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TMI Blog2022 (5) TMI 1457X X X X Extracts X X X X X X X X Extracts X X X X ..... saction of the Petitioner. As such, the claim of the Respondent no. 2 that he was regularly trading in shares is falsified. It is also difficult to believe that the Respondent No. 2 complainant was in a position to study the balance sheet of the Petitioner for a past several years in a very limited span of purchasing the shares and lodging the report to the Magistrate so as to arrive at a conclusion that the Petitioner Company has siphoned the amount and played mischief. There is also merit in the submissions of learned Counsel appearing for Petitioners that though it was alleged in the complaint that one Mr. Harish Fabiani had obtained loan and misutilized the loan amount, the document placed on record and relied on by Mr. Rohatgi, learned Senior Counsel demonstrates that the said loan was repaid. The lodgment of the complaint against the Petitioners and continuity of the proceedings, is an abuse of process of law. Thus, these are the fit cases for exercising inherent powers of this Court under Section 482 of Code of Criminal Procedure, 1973 to secure the ends of justice - Petition allowed. - Writ Petition No. 1805 of 2021 Along With Writ Petition No. 6812 of 2021 - - - Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount in the shares of the company and further stated that on collection of certain information it came to his knowledge that the Petitioner Company played the mischief and with an oblique object caused the loss to its shareholders. iv. Respondent No. 2 who is otherwise resident of Dadar, Mumbai, with a designed motive shifted to Biloshi, Wada and by arranging the house on rental basis for a limited period approached the Magistrate by submitting his complaint. Thus, Respondent No. 2 for fulfilling his oblique intention selected the jurisdiction of said Court. v. Mr. Rohatgi, learned Senior Counsel vehemently submitted before this Court that a similar attempt was made in other part of the county and a Petition was filed for quashing before Delhi High Court. The Delhi High Court in its detailed order observed that the complaint was filed with oblique motive. vi. Mr. Rohatgi, learned Senior Counsel further submitted before the Court that the material in support of the complaint submitted before the Wada Court is nothing but an replica of a complaint in question before the Delhi High Court. vii. Mr. Rohatgi submitted that without admitting, even if the complaint is conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt i.e. WP (Civil) 9887/2019 (Citizens Whistle Blower Forum V. Union of India and Ors) wherein averments were made raising frivolous allegations against the Petitioners. The said petition is pending and according to learned senior counsel for the petitioners, perusal of affidavits filed by respondents therein, including Ministry of Corporate Affairs, Reserve Bank of India (RBI) and Securities and Exchange Board of India (SEBI) would show that there was no substance in the allegations levelled against the petitioner. It was then submitted that in the present case, respondent no. 2 appeared to have been set up with the said design of making wild allegations against the petitioners so as to somehow initiate criminal proceedings against the petitioners. It was submitted that Magistrate in the present case had no territorial jurisdiction to entertain the complaint for the reason that respondent no. 2 admittedly executed a leave and licence agreement pertaining to room in Palghar on 26/03/2021 and filed a complaint before the police authorities on the very same day levelling aforesaid allegations against the petitioners. This was done deliberately to create false basis for invoking juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re conscious of the fact that since FIR has been recently registered on 13/04/2021, investigation is at nascent stage and that there ought to be compelling reasons to favourably consider the prayer for grant of ad-interim stay of investigation. 9] We are proceeding on the basis of facts discernible from the complaint itself filed by respondent no. 2 and documents on record with which respondent no. 2 cannot have any quarrel. It is evident from the complaint itself that respondent no. 2 for the first time purchased shares of petitioner no. 1 company on 17/03/2021. In the De-mat account from which respondent no. 2 purchased the said 500 shares, he is shown to be resident of Dadar, Mumbai. On 26/03/2021, respondent no. 2 executed a leave and licence agreement pertaining to a room at Palghar. It is on that very day that respondent no. 2 approached the police Station Wada to raise his alleged grievance against the Petitioners. Immediately thereafter, on 30/03/2021, respondent no. 2 went to Superintendent of Poilce, Palghar claiming that he disclosed facts showing cognizable offences committed by the petitioners and other accused persons. Thereafter, immediately on 03/04/2021, resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g an order of registration of FIR under Section 156(3) of Cr.P.C. 12] These admitted facts prima facie raise a suspicion about bonafide of respondent no. 2 and prima facie it appears that respondent no. 2 has been set up to initiate criminal proceedings in the matter. This is accentuated by the admitted position that respondent no. 2 for the first time executed a leave and licence agreement about a room at Palghar on 26/03/2021 and on that very day approached the police station with his grievances, prima facie indicating that this modus operandi was undertaken to foist jurisdiction on the Magistrate at Wada. No part of the transaction is shown to have been undertaken within the jurisdiction of the Magistrate at Wada or District Palghar. (Emphasis supplied) 14] It is also significant that perusal of complaint itself would show that details stated therein running into as many as 92 paragraphs, which appear to be akin to allegations sought to be made against the petitioners in the PIL. At this stage, prima facie it appears suspicious that respondent no. 2 became aware of all such alleged facts regarding functioning of the petitioners in the short period between 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , prima facie, we find some substance in the contentions raised in this context on behalf of the petitioners. 8. The Division bench in clear words observed that it was the prima facie opinion of this Court that the complaint filed by Respondent No. 2 appears to be malafide and deficient as such, this Court was inclined to grant ad-interim stay. This observations find place in paragraph 17 of the order and the same reads thus: 17] As regards the contentions raised on behalf of respondent no. 2 that since FIR is already registered, investigation ought to continue, we are of the opinion that in view of above, since we prima facie are of the opinion that the complaint filed by respondent no. 2 appears to be malafide and deficient, insofar as the complaint is not supported by a proper affidavit, ad-interim stay of the investigation deserves to be granted. 9. The Division bench then granted ad-interim relief in terms of prayer clause b and further observed that since the Division bench had stayed the investigation the question of taking any further action on the basis of said FIR would not arise. 10. It was brought to the notice of this Court during the pendency of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dr. F.R. Shaikh, learned APP waives service of notice on behalf of Respondent No.1- State and Mr. Dubey, learned counsel waives service of notice on behalf of Respondent No. 2. 8. In the meanwhile, there shall be adinterim relief in terms of prayer clause (b), which reads as follows : (b) That this Hon ble Court be pleased to issue a Writ of Mandamus or any other Writ, order or direction, directing the Respondent No.1 not to initiate any action against the Petitioner in furtherance of FIR bearing No.129 of 2021 dated 13.04.2021 (Exhibit A hereto). 9. The Respondents may file their affidavits-in-reply before the returnable date. 10. Tag with Writ Petition No. 1805 of 2021. 12. Mr. Rohatgi vehemently submitted before this Court that the complaint filed against the Petitioner Company before JMFC, Wada was an act of oblique motive. Mr. Rohatgi further submitted that on similar set of allegations a group consisting of two lawyers and 8-9 Petitioners filed Petition before Apex Court and before the Petition could get registered, the same was withdrawn. Filing of the Petition in the Apex Court was given a wide publicity and because of such negative publicit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tgi also submitted that those disgruntled elements who have acted with a designed motive were brought to the books and one of such disgruntled element namely, Mr. Pandey who had approached for grant of bail, the bail was rejected. Mr. Rohatgi further submitted that in a Petition filed before Delhi High Court as Public Interest Litigation identical allegations were made against the Petitioner Company, one another Company namely, DLF Group, Chordia Group of Company. Mr. Rohatgi further submitted that in the said Petition the allegations were made submitting a table with a statement that loan given to Chordia Group of Company i.e., IBHFL and in the tabular form following statement was made : 2. Built to Live Realty LLP -do- 2017- 18 450 This loan was repaid with money Mahalunge Land Developers borrowed from IBHFL. A copy of Balance Sheet of Built To Live Realty FY 2017- 18 is annexed herewith as Annexure P34. 15. Mr. Rohatgi by inviting our attention to the statement immediately after the table submitted that it was admitted in the statement that the loan taken from the Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pradesh and Others [(2015) 6 SCC 287], Babu Venkatesh and Others Vs. State of Karnataka and Another [2022 SCC OnLine SC 200]. 19. Mr. Desai, learned Senior Counsel while supporting the submissions of Mr. Rohatgi further added that the Petitioner Company is not only required to face wholly untrue allegations submitted in the complaint and to undergo the rigors of law, but also such false complaint adversely affects the reputation of Petitioner Company and impact of such false complaint results in falling of share value in the market and resultantly, the Petitioner Company has to suffer a huge financial loss and this loss is certainly an irreparable. Mr. Desai also submitted that the Board of Directors of the Petitioner Company consists of various reputed persons who were occupying responsible position(s) in different walks of life. It was submitted that the Board of Directors consists of Former Judge of the Supreme Court of India, Retired Senior Officer of the Reserve Bank of India, Retired Director General of Police and complaint lodged with some designed motive only adding pages after pages borrowed from a some other Petition, if entertained by the Magistrate and orders are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 in both Petitions vehemently opposed the Petitions. Learned Counsel for Respondent No. 2 submitted that the Petitioner is having no concern with Petition filed in Delhi High Court at the instance of one Mr. Atul Pandey and the Petitioner by connecting itself with Atul Pandey cannot dislodge the Respondent. It is submitted that in one of the Petition filed before Delhi High Court at the instance of Citizen Whistle Blower Forum which consists of reputed persons including Prashant Bhushan, Senior Advocate, certain orders were passed by Delhi High Court. It is submitted that it came to his knowledge that one Petition was filed before Delhi High Court only through news paper, except this he is not connected with said Abhay Yadav. Learned Counsel appearing for Respondent No. 2 admits that Respondent No. 2 had not approached to the authorities like SEBI or RBI and submitted that as the Respondent No. 2 had lodged the complaint against the Petitioners for their misdeeds the Respondent No. 2 expected that on registration of FIR against the Petitioner Company the investigating agency would take appropriate steps during the course of investigation including seeking necessary information fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taka Vs. M. Devendrappa and Another [(2002) 3 SCC 89], Kaptan Singh Vs. State of Uttar Pradesh and Others [2021 CRI.L.J. 3922], Ghulam Mohi-ud-Din Vs. State of J K and Others [CRMC No. 761/2017 (High Court of Jammu and Kashmir)], Naroji Vs. State of Maharashtra [2019 SCC OnLine Bom 3928], Mrs. Rita Bhalla and Anr Vs. State (Govt of NCT of Delhi) and Anr [Crl.M.C. 3532/2016 + Crl.M.C.3533/2016 (High Court of Delhi)], Harish Fabiani Others Vs. Enforcement Directorate and Others [WP(CRL).408/2022 (High Court of Delhi)]. 24. On hearing the learned Counsel appearing for respective parties and on going through the material placed on record, we find considerable merit in the submissions of learned Counsel appearing for Petitioners. 25. Perusal of the complaint submitted by Respondent No. 2 shows that the Respondent No. 2 submitted that he is working with one Illuminati services as Office Clerk since last couple of years and it is admitted in the complaint that the complainant is residing at Biloshi, Tq. Wada, District Palghar on leave and license basis since 26.03.2021. Thus, there is merit in the submission of learned Senior Counsel appearing for the Petitioner that the Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to study the balance sheet of the Petitioner for a past several years in a very limited span of purchasing the shares and lodging the report to the Magistrate so as to arrive at a conclusion that the Petitioner Company has siphoned the amount and played mischief. 29. There is also merit in the submissions of Mr. Rohatgi, learned Senior Counsel that the majority material in the complaint is the replica of the material which was filed in the complaint which was the subject matter of Petition before Delhi High Court and though the Respondent No. 2 denied any connection with Mr. Yadav who had filed the Petition before Delhi High Court, there is a reason to believe that there was some nexus of the Respondent No. 2 and Mr. Yadav. 30. Though, learned Counsel appearing for Respondent No. 2 relies on the judgments and there cannot be any dispute on the proposition of law expressed in the judgment, considering the peculiar facts referred to above by us, in our opinion, the judgments relied on by learned Counsel appearing for Respondent No. 2 are not of any help to Respondent No. 2. 31. Learned Counsel appearing for Petitioners were also justified in submitting that the complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... geance as if he is the emperor of all he surveys. It is interesting to note that during the tenure of the appellant No.1, who is presently occupying the position of Vice-President, neither the loan was taken, nor the default was made, nor any action under the SARFAESI Act was taken. However, the act ion under the SARFAESI Act was taken on the second time at the instance of the present appellant No.1. We are only stating about the devilish design of the respondent No.3 to harass the appellants with the sole intent to avoid the payment of loan. When a citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. As we have noticed, he has been able to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an application under Section 156 (3) Cr.P.C. is a simple application to the court for issue of a direction to the investigating agency. We have been apprised that a carbon copy of a document is filed to show the compliance of Section 154 (3), indicating it has been sent to the Superintendent of police concerned. 29. At this stage it is seemly to state that powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari [(2014) 2 SCC 1: (2014) 1 SCC (Cri) 524] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR. (Emphasis supplied) 32. There is also merit in the submissions of learned Counsel appearing for Petitioners that though it was alleged in the complaint that one Mr. Harish Fabiani had obtained loan and misutilized the loan amount, the document placed on record and relied on by Mr. Rohatgi, learned Senior Counsel demonstrates that the said loan was repaid. 33. We also find merit in the submissions of Dr. Chandrachud appearing for Petitioner in WP/6812/2021 that the Respondent No. 2 failed to provide necessary details in the complaint and only vague statements were made. Mr. Chandrachud justified in submitting that if the Petitioner could have failed in repayment of the loan the financial institution certainly would have initiated action against the Petitioner treating him ..... X X X X Extracts X X X X X X X X Extracts X X X X
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