dairy products of company were exported to Hitesh Punjabi and Baljeet Singh under Scheme of 1+1 and 2+1, thereby causing huge loss of about 15 crores to the company. Stocks of company were also misappropriated. Said accused persons established various firms namely Siyajit Export, Perfect Food Solution, Moms and Bucket and Sugam Foods and transacted with Baljeet Sharma and Hitesh Punjabi. Said accused persons are based in Kuwait and Dubai. Not only stocks of company were embezzled but records was also manipulated. Petitioner company lodged FIR against accused persons at Police Station Habibganj, District Bhopal, which is registered under Sections 420, 406, 120-B, 409, 467, 468 and 471 of IPC. After lodging of FIR, accused perso....
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....de by Exports Inspection Agency (EIA). EOW for reasons best known to them did not upload the copy of FIR nor provided a copy to petitioners. FIR is lodged on 22.07.2024 under Indian Penal Code. It ought to have been lodged under Bhartiya Nyay Sanhita, 2023, as provisions of IPC are no longer attracted in the case. FIR is not saved under repeal and saving clause of B.N.S.S., 2023. Respondents had violated directions of Apex Court in Case of Youth Bar Association of India vs Union of India, reported in (2016) 9 SCC 473, as FIR was not published within 24 hours of its registration on police website. Proceedings of Economic Offences Wing is tainted with malafides and FIR was lodged with ulterior motive of wrecking vengeance due to private and personal grudge of one Sunil Tripathi. 5. Counsel appearing for petitioners also submitted that there is specific evidence collected against Sunil Tripathi in Crime No. 492/2023 that Sunil Tripathi obtained health certificate from E.I.A., Indore and had prepared forged lab reports through mobile/electronic gazettes. Therefore, offence under Section 66 of IT Act was also added. Sunil Tripathi was technologist of the company and authorized by E.I....
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....minal intention is alleged against petitioners. Petitioners were made accused being Directors of company. Reliance is placed on judgment passed by Apex Court in case of Shivkumar Jatia vs State of NCT of Delhi, reported in (2019) 17 SCC 193. In said case, it was held that Director/person in charge of affairs of company can be prosecuted when company is an accused. Company acts through its officers, Directors etc. and individuals. There is no vicarious liability unless statute specifically provides for it. Company has not been arraigned as party and Directors of company have been arrayed as accused without any specific allegations regarding their role. Principally allegations are against company. Therefore, no proceedings can be initiated against Directors alone. Reliance is place on judgment passed by Apex Court in case of Sharad Kumar Sanghi vs Sangita Rane, reported in (2015) 12 SCC 781. Reliance is also placed upon judgment of Apex Court in case of T.T. Antony vs State of Kerala, reported in (2001) 6 SCC 181, wherein it has been held that second FIR in respect of an offence or different offences committed in the course of prosecution is impermissible and violates Article 21 of t....
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....d 21.04.2024. It was alleged that Directors of company have prepared forged lab reports regarding quality of dairy products. Verification was done from 5 concerned laboratories i.e. (i) CEG Test House and Research Center Pvt. Ltd., Jaipur, Rajasthan, (ii) IRCLASS Systems and Solutions Pvt. Ltd. Jaipur, Rajasthan, (iii) FARE LABS, Gurugram, Haryana (iv) National Commodities Management Services Limited, Gurgaon, Haryana and (v) AES Laboratories (P) Ltd., Noida (UP). Lab reports dated 28.09.2021 and 08.11.2021 were not found to be issued by AES Laboratories (P) Ltd. Similarly, 8 reports of IRCLASS Systems and Solutions Pvt. Ltd. were not issued by it. Further, on verification it was found that some reports numbering about 9 were not issued by FARE LABS Pvt. Ltd. Such reports were forged. Hitesh Punjabi had lodged a complaint that products supplied were substandard to Collector, Bhopal on 09.08.2023. False bills were used to show increased turn over of the company. Further company has supplied adulterated dairy products to various cooperative societies after buying pure milk from them. Allegation is also made that forged certificate of veterinary doctor was used for sending food produc....
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....herein he stated that "to make", in itself involves conscious act on the part of the maker. Therefore, an offence of forgery cannot lie against a person who has not created it or signed it. * * * * 25. Keeping in view the strict interpretation of penal statute i.e., referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery." 13. Abuse of process of law cannot be ruled out in this case, as petitioners have lodged an FIR at Crime No. 492/2023 against Sunil Tripathi, Wamik Siddiqui, Hitesh Punjabi, Baljeet Sharma, Jitendra Rathore and others. In said case, petitioners are witnesses. In said FIR also, allegations were made regarding forged lab reports, which were used for exporting dairy produc....
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.... filing of successive FIRs whether before or after filing the final report under Section 173(2) Cr. P.C. It would clearly be beyond the purview of Sections 154 and 156 Cr. P.C. nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is underway or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 Cr. P.C. or under Article 226/227 of the Constitution." 14. Considering totality of facts that facts mentioned in FIR No. 27/2024, which spreads from 01.01.2019 to 23.04.2024 are also part of transactions in FIR No. 492/2023, which spanned from 22.06.2020 to 22.05.2023, no specific and active role or malafide intention ascribed to the Directors of the company, company has not been impleaded as accused in the case. It has specifically been mentioned by petitioners that accused of....