Allahabad High Court
J. S. Shinde @ Jagannath Sakharam Shinde vs State Of U.P. And Another on 12 February, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:26469 Court No. - 91 Case :- APPLICATION U/S 482 No. - 47200 of 2023 Applicant :- J. S. Shinde @ Jagannath Sakharam Shinde Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajiv Lochan Shukla,Namit Srivastava Counsel for Opposite Party :- G.A.,Udai Chandani Hon'ble Mayank Kumar Jain,J.
1. Heard Sri Rajiv Lochan Shukla, learned counsel for the applicant, learned AGA for State and Sri Udai Chandani, learned counsel for opposite party no.2.
2. Present application under Section 482 of Cr PC has been filed by the applicant, praying for quashing the summoning order dated 11.11.2022 passed by Additional Chief Judicial Magistrate, Court No.3, District Ghaziabad and quash the entire proceedings of Complaint Case No.5168 of 2022 under Sections 406, 420 of IPC, Police Station Sihani Gate, District Ghaziabad, pending in the court of Additional Chief Judicial Magistrate, Court No.3, District Ghaziabad.
3. The case of opposite party no.2, as per the complaint, is that he was a member of Chemist and Druggist Federation of Uttar Pradesh, which is a unit of All India Origin of Chemist and Druggist Distributor Ltd. (AIOCD Ltd.) since 2007. At present, he is Zonal President of Chemist and Druggist Federation of Uttar Pradesh.
3.1 The applicant, being Secretary of AIOCD Ltd., created a proxy Firm in the name of AIOCD Ltd. and became Managing Director. In order to deceive the Drug Dealers, the applicant started using the name of AIOCD Ltd. The applicant by giving false promise of profit, compelled the members of AIOCD Ltd. to buy the shares of AIOCD Ltd. Opposite party no.2 purchased 2000 shares at the rate of Rs.10/- each. Opposite party no.2, waited for profit but no profit was paid to him. He wrote a letter on 12.7.2014 to the applicant demanding profit in the investment made by him, but neither any payment was made nor was any reply made by the applicant. On making calls by opposite party no.2, the applicant assured for the entire payment of profit.
3.2 On 10.10.2019, opposite party no.2 sent a reminder letter to the applicant, but nothing was done. The applicant has misappropriated the amount invested by the members and created a Company, namely, AIOCD PHARMA AWACS.
3.3 Opposite party no.2 wrote a letter to the applicant on 22.11.2019, for refund of amount invested by him, but nothing has been done.
4. It is submitted by learned counsel for the applicant that the trial Court ordered for an inquiry under Section 202 (1) of Cr PC, but the said inquiry report was ignored by the trial Court while passing the impugned order. Shares were dully allotted to opposite party no.2 on 19.12.2007 and certificate of investment was issued to him. AIOCD Ltd. is not arrayed as a party in the complaint. Since the investment was made in the Company, therefore, an individual is not liable for any loss or profit.
4.1 It is further submitted that as per financial transactions in dispute, no criminal proceedings can be initiated against the applicant. The impugned order has been passed in a mechanical manner and there is no direct or indirect or circumstantial evidence against the applicant. The investment was made in the year 2007, while the complaint was filed in the year 2022, after lapse of fifteen years and, therefore, provisions of IPC are not attracted. The transaction is of civil nature. All the proceedings are commenced under proper documentation. All India Origin of Chemist and Druggist Distributor Ltd. has been amalgamated with Maharashtra Safe Chemists and Distributors Alliance Limited, vide order dated 13.4.2023 passed by NCLT, Mumbai Bench. All the proceedings were in the knowledge of the complainant, but he never raised any objection. If there is any reasonable claim, it is of civil nature.
5. Per contra, learned AGA assisted by learned counsel for opposite party no.2, opposed the prayer and submitted that without any prior information, the applicant formed a proxy firm using the same initials and he transferred the entire assets of the earlier Company to the newly formed Company. The address of the newly formed Company and the earlier Company is the same, which also indicates the conduct of the applicant. No debentures were issued to opposite party no.2 and no dividend was paid to him.
5.1 It is also submitted that a report under Section 202 (1) of Cr PC was also submitted in which, it was mentioned that no profit in respect of the amount invested by opposite party no.2 was returned to him by the Company of the applicant.
6. In rebuttal, learned counsel for the applicant submitted that the order of the NCLT was not challenged by opposite party no.2. Merely on the basis that the address of two Companies is similar, does not indicate that some fraud has been played and once the order of the NCLT has become final, no offence is made out against the applicant.
7. Considering the rival submission of learned counsel for the parties as well as the material available on record, this Court finds that the learned Magistrate, after perusing the statements of the complainant and the witnesses, has summoned the applicant to face trial. So far as the contentions raised by the applicant are concerned, they can very well be raised before the trial Court by moving an appropriate discharge application.
8. Therefore, present application is disposed of, with a direction to the applicant to move an appropriate discharge application before the trial Court, within a month from today, which shall be considered and decided by the trial Court expeditiously after affording an opportunity of hearing to the parties.
9. For a period of 30 days from today or till the disposal of discharge application, whichever is earlier, no coercive action shall be taken against the applicant.
Order Date :- 12.2.2024 RKK/-