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TMI Blog2012 (1) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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) The company was earlier owned, controlled, managed by Late Shri Damodar Prasad Gupta alon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /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 by the private investigating agency i.e. Lancers Network Private Limited claims that one Mr. J. Berry lives at B-14, Hauz Kh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 3150 shares on 31.3.93 have been claimed to have been filed with the office of the Registrar of Companies on 29.3.1995 along with form 18 and form 32 against a consolidated Receipt No. 35444, on which a cash of Rs. 300 has been paid as filing fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was directed to be taken against the petitioners. It may be pertinent here to mention that the only coercive action which was being taken by the respondent nos. 1 to 3 was issuance of non-bailable warrants against the present petitioners as they were not cooperating in the investigation. The interim or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 kinds of cases wherein such power should be exercised. 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 complaint or the charge-sheet, do not in law constitute or spell out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of the court or not. 9. In Municipal Corporation of Delhi Vs. R.K. Rohtagi (1983) 1 SCR 884 at p. 890 : (AIR 1983 SC 67 at p. 70) it is reiterated : It is, therefore, manifest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention 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 complaint itself makes out a prima facie case for registration of a cognizable offence which has been done in the' instant case. In terms of Bhajan Lal's case (supra), one of the illustrative grounds enunciated for quashing of the FIR is that if a plain reading of the FIR or the complaint does not make out a prima facie case against the accused persons, then only the FIR can be quashed. Certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution, 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 Supreme Court, by observing that the dispute between the parties was essentially one of sale and purchase of a piece of land or breach of contract, which should not be converted into an offence of cheating, as there was no dishonest intention on the part of the accused in those cases at the time of entering into the transaction, to either cause wrongful gain to himself or to cause wrongful loss to the accused, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 or to the Supreme Court after the parties have adduced evidence before the trial court and a finding has been returned by the trial Court holding whether an offence is made out or not in stark contrast to the case like the present one which is at the threshold itself. 22. It will not be out of place to mention here that the very registration of the FIR in the instant case immediately activated the three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver 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 constitutes their defence and it will have to be proved by the petitioners during the course of the trial by adducing evidence to that effect. It cannot be said at this stage that what is being stated by either of the parties, especially by the petitioners, is a gospel truth and by putting reliance upon the same, the FIR deserves to be quashed. As a matter of fact, the entire effort of the petitioners has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wards 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 by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. (5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the court by which he was discharged or of any other court to which the first-mentioned court is subordinate. (6) Nothing in this section shall affect the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Form 3 dated 20.01.2003 Duplicate driving license Annual return dated 26.09.2002 Form 23 dated 09.07.2003 Form 2 dated 27.03.1995 in respect of purported allotment of 1454 shares on 30.06.1993 Form 2 dated 23.03.1995 in respect of purported allotment of 3150 shares on 31.03.1993 Form 32 with receipt no. 34444 (ii) Various forms such as Form 32, 18 and Annual Return were filed by the accused on 08.06.2004 showing themselves to be the shareholders/ owners of the Company from 1993 onwards (iii) Allegedly forged share certificates and transfer deeds (iv) Alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 law very clear in case titled State of Bihar Vs. Murad Ali AIR 1989 SC 1: (1989) 4 SCC 655 makes the position of the law very clear. The relevant extracts of the judgment are as follows: In the State of Bombay Vs. S.L. Apte, (1961) 3 SCR 107: (AIR SC 578), the question that fell for consideration was that in view of earlier conviction and sentence under Section 409 IPC a subsequent prosecution for an offence under Section 105 of Insurance Act, 1935 was barred by Section 26 of the General Clauses Act and Article 20 (2) of the Constitution. This Court observed (at Pp. 581 and 583 of AIR): To operate as a bar the second prosecution and the consequential punishment there under, must e for 'the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed 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 the FIR. If any action is taken by the IO beyond the powers conferred on him under Code of Criminal Procedure, the petitioners may have an appropriate remedy available to them in law, but certainly it cannot be a ground for quashing of the FIR. In the instant case, the petitioners themselves have admitted that certain documents had been handed over in original by the petitioners to the IO while the remaining could not be produced. If that be so, for this purpose the petitioners have to satisfy the IO as to whether they are cooperating in the investigation or not. Normally in a case of this nature, it will be essential that the person concerned is subjected to custodial interrogation as it entails investigation as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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