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TMI Blog2024 (1) TMI 1319X X X X Extracts X X X X X X X X Extracts X X X X ..... filed with the police only to give a criminal colour which actually was commercial in nature. Most importantly, it needs to be noticed that it was a plain and simple transaction between the corporates. Even as per the complainant s case, the short-term loan was advanced in the year 2010 for a period of one year. However, when the same was not returned, no steps were taken by the complainant to recover the same until the FIR in question was registered on 29.07.2018 i.e. 8 years 7 months later. The entire factual matrix and the time lines clearly reflects that the complainant deliberately and unnecessarily has caused substantial delay and had been waiting for opportune moment for initiating false and frivolous litigation. The FIR in question, if proceeded further, will result in absolute abuse of process of court. It is a clear case of malicious prosecution. Hence, the same is required to be quashed - the impugned order passed by the High Court is set aside - appeal allowed. - Vikram Nath And Rajesh Bindal, JJ. For the Petitioner : Mr. Nakul Dewan, Sr. Adv., Mr. Harsh Sethi, Adv., Mr. Anant Nigam, Adv., Mr. Shantanu Parashar, Adv., Mr. Neil Chatterjee, Adv., Mr. Raghav Luthra, Adv. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ashing of the summoning order [Dated 15.02.2021 in Case No.2828 of 2021 (re-numbered as 4084 of 2021)] has been impugned in the present appeals. FACTUAL MATRIX 4. Karan Gambhir, who owns M/s D.D. Global Capital Pvt. Ltd. (hereinafter referred to as the Company ) is the complainant in the FIR [FIR No.1271 of 2018 dated 29.07.2018 registered at Gautam Budh Nagar Police Station, NOIDA] which was registered against Sushil Gupta, Rajesh Gupta, Dinesh Gupta, Baljeet Singh others. Three private limited companies had also been arrayed as accused i.e. BDR [M/s BDR Builders and Developers Pvt. Ltd. (hereinafter referred to as BDR )] , Gulab Buildtech [M/s Gulab Buildtech Pvt. Ltd. (hereinafter referred to as Gulab Buildtech )] and Verma Buildtech [M/s Verma Buildtech and Promoters Pvt. Ltd. (hereinafter referred to as Verma Buildtech )] . The individuals, namely, Sushil Gupta, Rajesh Gupta and Dinesh Gupta are stated to be the promoters of the aforesaid three companies. 5. Only two of the accused persons, i.e. Dinesh Gupta and Rajesh Gupta approached the High Court seeking quashing of the summoning order and the FIR. Nothing was pointed out at the time of hearing that any matter filed by any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Ms. Anjana Prakash, learned senior counsels for the appellants submitted that the complainant who owns the company invested a sum of ₹5,16,00,000/- in Gulab Buildtech and ₹11,29,50,000/- in Verma Buildtech by acquiring equity shares thereof. Prior to the investment, a resolution was passed by the company in the meeting of the Board of Directors held on 25.03.2011, approving investment of ₹11,29,50,000/- in the equity shares of Verma Buildtech. Similarly, by a resolution dated 26.08.2011, investment in the equity shares of ₹5,16,00,000/- was approved in Gulab Buildtech. Hence, the complainant s case that it was a short-term loan given by the company, was totally contrary to the record since a conscious decision had been taken by the company to make investments in the equity shares of Gulab Buildtech and Verma Buildtech. The above two resolutions are reproduced hereunder: First Resolution: AUTHORIZATION TO INVEST INTO THE EQUITY SHARES OF M/S VERMA BUILDTECH PROMOTORS PRIVATE LTD. The Chairman apprised the Board of Directors of the Company about the benefit of investment into the equity shares of M/s Verma Buildtech Promoters Private Ltd offered by way of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal Limited, the company of the complainant filed an application [Company Application No.321 of 2014] before the Delhi High Court seeking recall of the order of amalgamation passed by the High Court as it was without any notice to the company. Other grounds were also raised in this application for recalling the order of amalgamation. The aforesaid application was dismissed by the High Court on 15.03.2016 by a detailed order dealing with all the issues raised. The order attained finality as the company did not challenge the same any further. In the aforesaid proceedings, a letter dated 08.10.2014, allegedly written by Sushil Gupta, one of the accused (not before this Court), claiming that the shares of the company with Verma Buildtech were pledged to him, was also placed on record. This issue was also dealt with by the High Court. 13. More than two years after the application filed by the company was dismissed by Delhi High Court, the instant complaint was filed with the police at Gautam Budh Nagar, on the basis of which FIR in question was registered on 29.07.2018. 14. It is the appellants submission that a purely civil dispute with reference to financial transactions between corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch other. He also referred to the Balance Sheet of Gulab Buildtech and Verma Buildtech to show that the amount advanced by the complainant was shown in the column of current liabilities . Indian Accounting Standards have been referred to show the meaning of current liabilities which is in the form of short-term loan. 20. The argument is that the accused persons in connivance with each other have cheated the complainant for crores of rupees by making false promise of higher returns. There is no error in the order passed by the High Court. The appeals deserve to be dismissed. FINDINGS 21. We have heard learned counsel for the parties and perused the material on record. 22. On a complaint filed by the respondent no.2, FIR in question was registered on 29.07.2018. The address of the company D.D. Global was mentioned as C/o A A Earth Movers, D-9, Sector-2, Noida Sector-20, Gautam Budh Nagar, U.P. to be the present as well as the permanent address. This is the first misleading statement made by the complainant. From a copy of the resolution passed by the DD Global dated 25.03.2011, it is evident that the registered office of the DD Global is located at F- 1/9, Okhla Industrial Area, Phas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hogal, Northeast, New Delhi, 110014. 10. Accused Company (Later amalgamated in BDR Builders) M/s Verma Buildtech and Promoters Pvt. Ltd. R-6A, IInd Floor, Green Park Extension, South Delhi, New Delhi, 110016. 11. Accused Company M/s BDR Builders and Developers Pvt. Ltd. C 43, Jangpura Extension, New Delhi, 110014. 25. Though address of Karan Gambhir who was signatory of the complaint on the basis of FIR in question registered, was mentioned to be of Noida, same as was given in the complaint. However, his residential address was not given. His parentage was also not mentioned. The second person shown in the chargesheet is a supporting witness, Sanjay Gambhir, who has shown his present and permanent address of P.S. Hauz Khas, N-58, Panchsheel Marg, New Delhi . The same is the position with reference to Tarun Gambhir, who also is claimed to be a supporting witness. All other witnesses were officials who were involved in the investigation of the case. 26. The Chief Judicial Magistrate, Gautam Budh Nagar, vide order dated 15.02.2021 took cognizance thereof and issued summons to the accused. The order shows no application of mind, as no reasons have been assigned. The Magistrate also did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant, it was nowhere mentioned that initially the complainant had advanced loan, which was later on converted into debt equity. It only mentioned that the complainant was a shareholder of the transferor company and as a result of merger their percentage of shareholding and value of shares decreased. It was also nowhere pleaded in the application that the shares held by the company were mortgaged to Sushil Gupta by forging the documents. The new story of forging documents was built up in the complaint filed with the police only to give a criminal colour which actually was commercial in nature. 31. Not only this, despite dismissal of the application filed by the complainant for recall of the merger order by the High Court vide order dated 15.03.2016, in the complaint made to the police on 29.07.2018 i.e. more than two years and four months later, still the complainant did not furnish complete details thereof, especially the filing and dismissal of the application for recall of the merger order. Rather, it merely stated that he got the documents from the High Court which were filed along with the amalgamation application and came to know about certain facts therefrom but did no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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