Delhi District Court
Ifci Limited vs The State on 20 August, 2014
IN THE COURT OF MANOJ JAIN: ASJ/SPECIAL JUDGE (PC ACT) (CBI)
SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
Criminal Revision Number : 44/2014
Unique ID No.02406R0179912014
IFCI Limited,
having its office at
IFCI Tower, 61, Nehru Place,
New Delhi-110019. ...........................Revisionist No.1
Through its Authorized Signatory
Sh. S.P. Bhatt.
Sh. S.P. Bhatt,
Assistant General Manager,
IFCI Ltd. having office at
IFCI Tower, 61, Nehru Place,
New Delhi-110019. ...............................Revisionist No.2
Sh. Malay Mukherjee,
Current Chief Executive Officer &
Managing Director, IFCI Ltd.
having office at
IFCI Tower, 61, Nehru Place,
New Delhi-110019. ...............................Revisionist No.3
versus
The State ......................................Respondent
Date of institution of Revision : 22.07.2014
Date of Allocation : 23.07.2014
Date of conclusion of arguments : 20.08.2014
Date of Order : 20.08.2014
Particulars related to impugned order
FIR No. : 185/2011
PS : Economic Offence Wing, Crime
Branch
Penal Section : 406/409/420/34/120-B IPC
Date of impugned order : 22.03.2014
Name of learned Trial Court : Sh. Vivek Kumar Gulia,
Ld. CMM, South, Saket.
IFCI Ltd & Ors Vs State CR No. 44/2014 Page 1 of 8
Memo of Appearance
Sh. Vikram Singh Panwar and Sh. Shivam Batra, learned counsels for Revisionists.
Sh. Inder Kumar, learned Additional Public Prosecutor for the State/ Respondent.
JUDGMENT
1 Instant case is little bit unusual. 2 Let me give a brief factual matrix leading to the present scenario. 3 M/s IFCI Limited, through its authorized signatory Sh. S.P. Bhatt,
filed a criminal complaint u/s 200 Cr. PC against M/s Murli Industries Ltd. and its promoters/directors for commission of offences u/s 406/420/463/464/465/467/471 r/w 120 B IPC. There was also a request to get the matter investigated u/s 156 (3) Cr.P.C. The matter related to Economic Offence Wing (EOW) and a status report was also called from the investigating agency. Since EOW had already, independently, received a similar complaint from IFCI Ltd., it registered FIR without there being any specific direction issued by the court.
4 Investigation is still underway.
5 In order to carry out comprehensive and appropriate investigation, the investigating agency asked complainant to cooperate with them and in the process, various requests were made. Besides telephonic requests, notices u/s 91/160 Cr.P.C. were also sent. So much so, even the Chief Executive Officer/Managing Director of the complainant company was also requested in writing to ask the concerned official to supply such IFCI Ltd & Ors Vs State CR No. 44/2014 Page 2 of 8 information as for want of those relevant documents and record, investigation was lagging.
6 Such requests had apparently fallen on deaf ears and resultantly EOW through its investigating officer i.e. SI Afsar Raza filed a Kalandra against complainant company and its authorized representative S.P. Bhatt for commission of offence u/s 175 IPC.
7 Such Kalandra was laid before the Ld. CMM (South) on 22.03.2014. Ld. CMM dispensed with the recording of evidence of SI Afsar Raza as complaint had been filed by him in discharge of his official duties. Holding that the requirements provided u/s 195 (1) (a) (i) Cr.P.C. stood complied with and that the offence punishable u/s 175 IPC stood revealed, Ld. trial court ordered issuance of summons not only against the complainant company and its authorized representative but also against its Chief Executive Officer/Managing Director observing as under:-
"It is observed that this kalandra has been filed against complainant Sh. S.P. Bhatt and the complainant company IFCI Limited. However, on pursuing the record, it is observed that number of notices were also issued to Chief Executive Officer and Managing Director of IFCI Limited from 06.11.2012 to 10.02.2014, thus, he also becomes liable for facing present criminal proceedings."
8 Such order dated 22.03.2014 was initially challenged by all the three accused persons i.e. M/s IFCI Ltd., Sh. S.P. Bhatt and Sh. Malay Mukherjee (Current CEO/Managing Director) by filing a Criminal Revision Petition in the Hon'ble High Court of Delhi which came to be registered as Criminal Revision Petition No. 234/2014.
IFCI Ltd & Ors Vs State CR No. 44/2014 Page 3 of 89 My attention has been drawn towards order dated 25.04.2014 passed by Hon'ble High Court of Delhi whereby the concerned representative of the company had been directed to appear before the investigation officer on 26.04.2014 at 2.00PM and to produce all the relevant documents as had been requisitioned by the investigating agency and also on further dates as and when so called by the investigating officer.
10 In terms thereof, S.P. Bhatt had personally appeared in the office of EOW on 26.04.2014 and supplied all such relevant documents. Such fact is not in dispute.
11 Thereafter, such revision petition was taken up by the Hon'ble High Court of Delhi on 16.07.2014 and liberty was granted to revisionists to withdraw the same and to file appropriate proceedings before the Sessions Court.
12 This is how the present Revision Petition has been filed before this court.
13 Sh. Panwar has taken me through the Kalandra and the various notices/documents filed along with Kalandra and has raised several issues which are as under:-
a) Complaint is not by a person authorized u/s 195 Cr.P.C.
b) There is nothing to indicate that the "omission" was intentional and deliberate. According to him, there is a fine distinction between "omission", negligence "omission" and intentional "omission" and there is nothing on record which may show that the act of any of the revisionists was deliberate or intentional.IFCI Ltd & Ors Vs State CR No. 44/2014 Page 4 of 8
c) In view of the specific words used u/s 91 Cr.P.C., 160 Cr.P.C. as well as 195 Cr.P.C., no offence stands revealed and disclosed
d) Last but not the least, there was no material whatsoever to have summoned CEO/MD of the company.
14 Let me first right away evaluate whether there were sufficient grounds to have summoned the Chief Executive Officer/Managing Director of the company.
15 I need not re-emphasize that the Kalandra was never directed against the Chief Executive Officer/Managing Director.
16 Section 175 IPC comes into play only when any person who is legally bound to produce any record before any public servant intentionally omits to do so. In the present context, section 175 IPC has to be read along with section 91 Cr.P.C. and section 160 Cr.P.C.
17 Section 160 Cr.P.C. merely requires the attendance of any witness before the investigating agency for the purposes of proper investigation. Violation of section 160 Cr.P.C. does not fall within the scope and ambit of section 175 IPC. However, non-observance or disobedience of summons issued u/s 91 Cr.P.C. can certainly invite action under section 175 IPC.
18 I have carefully gone through the trial court record. No notice whatsoever u/s 91 Cr. P.C. was ever issued to the concerned CEO/MD. There was no reason or occasion either. As per list of documents, various letters were issued to him. These letters are dated 06.11.2012, 13.12.2012, 11.01.2013, 24.06.2013, 31.12.2013 and 10.02.2014.
IFCI Ltd & Ors Vs State CR No. 44/2014 Page 5 of 819 Interestingly, the present CEO/Managing Director had reportedly joined IFCI Limited in said capacity only on 12.12.2013 and before him, someone else was holding said office. Thus, the earlier four letters were not even meant for the person who has been summoned by the learned trial court.
20 I have seen copies of all such letters and these merely contain a request that the concerned official of the company may be directed to supply the documents for want of which the investigation of the case had been lagging. Naturally, the investigating agency seems fed up with the attitude of alleged non cooperation on the part of Sh. S.P. Bhatt. Sh. Bhatt had been asked on number of occasions to cooperate and various notices u/s 91/160 Cr.P.C. had been issued to him from time to time. Copies of various such notices have been annexed with the Kalandra. These are dated 25.04.2012, 22.06.2012, 18.07.2012, 14.08.2012, 19.10.2012, 10.02.2014, 15.02.2014 and 13.03.2014.
21 Merely, because top brass of IFCI Limited was kept in loop would not mean that he would also become a person legally bound to deliver up any document or record. Being at the helm of affairs of the company, investigating agency thought it appropriate to merely inform him about the lapses and omissions on the part of concerned officials of his company so that he could direct and impress upon such officials to cooperate with them. No inference, even the remotest or wildest one, can be drawn that he too was a person "legally bound to deliver up the record". To that extent, learned trial court fell in error by summoning him for commission of offence u/s 175 IPC. Order to that extent is liable to be set aside. It is set aside accordingly.
IFCI Ltd & Ors Vs State CR No. 44/2014 Page 6 of 822 However, as far as summoning of other two accused persons i.e. Sh. S.P. Bhatt and M/s IFCI Limited is concerned, the issues can be first agitated before the ld. trial court itself. It can always be shown before the ld. trial court that the complaint u/s 195 Cr.P.C. is not by an authorized person and, therefore, the proceedings cannot continue. It is also for the trial court to consider whether it happens to be a case of 'mere omission' resulting due to negligence and carelessness or 'intentional omission'.
23 It is a summons triable case which can be also tried summarily. As per judgment of Bhushan Kumar Vs State (NCT of Delhi) (2012) 5 SCC 424, even at the stage of consideration of notice of accusation u/s 251 Cr.P.C., the court can hear the accused persons and can even discharge the accused. Suffice it to say that in view of aforesaid dictum of Apex Court as given in Bhushan Kumar's case (supra), all these remaining issues be first raised by remaining two revisionists before the trial court and this revisional court would not dwell upon the same lest it may prejudice either side at the time of hearing of arguments for the purposes of accusation u/s 251 Cr.P.C. It is expected that the trial court would hear the rival pleas and would pass a speaking order.
24 Revision Petition stands disposed of accordingly.
25 Before parting, I would hasten to add that since Sh. Bhatt and accused company have already extended full cooperation and since they have assured to do so in future also, a representation has been reportedly made on 14.08.2014 before the concerned authority i.e. DCP, EOW, New Delhi praying for withdrawal of the complaint u/s 195 (2) Cr.P.C. I can only supplement that such authority would decide such request dispassionately IFCI Ltd & Ors Vs State CR No. 44/2014 Page 7 of 8 and fair-mindedly.
26 A copy of this judgment be sent to Ld. Trial Court along with the trial court record and file related to revision petition be consigned to the Record Room.
Announced in the open court (MANOJ JAIN)
On this 20th day of August 2014 ASJ/Special Judge (PC Act) (CBI)
South Distt: Saket Courts: New Delhi
IFCI Ltd & Ors Vs State CR No. 44/2014 Page 8 of 8