Jharkhand High Court
Santosh Kumar Bhuwania And Ors vs The State Of Jharkhand And Anr on 7 December, 2015
Author: Prashant Kumar
Bench: Prashant Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
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W. P. (Cr.) No. 133 of 2015
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1. Santosh Kumar Bhuwania
2. Om Prakash Bhuwania
3. Shakuntala Bhuwania
4. M/s Anirox Pigments Limited . . . Petitioners.
Versus
1. State of Jharkhand
2. Krishna Kumar Dokania @ Kanhaiya. . Respondents.
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CORAM : HON'BLE MR. JUSTICE PRASHANT KUMAR
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For the Petitioners : M/s. R.S.Mazumdar,Sr.Advocate and A.K.Pathak
For the State : Mr. J.Rahman, JC to GP-III
For the Respondent : Mr. Sachin Kumar
Reserved on 17.09.2015 Delivered on 07 /12 /2015
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Prashant Kumar,J. This writ application has been filed for quashing the
First Information Report of Govindpur P.S.case no. 112 of 2015,
corresponding to G. R. no. 1317/2015 registered under sections 420, 406
and 120(B) of the Indian Penal Code.
2. It appears that the complainant/respondent no.2 filed a complaint in
the court of Judicial Magistrate, Dhanbad vide C.P. Case no. 336/2015.
The said complaint case sent to the Govindpur Police Station for
institution of case and investigation under section 156(3) Cr. P.C.
Accordingly, Govindpur P.S. case no. 112/2015 instituted. In the said
complaint petition, respondent no.2 alleged that petitioners are directors
and promoters of M/s Anirox Pigments Limited and they are related to the
complainant ( respondent no.2). It is also stated that petitioner no.1 and 2
are also Directors of M/s Elementies Coke Private Limited. It is alleged
that in the year 2004-05, petitioners invited respondent no.2 and his
father namely,Late Ganesh Ram Dokania in their factory premises for
some important discussions relating to their business. It is stated that in
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response to the aforesaid invitation, respondent no.2 and his father went
to the petitioners' residence at Amaghata, Govindpur, where petitioners
requested respondent no.2 and his father for help in their business, as the
petitioners' company namely, M/s Anirox Pigments Ltd. was facing
serious financial crisis . It is also requested that if respondent no.2 and his
father will invest money in the company, they will earn a handsome profit.
It is further alleged that on the said persuasion, the respondent no.2 and
his father invested crores of rupees in the petitioners' company as
creditor, but the petitioners had shown the above investment as
purchasers of shares. It is further stated that the petitioners appointed the
respondent no.2 and his father as Directors of the Company. However,
within five months respondent no.2 and his father resigned from the
Directorship.
3. It is stated that later on respondent no.2 and his father found that
the Company was facing serious financial crisis, therefore, they asked
the accused/petitioners to return their money. It is stated that in lieu of
said demand, the accused-petitioners had executed three promissory
notes on 27.09.2005, 02.06.2008 and 03.06.2008 in favour of respondent
no.2 and his father for total sum of Rs.22,25,00,000/-. It is stated that
thereafter, accused/petitioners received crores of rupees on many
occasions, but instead of paying a single penny to respondent no.2 and
his father, they only gave assurances to pay back the dues within a short
period.
4. It is further alleged that in the year 2013, accused /petitioners called
respondent no.2 and told him that they have negotiated with IDBI Bank
and the Kotak Mahindra Bank for one time settlement and for that
purpose they need ₨. 50,00,000/- so that the same can be deposited with
the IDBI Bank and Kotak Mahindra Bank. It is alleged that
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accused/petitioners assured that if the said amount will be deposited in
the I.D.B.I. Bank, there will be no impediment in selling the company
namely, M/s Anirox Pigments Ltd. It is stated that on the aforesaid
request and inducement, the complainant gave two demand drafts of Rs.
50,00,000/- to the petitioners and the said demand drafts deposited in the
respective banks. It is stated that after deposit of said demand draft, the
IDBI Bank instructed the petitioners to arrange a meeting with the
creditors of M/s Anirox Pigments Ltd. for one time settlement. But the
accused/petitioners fraudulently and intentionally ignored the aforesaid
instruction of the bank, due to which complainant had suffered wrongful
loss of Rs. 50,00,000/- in addition to what was earlier given to the
accused/ petitioners. It is then alleged that thereafter, respondent no.2
requested the accused /petitioners to refund the amount, whereupon the
accused petitioners had executed a "Memorandum of Understanding"
and an "Authority Letter" in favour of respondent no.2 for search of
proposed investor/buyers for M/s Anirox Pigments Ltd. It is alleged that
while executing the aforesaid memorandum, the accused/petitioners
assured respondent no.2 that after disposal of M/s Anirox Pigments Ltd.
all the amount obtained from the respondent no.2 and his father will be
returned along with 10% commission of total sale consideration. It is
stated that on 04.04.2014 accused-petitioners executed a registered
Power of Attorney in favour of complainant for finalization of
investor/buyers for the aforesaid M/s Anirox Pigments Ltd. It is stated that
on 09.01.2015, the complainant-respondent no.2 came to know from the
newspaper notice published in Prabhat Khabar that the accused persons
had revoked the Power of Attorney vide registered deed dated 05.01.2015
on false and frivolous ground. It is stated that thereafter, respondent no.2
along with his friend approached the accused for refund of their money. At
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that time, accused -petitioners had threatened him to finish his life. It is
stated that the accused/petitioners had acknowledged in writing that a
sum of Rs. 46,00,00,000/- is payable to the respondent no.2. Accordingly,
the present case has been filed.
5. Sri R.S.Mazumdar, learned senior counsel appearing for the
petitioners, submits that even if the allegation narrated in the F.I.R. are
taken to be true, then also no offence, under sections 420 and 406 of the
Indian Penal Code, made out. It is submitted that this is a pure and simple
case of money lending and for recovery of which a civil suit is
maintainable and the petitioners cannot be held criminally liable for the
same. Sri Mazumdar further submits that from the various documents
attached with the complaint petition, it is clear that respondent no.2 and
his father had invested in the Company as a share holder. They were
appointed as Directors of the Company. But later on, they resigned due
to some personal reason. Thus, claim of respondent no.2 that they gave
money as creditors to the petitioners is not correct. It is further submitted
that from Annexure-4 to the writ application, it is clear that IDBI Bank had
removed the 'Lien' mark standing in the name of father of respondent
no.2 with a view to facilitate him to withdraw Rs.50,00,000/- deposited by
them. Under the said circumstance, the allegation of respondent no.2 that
he has further suffered a loss ofRs. 50,00,000/- is incorrect. It is further
submitted that in the Power of Attorney, there is a stipulation that
respondent no.2 has no power to transfer the property and the Power of
Attorney shall be revokable, if the respondent no.2 wishes so. It is
submitted that complainant with a view to mislead the court had quoted
only half portion of the above Clause of the Power of Attorney and stated
that the said Power Attorney has been revoked without the consent of
respondent no.2. It is submitted that in fact, respondent no.2 was trying to
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sold the entire property of the company, therefore, as
per Clause 5 of the Power of Attorney petitioners revoked the same. Thus,
by doing so they have not cheated respondent no.2. It is submitted that
from the facts and circumstances of this case, no offence under sections
420, 406 read with section 120(B) of the Indian Penal Code made out.
6. On the other hand, Mr. Sachin Kumar, appearing for the respondent
no.2 submits that from the first instance, accused-petitioners had intention
to cheat respondent no.2 and his father. It is submitted that with above
intention they persuaded respondent no.2 and his father for investing
crores of rupees in the petitioners' company. It is submitted that
petitioners persuaded that after receiving the aforesaid money, they will
pay the dues of the respondent no.2 and further pay 10% commission ,
but the petitioners had no such intention to sale the company, therefore,
they had revoked the Power of Attorney. Accordingly, Sri Kumar submits
that offence under sections 420/406 of the Indian Penal Code made out.
Sri Kumar further submits that it is well settled that if from the same sets
of facts both the criminal liability as well as civil liability made out, then
both types of cases maintainable. He further submits that from the
allegation made in the FIR, criminal case is also made out, therefore, the
present writ application is liable to be dismissed.
7. Having heard the submissions, I have gone through the records of
the case.
8. From perusal of documents attached with the complaint petition,
which was brought on record through supplementary affidavit, I find that in
fact respondent no.2 had shown its interest for making investment in the
company namely, M/s Anirox Pigments Ltd. for its rehabilitation. One of
such letter is attached with the supplementary affidavit. It further appears
from Annexure-2 to the writ application that respondent no.2 was
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appointed as one of the Director of M/s Elements Coke Private Limited
and from the that post he resigned due to some personal reason.
Annexure-4 to the writ application shows that 50 lakhs rupees deposited
by M/s Ganesh Ram Dokania was released by the I.D.B.I. Bank by
removing the 'Lien' mark of its current account. It further appears from the
promissory notes, the photocopy of the same annexed with the
supplementary affidavit, that petitioner acknowledged that they have
taken loan from M/s Ganesh Ram Dokania and Krishna Kumar Dokania
on different dates and they have promised to return the same with 14.50%
interest. Under the aforesaid circumstance, I find that petitioners have not
taken any amount from respondent no.2 and/or and his father by making
any misrepresentation of fact. Even in the Memorandum of
Understanding , which has been annexed with the supplementary
affidavit, it is clearly mentioned that petitioners had informed respondent
no.2 regarding the condition of the company and had requested
respondent no.2 to search a suitable investor for reviving the said
company. Thus, it prima facfie appears that petitioner had not concealed
any fact from respondent no.2 and/or his father. This fact is also
mentioned in the Power of Attorney. It is worth mentioning that at Clause
5 of the Power of Attorney, reads as follows :-
"The party of the second part shall have no power to
transfer the property and the Power of Attorney shall
be revocable at any time if the party of the Second
Party wishes so."
9. Thus, from perusal of aforesaid stipulation, it is clear that if second
party of the Power of Attorney ( respondent no.2) will take any step for
transfer of property then in that event, the power of attorney shall be
revocable. From perusal of Annexure-3, it appears that respondent no.2
had negotiated with different persons, which goes against the interest of
the company, therefore, petitioners have cancelled Power of Attorney.
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Thus, prima facie it appears that Power of Attorney has been revoked as
per terms and conditions mentioned in Clause 5 of the power of attorney.
10. In view of the aforesaid facts and circumstances, narrated herein
above, I find that there is no ingredient of cheating and/or criminal
breach of trust available in the F.I.R. I also do not find any ingredient of
criminal conspiracy. Thus, I conclude that no offence under sections
420/406/120(B) of the Indian Penal Code made.
11. In view of the discussions made above, I allow this writ application and quash the First Information Report of Govindpur P.S. case no. 112 of 2015, corresponding to G. R. no. 1317/2015 pending in the court of Judicial Magistrate,Dhanbad.
Sd/-
( Prashant Kumar, J. ) Raman/