Amit Kumar Kejriwal vs The State Of Jharkhand on 23 November, 2022

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Jharkhand High Court

Amit Kumar Kejriwal vs The State Of Jharkhand on 23 November, 2022

1.Amit Kumar Kejriwal, aged about 42 years, son of Sri Ashok Kumar Kejriwal, permanent resident of Mohalla Babhantoli of Giridih Town, P.O. and P.S. Giridih(T), District -Giridih (Jharkhand; at present residing at 28, New Road, Ganesh Court, Alipore, P.O. and P.S. Alipore, Kolkata, West Bengal

2.Sumit Kumar Kejriwal, aged about 39 years, son of Sri Ashok Kumar Kejriwal, permanent resident of Mohalla Babhantoli of Giridih Town, P.O. and P.S. Giridih(T), District-Giridih (Jharkhand); at present residing at 28, New Road, Ganesh Court, Alipore, P.O. and P.S. -Alipore, Kolkata, West Bengal ..... Petitioners

-- Versus --

1.The State of Jharkhand

2.Gunwant Singh Saluja, son of late Daljit Singh Saluja, resident of Saluja House, Netaji Chowk, Bhandaridih, P.O. and P.S. -Giridih, District- Giridih, Jharkhand .....Complainant/ Opposite Party

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners :- Mr. Vimal Kirti Singh, Advocate Mr. Lukesh Kumar, Advocate Mr. Pradeep Kumar,Advocate Mr. Praveen Shankar Prasad, Advocate Mr. Priyanshu, Advocate For the State :- Mr. Ravi Prakash, Spl. P.P. For the O.P.No.2 :- Mr. Sumeet Gadodia, Advocate Ms. Shilpi Sandil Gadodia, Advocate Mr. Ritesh Kumar Gupta, Advocate Mr. Aditya Kumar, Advocate

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5/23.11.2022 Heard Mr. Vimal Kirti Singh, the learned counsel appearing on behalf of the petitioner, Mr. Sumeet Gadodia, the learned counsel appearing on behalf of the O.P.No.2 and Mr.Ravi Prakash, the learned counsel appearing on behalf of the respondent-State.

This petition has been filed for quashing of the entire criminal proceeding including the order dated 30.05.2019 in connection with Complaint Case No.409 of 2019, whereby cognizance has been taken for the offences under sections 409, 420, 467, 468, 471 and 120B of the Indian Penal Code and under sections 66C and 66D of the Information Technology Act, and the case is pending before the learned Judicial Magistrate, 1st Class, at Giridih. 2

The present complaint has been filed alleging therein that a Memorandum of Understanding (M.O.U) has been signed by Gunwant Singh Saluja (complainant) and Sumit Kumar Kejriwal (alleged accused) on 28.02.2011 for sale and purchase the company namely, Swati Concast and Power Private Limited. In which Sumit Kumar Kejriwal is seller of the said company. Prior of date 28.02.2011, Sumit Kumar Kejriwal was the Director of the said Swati Concast and Power Private Limited Company and he was willing to sell the said company to Gunwant Singh Saluja for a sum of Rupees 20 crores 71 lakh. As per Memorandum of Understanding both the parties agreed and total payment sum of Rupees 10 crores 15 lakh has been paid by the complainant Gunwant Singh Saluja through RTGS as well as Bank account in favour of Truf Advertising Marketing Company Private Limited, Amit Kumar Kejriwal, Swati Mining Pvt. Ltd. and Gunwant Singh Saluja and Balvinder Singh was appointed as Managing Director and Director of said Swati Concast and Power Private Limited Company by Amit Kumar Kejriwal and Sumit Kumar Kejriwal. Thereafter, the complainant Gunwant Singh Saluja started his role in said Swati Concast and Power Private Limited Company as Managing Director and Balvinder Singh started his role as Director in the said Swati Concast and Power Limited Company. In the meantime, investment has been done by the complainant Gunwant Singh Saluja in the said company and work of said company was restarted. It is also alleged that when Memorandum of Understanding was signed between both the parties that time said Swati Concast and Power Private Limited Company was in dormant condition. After appointment of Gunwant Singh Saluja and Balvinder Singh as Managing Director and Director of the said company the work of the company was restarted.

After appointment of the complainant Gunwant Singh Saluja and Balvinder Singh as Managing Director and Director of the said company, the Form 32 was forwarded to Board of Registrar of companies. On resolution dated 01.07.2011 complainant was authorized signatory with respect to transaction to 3 be made with the United Bank of India, Giridih Branch. On 18.01.2013, a cheque was drawn upon the United Bank of India which was dishonoured by the bank taking plea that, all the cheques have been cancelled by the company and a new cheque book has been issued. Upon correspondence being made with the bank, the bank did disclose that his authorization has been cancelled, thought he had never resigned from the company. Subsequently, it got transpired that his signature was copied and pasted over a piece of paper which was converted into a letter of resignation and the same letter was filed along with Form 32. Thus, it has been alleged that both the persons namely, Amit Kumar Kejriwal and Sumit Kumar Kejriwal did submit Form 32 enclosing therewith the forged resignation letter.

Mr. Vimal Kirti Singh, the learned counsel appearing on behalf of the petitioners submits that the F.I.R has been registered on 30.01.2013 with regard to allegation in which Final Form has been submitted on 31.07.2018. He took the Court to the Final Form annexed with the petition and submits that Final Form was to the effect that the case is civil in nature. He further submits that on the protest petition filed by the O.P.No.2, the learned court has taken the cognizance on 30.05.2019 which is not in accordance with law. He draws the attention of the Court to the M.O.U annexed with the petition and submits that for transfer of the company 20.71 crores was required to be paid by the O.P.No.2, however, a sum of Rs.10.15 crores only was paid by the O.P.No.2 in terms of the said M.O.U. He further submits that the O.P.No.2 had resigned from the company on 26.11.2012 which was also acknowledged by the registration of company Ministry of Corporate. By way of referring Annexure-5 which is a document of the Registrar of Companies (in short, R.O.C), he submits that the resignation was sent and it was accepted by the R.O.C. He took the Court to the paragraph no.5 of the supplementary affidavit filed by the petitioner and submits that the copy of the original document received by the I.O. from the office of the Registrar of the Companies (R.O.C.), Kolkata has been sent for 4 examination by the Forensic Laboratory and hence the report of Forensic Science Laboratory, Kolkata is the report on documents examined by them which was copy/ photocopy of resignation letter which has been answered in the said report. He further draws the attention of the Court to the letter dated 25.06.2014 of the Registrar of Companies and submits that the R.O.C has communicated the Investigating Officer (I.O) about providing of the documents to the said officer. He further refers to the forensic examination report contained in the said supplementary affidavit and submits that the opinion is there annexed with that supplementary affidavit. The R.O.C received copy of the same. He further refers to the paragraph no.32 of this Cr.M.P and submits that the petitioners and other Board of Directors were fully authorized to remove the complainant at any point of time under the Companies Act, 1956 and there was no mens rea on the part of the petitioner to affix a forged signature of the complainant. He submits that the Board of Directors and the petitioners have 100 percent share in the company and these petitioners are having power to remove anybody and to buttress his argument, he relied on section 169 of the Companies Act, 1956. He further submits that there is no mens rea of cheating and on the protest petition, the learned court has taken cognizance which is not in accordance with law. He further elaborates his argument by way of submitting that once the Final Form is submitted, the learned court is not to allow to look into the materials investigated by the police and to take cognizance and to buttress his argument, he relied in the caes of "Vishnu Kumar Tiwari v. State of Uttar Pradesh, through Secretary, Home, Civil Secretariat, Lucknow and Another.", reported in (2019) 8 SCC 27. Paragraph nos.8 and 36 of the said judgment are quoted hereinbelow:

"8. The order passed by the Chief Judicial Magistrate shows that there is consideration of the protest petition. Neither the Chief Judicial Magistrate nor the Additional Sessions Judge have failed to apply the correct principles of law. In this regard, it is apposite to notice the following observations made in the impugned judgment [Shiv Shanker Ojha v. State of U.P., 2017 SCC OnLine All 2895] of 5 the High Court: (Shiv Shanker Ojha case [Shiv Shanker Ojha v. State of U.P., 2017 SCC OnLine All 2895] , SCC OnLine All para 10) "10. In Pakhandu v. State of U.P. [Pakhandu v. State of U.P., 2001 SCC OnLine All 967 : (2001) 43 ACC 1096] , it is opined by the Court that in the case of final report the Magistrate has four options:

(1) He may agree with the conclusion of the police and accept the final report and drop the proceeding. (2) He may take cognizance under Section 190(1)(b) CrPC and issue process straightaway to the accused without being bound by the conclusion of the investigating agency where he is satisfied that upon the facts discovered by the police, there is sufficient ground to proceed. (3) He may order for further investigation if he is satisfied that the investigation was made in a perfunctory manner.

(4) He may without issuing process and dropping the proceedings under Section 190(1)(a) CrPC upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 CrPC and thereafter whether complaint should be dismissed or process should be issued."

36. A learned Single Judge of the High Court of Allahabad, in the aforesaid decision, had this to say in para 11: (Mohd. Yusuf case [Mohd. Yusuf v. State of U.P., 2007 SCC OnLine All 1283 : 2008 Cri LJ 493] , SCC OnLine All) "11. Where the Magistrate decides to take cognizance under Section 190(1)(b) ignoring the conclusions reached at by the investigating officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in the case diary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the investigating officer. In the instant case, the cognizance was taken on the basis of the protest petition and accompanying affidavits. The Magistrate should have adopted the procedure of complaint case under Chapter XV of the Code of Criminal Procedure and recorded the statements of the complainant and the witnesses who had filed affidavits under Sections 200 and 202 CrPC. The Magistrate could not take cognizance under Section 190(1)(b) CrPC on the basis of protest petition and affidavits filed in support thereof. The Magistrate having taken into account extraneous material i.e. protest petition and affidavits while taking cognizance under Section 190(1)(b) CrPC the impugned order is vitiated."

He further submits that the coordinate Bench of this Court has also 6 taken the same view in the case of "Shripal Chand Jain @ Shripal Jain v. State of Jharkhand", Cr.M.P.No.142 of 2009 which was disposed of by order dated 18.06.2020 and refers to the paragraph no.12 of the said judgment, which is quoted hereinbelow:

"12. In this case, I find that the court has proceeded as if the case was filed in complaint, naturally so. In that case, the court had to solely rely upon the statements of the enquiry witnesses and the statement of the complainant, which has been recorded in Solemn Affirmation. The court could not have relied on the statements recorded in the case diary during investigation by the police. This is for the reason that on the earlier occasion the court relying upon the statements of the case diary had accepted the final form/final report, which exonerates the petitioner. Once the court, after going through the case diary, accepts the final report, which exonerates the petitioner, in a complaint, after accepting the final report, cannot go back and rely upon the case diary and come to a different conclusion. This will mean that the court is contradicting itself."

On these grounds, he submits that the entire criminal proceeding is vitiated and this Court is competent to quash the proceeding under section 482 Cr.P.C.

Per contra, Mr. Sumeet Gadodia, the learned counsel appearing on behalf of the O.P.No.2 submits that the F.I.R was registered alleging therein that O.P.No.2 never resigned from the company but his signature was copied and put on the forged resignation letter dated 26.11.2012 and filed Form-32 with the Ministry of Corporate Affairs for cessation of the Directorship of the O.P.No.2 with effect from 27.11.2012 and Form-32 was signed by Mr. Sumit Kumar Kejriwal and further certified by Mr. Bijay Kumar Sah, Chartered Accountant. He draws the attention of the Court to the order dated 24.10.2013 passed in Cr.M.P.No.1736 of 2013 which was filed by the petitioner for quashing of the F.I.R and submits that in that order it has come that a sum of Rs.10.15 crores has been paid by the O.P.No.2 and how this signature of the O.P.no.2 has been utilized has also been discussed and considering all these aspect, the Cr.M.P. was dismissed by the coordinate Bench of this Court. He further submits that the petitioners filed the A.B.A. No.3266 of 2013 points with regard to civil 7 dispute was also raised therein and considering all the aspects including the case-diary the coordinate Bench of this Court considering the 10 crores has been paid by the O.P.No.2 and thereafter he will resigned from the company does not sound good and considering this the A.B.A filed of the petitioners has been rejected which was taken up to the Hon'ble Supreme Court in Special Leave to Appeal (Criminal) No.1877 of 2014 and on 14.03.2014 that Special Leave to Appeal was adjourned on the assurance of the learned counsel for the petitioners that he would get back to the court that the petitioner will pay a sum of Rs.10.15 crores to the O.P.No.2, the said S.L.P was dismissed by the Hon'ble Supreme Court on 24.03.2014. He further submits that since forged signature by the petitioner was certified by the Chartered Accountant namely Bijay Kumar Sah the O.P.No.2 complained before the Institute of Chartered Accountants of India and pursuant to that complaint, the disciplinary committee was constituted by the said Institute which was investigated and it was found that the original resignation letter has not been produced by the Chartered Accountant and it has been found that interpolation has been made. The Director, Central Forensic Science Laboratory (CFSL) has forwarded the forensic examination report to the learned Chief Judicial Magistrate, Giridih which has been brought on record and forensic examination report opined that the signatures have been produced by the process of scanning and printing. He further submits that inspite of the finding of the coordinate Bench of this Court in Cr.M.P., the police has submitted the Final form saying that it is a civil nature of case, the O.P.no.2 having no option has filed the protest petition and the learned court after going into the solemn affirmation of the enquiry witnesses as well as the materials and other documents has taken the cognizance. He submits that there is no illegality in the order taking cognizance. He further submits that only a reference of forensic report has been made in the said cognizance order, however, the cognizance order is not based on that forensic report and in that view of the matter, the judgment relied by the learned counsel for the petitioner is not attracted and 8 not helping the petitioners. He submits that in the judgment, he relied in the case of "Vishnu Kumar Tiwari v. State of Uttar Pradesh, through the Secretary Home, Civil Secretariat, Lucknow and Another', reported in (2019) 8 SCC 27, for the offence made in paragraph no.8 is not in dispute and it is well settled principle of law and the cases are being decided on the parameters of that. He submits that the case of "Shripal Chand Jain @ Shripal Jain v. State of Jharkhand" [Cr.M.P.No.142 of 2009] relied by the learned counsel for the petitioner, is on different footing and on the facts and circumstances of that case, which is not helping the petitioners.

Mr. Ravi Prakash, the learned counsel appearing on behalf of the respondent State draws the attention of the Court to the order taking cognizance and submits that the learned court has rightly taken cognizance after examining the documents as well as the solemn affirmation and the enquiry witnesses and he has done so correctly in view of the well settled principle as held by the Hon'ble Supreme Court in the case of "Vishnu Kumar Tiwari v. State of Uttar Pradesh, through the Secretary Home, Civil Secretariat, Lucknow and Another'(supra). On these grounds, he submits that there is no occasion to interfere in this matter at this stage when the learned court after applying its judicial mind has taken cognizance.

Mr. Vimal Kirti Singh, the learned counsel appearing on behalf of the petitioners by way of replying submits that the earlier quashing petition and anticipatory bail application orders were at the time when only the F.I.R was lodged and the investigation was not completed. He further submits that the learned magistrate is empowered to take cognizance under section 190 of the Cr.P.C however in the case in hand, he has taken alternate route and therefore the cognizance order is bad. He further submits that the case may kindly be allowed.

In light of the above submissions of the learned counsels appearing on behalf of the parties, the Court has gone through the materials on 9 record and finds that admittedly the F.I.R was registered by the O.P.No.2.

Admittedly the F.I.R was registered by the O.P.No.2 alleging that he has never resigned from the company namely, M/s Swati Concast and Power Private Limited but his signature was copied and put on the forged resignation letter dated 26.11.2012 and fraudulently Form-32 with the Ministry of Corporate Affairs for cessation of the Directorship of the O.P.No.2 was filed. The report of the Indian Institute of Chartered Accountants suggest as to how Bijay Kumar Sah who was the Chartered Accountant has certified the said resignation letter. The Forensic report brought on record clearly suggest that the signatures are comprised of dots in a pattern indicating that these signatures have been produced by the process of scanning and printing and Annexure-S.A./2 of that document suggest that there are dots of the signature which suggest that it was not the original signature and it has also been come in clear terms that it was a scanned one. In this background, how the police has investigated the matter and submitted charge sheet saying that it is a civil dispute is questionable. In that scenario, the complainant is having the right to file protest petition cum complaint case which has been done by the O.P.No.2. The learned magistrate, has taken cognizance by order dated 30.05.2019. Looking into the said cognizance order, it transpires that the learned court has not taken cognizance only on the ground of forensic science report, however, he has considered the solemn affirmation as well as the enquiry witnesses, the M.O.U and the cheque book and thereafter has taken cognizance. Apart from the F.S.L., the learned court has considered the documents in the said cognizance order which are quoted herein below:

"Accordingly, as per verdicts of Memorandum of Understanding, ownership of all the associate companies goes in favour of Director Amit Kumar Kejriwal and Sumit Kumar Kejriwal and complainant issued all the cheques in favour of Amit Kumar Kejriwal and his Associate company.

On further perusal of S.A. as well as inquiry witnesses it appears that on 28-02-2011 a Memorandum of Understanding has been prepared for sale and purchase of Swati Concast and Power Private Limited Company between both the parties in which seller of company was 10 Sumit Kumar Kejriwal and purchaser of the said company was Gunwant Singh Saluja. In respect to purchase the said company Gunwant Singh Saluja had liability to pay a sum of rupees 20 Crore 71 Lakh in favour of Sumit Kumar Kejriwal as per Memorandum of Understanding. After preparation of Memorandum of Understanding on 08-01- 2011 to 31-03-2012 total sum of Rupees 10 Crore 15 Lakh has been paid by complainant Gunwant Singh Saluja in favour of Amit Kumar Kejriwal and Sumit Kumar Kejriwal and when it came in the knowledge of complainant on 18- 01-2013 Cheque was drawn upon the United Bank of India which was dishonoured by the bank taking plea that all the Cheques have been cancelled by the company and a new Cheque book has been issued. After this incident, complainant approached before the bank then he got knowledge that a forged resignation letter has been filed before the Registrar of Companies as well as before the concerned bank. After inquiry, complainant reached at conclusion that a forged resignation letter has been sent before the Registrar of Companies as well as before the concerned bank in which his signature and signature of Balvinder Singh who is also Director of the company was scanned and pasted at the resignation letter and sent to Registrar of Companies as well as concerned bank. All the facts mentioned above have also been supported by all the inquiry witnesses.

On materials available on record, it appears that, Amit Kumar Kejriwal and Sumit Kumar Kejriwal who are merchant make cheating, forgery, Criminal conspiracy, breach of trust and crime relating to Information of Technology with complainant Gunwant Singh Saluja. Accordingly, a prima-facie case is made out against Amit Kumar Kejriwal and Sumit Kumar Kejriwal U/s 409, 420, 467, 468, 471, 120 B of I.P.C. and U/s 66 C and 66 D of Information of Technology Act."

Thus, it is not a cognizance order passed on the earlier investigation of the police, thus, the contention of the learned counsel for the petitioners with regard to taking of the cognizance based on the police report is not accepted by the Court. The ratio decided in the case of "Vishnu Kumar Tiwari v. State of Uttar Pradesh, through the Secretary Home, Civil Secretariat, Lucknow and Another" (supra), as relied by the learned counsel for the petitioners is not in dispute. The learned court has chosen the fourth option of receiving the protest petition and has proceeded to act under section 200 and 202 Cr.P.C. The right of the complainant of filing regular complaint is not taken away as has been considered in that judgment at paragraph no.24 of the said judgment which is quote below :

"24. In fact, the case itself was decided by a Bench of three learned Judges of this Court in view of the divergence of opinion in the Court. The Court held as follows: (Kishore Kumar Gyanchandani case [Kishore Kumar Gyanchandani v. G.D. Mehrotra, (2011) 15 SCC 513 : (2012) 4 SCC (Cri) 633] , SCC p. 514, para 6) "6. It is too well settled that when police after investigation files a final form under Section 173 of the Code, the Magistrate may disagree with the conclusion arrived at by the police and take cognizance in exercise of power under Section 190 of the Code. The Magistrate may not take cognizance and direct further investigation in the matter under Section 156 of the Code. Where the Magistrate accepts the final form submitted by the police, the right of the complainant to file a regular complaint is not taken away and in fact on such a complaint being filed the Magistrate follows the procedure under Section 201 of the Code and takes cognizance if the materials produced by the complainant make out an offence. This question has been raised and answered by this Court in Gopal Vijay Verma v. Bhuneshwar Prasad Sinha [Gopal Vijay Verma v. Bhuneshwar Prasad Sinha, (1982) 3 SCC 510 : 1983 SCC (Cri) 110] whereunder the view [Bhuneshwar Prasad Sinha v. State of Bihar, 1980 SCC OnLine Pat 165 : 1981 Cri LJ 795] of the Patna High Court to the contrary has been reversed. The Court in no uncertain terms in the aforesaid case has indicated that the acceptance of final form does not debar the Magistrate from taking cognizance on the basis of the materials produced in a complaint proceeding."

emphasis supplied)"

The learned court has proceeded in accordance with law and in the light of the ratio of the Hon'ble Supreme Court in the case of "Vishnu Kumar Tiwari v. State of Uttar Pradesh, through the Secretary Home, Civil Secretariat, Lucknow and Another" (supra), there is no illegality in the order taking cognizance. In the order of coordinate Bench relied by the learned counsel for the petitioner the facts of that case was that the learned court has taken cognizance and looking into the paragraphs of the case diary and on the basis of news paper report, and in that scenario, the coordinate Bench has held that cognizance order passed on earlier investigation and the news paper cutting is erroneous and that is why the coordinate Bench has interfered. The facts of the present case are otherwise. There is serious allegation of forging of the signature of the O.P.No.2. The person who has paid a sum of Rs.10.15 crores 12 will be dropped subsequently without any rhyme and reason does not sound good, moreover, disciplinary committee of the Institute of Chartered Accounts of India on the disciplinary committee report with regard to the Chartered Accountant who has certified the resignation letter has deprecated the action of the said Chartered Accountant. It is very elaborate one which has been brought on the record and for deciding this petition each and every paragraph of that committee is not required to be quoted in the order. Prima facie mens rea is there, however, mens rea is the subject matter of trial which can be proved by the parties by way of adducing the evidence before the trial court. In the earlier Cr.M.P the coordinate Bench of this Court looking into the F.I.R itself has come to the conclusion that there are allegations. However, without looking into the order of the coordinate Bench in Cr.M.P as well as the order passed in the anticipatory bail application which was affirmed upto the Hon'ble Supreme Court the materials available on the record and the order taking cognizance suggest that the signature of the O.P.No.2 has been forged, however, the same is the subject matter of trial.

In view of the above reasons and analysis, no case of interference is made out.

Accordingly, this Cr.M.P. No.3669 of 2019 is dismissed.

Interim order is vacated.

It is made clear that the trial will proceed in accordance with law without being prejudiced of any of the observation made in this order.

I.A. if any also stands disposed of.

( Sanjay Kumar Dwivedi, J.) SI/;

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