Delhi District Court
Abhishek Agrawalla vs Boortmalt N.V on 20 July, 2024
IN THE COURT OF SH. LOVLEEN, ADDITIONAL SESSIONS
JUDGE-03, SAKET COURTS, NEW DELHI
Crl. Rev. No. 261/2020
CNR No. DLSE010037232020
ABHISHEK AGRAWALLA
S/O LATE SHRI B.P. AGRAWALLA
R/O A-26, SECTOR-50
NOIDA, U.P. 201301
.....Revisionist
Versus
1. BOORTMALT N.V.
HAVING ITS REGISTERED ADDRESS AT:
ZANDVOORT 2- HAVEN 350, 2020 ANTWERP,
BELGIUM
2. BOORTMALT INDIA HOLDINGS PVT LTD.
REGISTERED ADDRESS:
B-92, 9th FLOOR, 23, KASTURBA GANDHI MARG,
HIMALAYA HOUSE, NEW DELHI-110001.
...Respondents
Date of institution : 17.10.2020
Date of reserving the order : 09.01.2024
Date of pronouncement : 20.07.2024
Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 1/28
JUDGMENT
1. This is a revision petition under section 397 Cr.PC preferred against the orders dated 13.08.2019 and 27.01.2020, passed by the Metropolitan Magistrate-02, South-East District, Delhi in compliant case no. 613318/2016 titled as Boortmalt N.V Vs Abhishek Aggarwala & Ors. The said complaint was filed by the respondents herein against the revisionist and others u/s 200 Cr.PC for the commission of offences punishable u/s 420/467/468/471/409/201/120-B IPC.
GROUNDS
2. The grounds cited by the revisionist against the impugned orders are as under :
I. For that the Ld. Metropolitan Magistrate has failed to appreciate that Moga Chemicals Pvt. Ltd. was never owned or controlled by the Petitioner or by any of his subsidiary Companies.
II. For that the Ld. Metropolitan Magistrate has failed to appreciate that the Respondents/Complainant had totally and solely relied upon a purported report of M/s. Grant Thornton (Exb.CW1/M), which is absolutely no document in the eyes of law and cannot be taken into consideration or cognizance inasmuch as the document itself states on each and every page:
"Draft report on review of Agya Boortmal Private Limited".
III. For that the Ld. Metropolitan Magistrate should have appreciated that the entire case, allegation and Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 2/28 contention of the Respondents/Complainant in the complaint case is based upon on the said Draft Report and in fact is reproduction of the statements from the said Draft Report.
IV. For that the Ld. Metropolitan Magistrate failed to appreciate the said purported report also states as under:
"We have indicated within our report the sources of information. We have not sought to establish the reliability of these sources."
V. For that the Ld. Metropolitan Magistrate failed to appreciate the said purported report also states as under:
"Our work did not constitute an audit, and the scope of our work was significantly different from that of an audit and cannot therefore be relied upon to provide the same level of assurance as an audit."
VI. For that the Ld. Metropolitan Magistrate failed to appreciate the said purported report also states as under:
"Our reports and comments are confidential in nature and not intended for general circulation or publication, nor are they to be quoted or referred to in whole or in part, without our prior consent in each specific instance. Such consent shall not be unreasonably withheld. Boortmalt Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 3/28 NV shall have the authority or ability to modify our findings in any manner. We disclaim all responsibility or liability for any costs, damages, losses, liabilities, expenses incurred by anyone as a result of circulation, publication, reproduction or use of our reports contrary to the provisions of this paragraph. Should additional information or documentation become available which impacts upon conclusions reached in our reports, we reserve the right to amend our findings and reporting accordingly. Further, comments in our reports are not intended, nor should they be interpreted to be legal advice or opinion."
VII. For that the Ld. Metropolitan Magistrate should have appreciated that in the light of the said statements contained in the said purported Draft Report no cognizance could have been taken nor any charges could have been framed against the petitioner. VIII. For that the Ld. Metropolitan Magistrate should have appreciated that the author of the said report, namely Mr. Anil Kumar Roy on 26/11/2015 in his cross has clearly admitted as under:
"I am not a chartered accountant. I do not have any degree of chartered accountancy. I am currently out on bail in a matter pending in the court of Gautambudh Nagar, Noida. The case Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 4/28 pending against me in the court of Gautambudh Nagar, Nodia is for the offences of forgery, conspiracy, cheating and various other offences under IPC which I do not remember. The case pending in Gautambudh Nagar, Noida is a State case wherein FIR was registered against me. I suppose that a charge sheet has been filed in the said case, in the said case while moving my bail application it was mentioned in the bail application that I am a chartered accountant."
IX. For that the Ld. Metropolitan Magistrate should have appreciated that the author of the said report, namely Mr. Anil Kumar Roy on 26/11/2015 in his cross has clearly admitted as under:
"I am aware of the fact that institute of chartered accountants has filed a case against me. I am not aware that whether the case pending against me filed by the institute of chartered accountants in a civil case or a criminal case. I have at no point of time appeared in the said case. My lawyer Mr. K.K. Singh practicing in Noida informed me about the pendency of the said case. I do not have the copy of the case filed against me by Institute of Chartered Accountants. My lawyer Mr. K.K. Singh must have the copy of the same. I can get the copy of the said case from my lawyer. The witness is called upon to produce Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 5/28 the copy of the case pending against him in the Noida Court filed by the Institute of Chartered Accountants. "
X. For that the Ld. Metropolitan Magistrate should have appreciated that the author of the said report, namely Mr. Anil Kumar Roy on 18/05/2016 in his cross has clearly admitted as under:
"It is correct that on the day, I undertook and finished the work as per Ex. CW1/M, the land at Mahua Kheraganj, Kashipur, Uttarakhand was a notified industrial land. I was shown a letter by accused no. 1 that the land in question was Notified Industrial Land."
XI. For that the Ld. Metropolitan Magistrate should have appreciated that the author of the said report, namely Mr. Anil Kumar Roy on 18/05/2016 in his cross has clearly admitted as under:
"I did not call for any information regarding the land in question from the Complainant No. 1. It is correct to suggest that for the entire period the work undertaken by me and on the day of submission of my report M/s. Agya Boortmalt was in possession of the entire 18.22 acres."
XII. For that the Ld. Metropolitan Magistrate should have appreciated that the author of the said report, namely Mr. Anil Kumar Roy on 18/05/2016 has clearly admitted as under:
Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 6/28 "My team members had visited the land at Kashipur, where the construction was going on and they were informed that the entire 18.22 acres was in the possession of Agya Boortmalt." XIII. For that the Ld. Metropolitan Magistrate should have appreciated that the author of the said report, namely Mr. Anil Kumar Roy on 22/10/2016 has clearly admitted as under:
"In my report I have not indicted any person."
XIV. For that the Ld. Metropolitan Magistrate should have appreciated that the author of the said report, namely Mr. Anil Kumar Roy on 21/12/2016 has clearly admitted as under:
"During the conducting my review, I became aware of the fact that the land in question was a notified land and accused no. 1 had informed me that he had applied for conversion of land to industrial."
XV. For that the Ld. Metropolitan Magistrate has failed to appreciate that the said witness CW-2, namely, Mr. Anil Kumar Roy has totally contradicted himself in his evidence.
XVI. For that the Ld. Metropolitan Magistrate has failed to appreciate that from the evidence recorded in cross- examination of CW-2 Mr. Anil Kumar Roy, the Complainant has miserably failed to establish any case whatsoever for framing of charges against the Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 7/28 Petitioner.
XVII. For that the Ld. Metropolitan Magistrate has completely erred in not appreciating that in the facts of the case and particularly the evidence of CW-2 Mr. Anil Kumar Roy the complainant's case deserves to be dismissed without framing of any charges whatsoever.
XVIII. For that the Ld. Metropolitan Magistrate has erred by stating that the petitioner had substantial interest in Moga Chemical Pvt. Ltd. and has failed to appreciate that the Petitioner, Agya Estates Pvt. Ltd., Rudra Enterprises Pvt. Ltd. and Moga Chemical Pvt. Ltd. had a common Chartered Accountant, namely, Mr. Dinesh Gupta, who had mistakenly filed Annual Returns before ROC showing Agya Estates Private Ltd. As shareholder of Glaxy Poles Pvt. Ltd. There was no shareholding directly or indirectly held by the Petitioner or any of his Companies in the Glaxy Poles Pvt. Ltd. or Moga Chemicals Pvt. Ltd.
XIX. For that the Ld. Metropolitan Magistrate failed to appreciate that the said Chartered Accountant Mr. Dinesh Gupta upon realizing the said mistake had filed the corrected Annual Return in the office of the ROC, New Delhi, rectifying the earlier Return and it was clearly stated that neither Agya Estates Pvt. Ltd. nor the Petitioner was holding any shareholding Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 8/28 whatsoever in Glaxy Poles Pvt. Ltd.
XX. For that the Ld. Metropolitan Magistrate has failed to appreciate that there was no case made out whatsoever to frame charges as against the petitioner and the complaint deserves to be dismissed and rejected.
XXI. For that the Ld. Metropolitan Magistrate has failed to appreciate that the Petitioner was never holding any kind of interest in Moga Chemical Pvt. Ltd. and neither had at any point of time concealed any such facts from the Respondent No.1 which was necessary during the purchase of the said Kashipur land.
XXII. For that the Ld. Metropolitan Magistrate has failed to appreciate that the Petitioner had always acted as per the instructions of Respondent No. 1 and all the dealings that had taken place for the purchase of the land was with knowledge and consent of Respondent No. 1 and its counsel/representative l.e. M/s. Singhania & Partners.
XXIII. For that the Ld. Metropolitan Magistrate has failed to appreciate that the Respondent No. 1 as well as its representatives/advocates had given the permission to the petitioner to purchase the land. XXIV. For that the Ld. Metropolitan Magistrate has failed to appreciate that both the partners in the Joint Venture had invested an equal sum of money Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 9/28 and so the issue of taking advantage of the subscription price paid to ABPL by AHPL for the issue of shares and further obtaining the repayment from ABPL towards the advance paid for purchase of the said land with malafide intention does not arise as both the Joint Venture partners have equally invested their respective shares and no issue of cheating can be made out from the above.
XXV. For that the Ld. Metropolitan Magistrate had failed to appreciate that in view of the consent and approval given by the Respondent No. 1 and its representatives/advocates for the purchase of the land there was no intention on the part of the petitioner to cheat or dishonestly induce the Respondent No. 1 to part of with the money.
XXVI. For that the Ld. Metropolitan Magistrate has mechanically proceeded to frame charges against the Petitioner whereas the ingredients of committing of any offence by the petitioner are totally missing and absent in the present case. There is no mensrea in the case.
XXVII. For that the Ld. Metropolitan Magistrate has misconstrued the legal position and proposition in coming to conclusion of framing of charges against the Petitioner.
XXVIII. For that the Ld. Metropolitan Magistrate has failed to understand that the Respondents have Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 10/28 throughout suppressed various material facts and have mislead the court and have not revealed/placed all the facts and documents relating to the case before the court. The petitioner submits that the respondents have been successful in their ill and deceitful motive of harassing and torturing the petitioner/accused and getting the order from the court below by suppression of important and vital facts.
XXIX. For that the Ld. Metropolitan Magistrate failed to appreciate that as disputes arose between the petitioner/accused and the respondents, the petitioner had filed a petition before the Company Law Board on dated 19.09.2008 being C.P. No. 58 (ND) of 2008 in which the respondents are parties.
XXX. The said Company Petition being C.P. No. 58(ND) of 2008 is still pending adjudication before the National Company Law Tribunal, New Delhi (earlier known as Company Law Board).
XXXI. For that the Ld. Metropolitan Magistrate respondents failed to appreciate that before filing the complaint case, had also filed a petition before the Company Law Board in or about the fourth week of September 2008 being C.P. No. 63 (ND) of 2008 on the self same cause of action and had also filed an application before the Company Law Board, New Delhi for criminal investigation. Having failed to obtain any order in the said proceedings before the Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 11/28 Company Law Board the respondents filed the complaint case.
XXXII. For that the Ld. Metropolitan Magistrate failed to appreciate that subject matter of the present complaint filed by the Complainant is ditto and word to word reproduction of the said Company Petition filed by the Complainant before the Company Law Board (now known as National Company Law Board). Having failed to obtain any favourable order in their favour the Complainant chose to file the Criminal Complaint Petition as a pressure tactics. XXXIII. For that the Ld. Metropolitan Magistrate failed to appreciate that two proceedings pending in the National Company Law Board, New Delhi, are on the same issues between the same parties. In the proceedings before the National Company Law Board various orders have been passed from time to time and particularly the orders dated 31/8/2009 and 10/09/2009 wherein the respondent no. 1 & 2 (complainants) have given their consent to the valuation of the land and the shares by an independent valuer with a view to explore the possibility of resolving the disputes amicably as recorded in the order.
XXXIV. For that the Ld. Metropolitan Magistrate has failed to appreciate that if there was any criminality involved in the facts of the present case, the Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 12/28 Respondents could not have been agreed to the passing of the above mentioned orders by the Company Law Board (now N.C.L.T.).
XXXV. For that the Ld. Metropolitan Magistrate has failed to appreciate that the said orders of the Company Law Board dated 31/08/2009 and 10/09/2009 were passed almost after one year of the lodging of the complaint by the Complainant. Accordingly, it is submitted that the motive of the Respondent is clear that the complaint was filed with wrongful intention of extracting money from the Petitioner by arm twisting method.
XXXVI. For that the Ld. Metropolitan Magistrate has clearly failed to appreciate and has completely overlooked the very fact that the complaint of the Complainant regarding the purchase of land and making payment of money was done absolutely as per the opinion, advice, due diligence and approval given by the advocates for the Respondent, namely, Mr. Ravi Singhania and Mr. Deeak Rao, both senior partners of M/s. Singhania & Partners, Solicitor Firm. The said advocates and the Solicitor Firm are still the counsel on record of the Complainant before the Ld. Metropolitan Magistrate and they have been prosecuting the case on behalf of the Complainant. XXXVII. For that the Ld. Metropolitan Magistrate has failed to appreciate various e-mails exchanged Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 13/28 between the parties as well as due diligence and go ahead given by M/s. Singhania & Partners are on record and have been referred and brought to the notice of the Ld. Metropolitan Magistrate. XXXVIII. For that the Ld. Metropolitan Magistrate has mechanically and for the sake of the formality proceeded to frame charges against the petitioner. XXXIX. For that the Ld. Metropolitan Magistrate has proceeded on the basis of vague allegations and contentions that the Petitioner had substantial interest in Moga Chemicals Pvt. Ltd., which was seller of the land to the J.V. Company, Agya Boortmalt Pvt. Ltd. XL. For that the Ld. Metropolitan Magistrate has gone totally against the statutory record of the Registrar of Companies which clearly shows otherwise and neither the petitioner nor any of its Companies or associates own or have any interest in Moga Chemicals Pvt. Ltd. The Ld. Metropolitan Magistrate has also failed to appreciate and has proceeded on the basis of a sum of Rs.15 Crore was transferred in favour of the Petitioner's Company Agya Holdings Pvt. Ltd. and accordingly an offence was made out.
XLI. For that the Ld. Metropolitan Magistrate has itself noted in its order dated 13/08/2019 that it was the petitioner and his Company Agya Holdings Pvt. Ltd. which had offered to pay the said sum of Rs. 15 Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 14/28 Crore as advance out of their own funds for the purchase of land and the same was duly conveyed to the Complainant and the Complainant by e- mail and in writing had agreed and requested the Petitioner and his Company Agya Holdings Pvt. Ltd. To proceed to give the said advance to the seller of the land. The Complainant had also in writing agreed to pay interest on the said amount to the Petitioner's Company, Agya Holdings Pvt. Ltd.
XLII. For that the Ld. Metropolitan Magistrate has proceeded on a totally wrong notion and incorrect & false allegations levied by the Complainant regarding the Petitioner having any control or interest in Moga Chemicals Pvt. Ltd.
XLIII. For that the Ld. Metropolitan Magistrate has gone wrong and erred in stating and holding that the advance payment of Rs.15 Crore was not made by Agya Holdings Pvt. Ltd. to the seller of the land inasmuch as it is an admitted fact the entire land of 18.20 Acres has been given to the J.V. Company, Agya Boortmalt Pvt. Ltd. and is under the control and custody of the said J.V. Company.
XLIV. For that the finding of the Ld. Metropolitan Magistrate that the advance payment was a fake payment is absolutely erroneous and incorrect. XLV. For that the Ld. Metropolitan Magistrate has clearly overlooked the said important, vital and Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 15/28 substantial facts which are neither hearsay nor allegation in the air but is duly supported by the documents in writing and which are on record before the Ld. Metropolitan Magistrate.
XLVI.For that the Ld. Metropolitan Magistrate has failed to appreciate that there is no criminal offence committed by the petitioner/accused and the dispute is purely civil and commercial in nature. The Ld. Metropolitan Magistrate has failed to appreciate the law laid down by the Hon'ble Supreme Court in "Indian Oil Corporation V/s NEPC India Ltd., AIR 2006 SC 2780 wherein the Hon'ble Supreme Court has held that the tendency to convert the exclusively civil disputes into criminal ones is liable to be deprecated".
XLVII. For that the Ld. Metropolitan Magistrate has failed to appreciate that the petitioner had made the advance payment on the instructions of Respondent No. 1 and further the Respondent No. 1 was well aware of the interest amount that stood liable to be paid towards the said advance payment to AHPL. XLVIII. For that the Ld. Metropolitan Magistrate failed to appreciate the law laid down by the Hon'ble Supreme Court in (2006) to SCC (Crl.) 430, Murari Lal Gupta V/s Gopi Singh; wherein the Hon'ble Supreme Court has held that, "In absence of any averments in the complaint so as to infer fraudulent Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 16/28 and dishonest inducement having being made by the petitioner, pursuant to which the respondent parted with his money, it cannot be said that the petitioner had cheated the respondent."
XLIX. For that the Ld. Metropolitan Magistrate failed to appreciate that the ingredients of the offences U/s 420 I.P.C. are conspicuously lacking in the complaint case and even prima facie on the averments made in the complaint no offence u/s 420 I.P.C. is made out.
L. For that the Ld. Metropolitan Magistrate failed to appreciate that the land was purchased with the consent of the respondent No. 1 and was also approved by its representatives/advocates namely, M/s. Singhania & Partners.
LI. For that the Ld. Metropolitan Magistrate has failed to appreciate that the land was purchased in the name and style of the Joint Venture Company, I.e. M/s. Agya Boortmalt Pvt. Ltd. and the land still stands in the name of the said Company.
LII. For that the Ld. Metropolitan Magistrate has failed to appreciate that M/s. Grant Thornton, who had conducted the investigation had itself in its report stated that, "We have not sought to establish the reliability of these sources." "Our work did not constitute an audit, and the scope of our work was Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 17/28 significantly different that off an audit and cannot therefore be relied upon to provide the same level of assurance as an audit."
LIII. For that as the Ld. Metropolitan Magistrate has failed to appreciate that the Petitioner had throughout acted as per the instructions of the Respondent No. 1 and its representative/Advocates and further the respondents have suppressed various vital and important facts and have mislead the court. LIV. For that the respondents had suppressed from the court below that respondent No. 1 had initiated proceedings before the Company Law Board and the said petition was filed by the Respondent No. 1 prior to filing of the complaint case.
LV. For that the respondents had suppressed from the court below that in the proceedings before the Company Law Board the Respondent No. 1 has consented towards the valuation of the said land and on the consent given by the respondent no.1 a consent order for valuation of the said land has been passed by Company Law Board.
LVI. For that the respondents had suppressed from the court below that the Federal Bank for granting the loan had itself got the valuation of the land done and have valued the same for Rs. 24 crores.
LVII. For that the respondents had suppressed from the court below that the petitioner had given his Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 18/28 personal guarantee for the loan taken from Federal Bank.
LVIII. For that the respondents had suppressed from the court below that the land stands mortgaged with the Federal Bank.
LIX. For that the respondent No. 1 & 2 are guilty of misleading the court and obtaining orders on false grounds and as a result of the suppression of the important and vital facts by the respondents the same has resulted in the undue harassment of the petitioner. LX. For that the Ld. Metropolitan Magistrate had failed to appreciate that the petitioner has not deceived the respondent No. 1 to deliver or part of with the money for any of its unlawful enrichment. LXI. For that the Ld. Metropolitan Magistrate failed to appreciate that the intention of the respondents is only to harass the petitioner and they have filed the complaint with a malafide intention.
LXII. For that the complaint case filed by the respondents is false, bad in law, not maintainable and is liable to be dismissed.
LXIII. For that the findings of the Ld. Metropolitan Magistrate are bad in law and on facts and is liable to be revised and set aside.
3. A prayer has been made to set aside the impugned orders Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 19/28 dated 13.08.2019 and 27.01.2020.
4. The prayer has been vehemently opposed by the respondents. It is argued on behalf of the respondents that the revisionist has been correctly charged u/s 420/34 IPC vide the impugned orders. In support of their submissions, a convenience compilation and a compilation of following judgments have been placed on record:-
Bhawna Bai vs Ghanshyam & Ors (2020) 2 SCC 217, Sunil Mehta vs State of Gujarat (2013) 9 SCC 209, Iqbal Singh Marwah vs Meenakshi Marwah (2005) 4 SCC 370, Amit Kapoor vs Ramesh Chander and Ors. (2012) 9 SCC 460, Sanjaysinh Ramroa Chavan vs Dattatray Gulabrao Phalke (2015) 3 SCC 123, Yalla Ram Naresh Naidu vs Yallu Rama Tulasi 2015 (1) ALD (Crl.) 281 (AP), P Swaroopa Rani vs M. Hari Narayana (2008) 5 SCC 765.
DISCUSSION
5. This court has considered the records as well as the submissions made by the parties.
Law On Framing Of Charge And Discharge
6. Before delving into the merits of the case, it would be appropriate to refer to the settled law on framing of charge, since the essence of the arguments raised on behalf of revisionist is that the no charge could have been framed against him.
7. Recently, the Hon'ble Delhi High Court in the case of Varun Bhatia vs. State and Another 2023 SCC OnLine Del 5288, has discussed Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 20/28 the different facets of the law in this regard in the following fashion :-
".................................................................................. ................................................................................... "10.The law on charge is contained under Sections 227 and 228 of Cr. P.C. for offences triable in Courts of Session and in cases of Trial of Warrant Cases by Magistrates instituted upon a police report, Sections 239 and 240 of Cr.P.C. deals with the same. For reference, Section 239 and 240 of Cr. P.C. are extracted as under:
239. When accused shall be discharged.--
If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.
240. Framing of charge.--
(1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried"
11. The Hon'ble Supreme Court in case of Sajjan Kumar v. CBI, (2010) 9 SCC 368 has considered the powers of Courts in respect of the framing of charge and discharge and the fact that a prima facie case would depend on the facts and circumstances of each case. The relevant principles as enunciated in the said decision read as under:
"21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges under Section 227 Cr. P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie cases would depend Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 21/28 upon the facts of each case.
(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.
(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal..."
(Emphasis supplied)
12.The Hon'ble Apex Court in the case of Ghulam Hassan Beigh v. Mohd. Maqbool Magrey, (2022) 12 SCC 657, after discussing several judicial precedents, has summed up the law regarding framing of Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 22/28 charge as under:
"27. Thus from the aforesaid, it is evident that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law. However, the material which is required to be evaluated by the Court at the time of framing charge should be the material which is produced and relied upon by the prosecution. The sifting of such material is not to be so meticulous as would render the exercise a mini trial to find out the guilt or otherwise of the accused. All that is required at this stage is that the Court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. Even a strong suspicion would suffice..."
(Emphasis supplied)
13. Thus, the fundamental basis for forming an opinion regarding the framing of charges revolves around determining whether there is adequate evidence on record to establish, prima facie, the commission of an offence. A 'prima facie' case would imply that there must be enough material or evidence that, when viewed at its face value, gives rise to a reasonable suspicion that the accused may have committed the alleged offence.
14. Another important factor to be considered is the sufficiency of material on record. The Courts have to see as to whether the material placed on record is sufficient enough to establish a prima facie case against an accused and justify initiation of trial against an accused.
................................................................................. ................................................................................."
FACTUAL BACKGROUND
8. The brief facts of the complaint filed by the respondents against the revisionist and others have been correctly noted by the Ld. Magistrate in the impugned order dated 13.08.2019. The same are reproduced below for ready reference:-
Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 23/28 "In brief facts of the case as per the complaint are that complainant no. 1 namely Boortmalt N.V. and complainant no. 2 Boortmalt India Holdings Pvt. Ltd. are registered companies. It is stated by the complainant in his complaint that accused no. 1 to 3 approached the complainant company in July 2007 to setup a joint venture, to carry on a business of manufacturing and dealing in malts, malt extracts and malt preparation in India.
It is further stated that accused persons represented themselves to be director in Agya Holding Pvt. Ltd. (AHPL) and further represented that they have substantial control over the said company. Believing upon the assurance of the accused persons, complainant agreed to form a joint venture by name of Agya Boortmalt Pvt. Ltd. (ABPL) with equal equity participation. It is further stated that complainant company entered into a joint venture and share holding agreement with Agya Holdings Pvt. Ltd. (AHPL) and said agreement was signed by accused no. 1 and 2. It is further stated that as per the joint venture agreement, the joint venture i.e. ABPL was required to purchase 5 to 6 hectares of land in State of Uttranchal, Kashipur for the purpose of setting of malting plant. It is further stated that accused no. 1 to 3 represent the complainant that they had necessary resources to obtain the land from Uttranchal government at concessional rates and further that they had identified the land and complainant should urgently send the money. It is further stated that since joint venture company was not formed at that time and money could not have been transferred by the complainant, accused no. 1 offered to pay complainant's share of advance for the land from his own funds. It is further stated that accused no. 1 represented that he had identified a land admeasuring 18.20 acres owned by Moga Chemicals Pvt. Ltd. (MCPL). It is further stated that the accused no. 1 to 3 did not disclose the fact to the complainant that they have substantial interest in Moga Chemicals Pvt. Ltd. and same fact came into the knowledge of the complainant only when the independent review was conducted by M/s Grant Thourton, Forensic Investigation Services at the instance of complainant. It is further stated that it was learnt that Moga Chemical Pvt. Ltd. had purchased the said land in the year 2008 at an average price of Rs. 32 lacs per acre and dishonestly sold the same land to ABPL at a price of Rs. 133 lacs per acre thereby causing a loss of Rs. 1 crore per acre Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 24/28 to ABPL. It is further stated that although land ad-measuring 18.20 acres was to be purchased, however till date only 16.20 acres of land has been shown to be registered in the name of ABPL and balance of 2.02 acres continues to be in the name of Moga Chemicals Pvt. Ltd. It is further stated that as soon as joint venture company ABPL was incorporated, the accused no. 1 to 3 insisted on payment of the complainant contribution towards the purchase of land by ABPL and upon their inducement complainant made a first contribution for a sum of Rs. 1,46,250,000/- on 24.01.2008, however at that time the accused person did not disclose their relationship with Moga Chemicals Pvt. Ltd. It is further stated that it was learnt that the alleged advance payment made to Moga Chemical Pvt. Ltd. (MCPL) was transferred to another closely controlled company of accused no. 1 to 3 namely Agya Estate Pvt. Ltd. (AEPL) who had transferred the said amount to Agya Holdings Pvt. Ltd. (AHPL). It is further stated that accused persons in connivance with each other with fraudulent and dishonest intention from very beginning induce the complainant to enter into joint venture and thereby sold a land to joint venture at a much higher price through a company closely held by the accused themselves, without disclosing the said fact to complainant and thereby caused wrongful loss to the complainant and wrongful gain to themselves.
9. In order to substantiate the said allegations the respondents examined 4 witnesses, all of whom were subjected to cross examination on behalf of the revisionist.
10. A bare perusal of the impugned order dated 13.08.2019 reflects that there is no dispute about the fact that at the relevant time the revisionist and some others entered into a joint venture agreement with the respondents to open a company namely Agya Boortmalt Pvt. Ltd (ABPL); that a parcel of land was purchased from Moga Chemical Pvt. Ltd (MCPL) by the revisionist and others for ABPL; that a sum of Rs. 14,62,50,000/- was transferred by the Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 25/28 respondents to ABPL, out of which a sum of Rs. 11,73,00,000/- was transferred to MCPL, towards purchase of said land; that a sum of Rs. 15 crore was transferred from ABPL to Agya Holding Pvt. Ltd (AHPL) for the amount of advance given by AHPL to MCPL for purchase of land and that a sum of Rs. 55,63,356/- was paid by ABPL to AHPL as interest in respect of the said advance of Rs. 15 Crore. The Ld. Trial Court has noted that the revisionist, one Basudev Prasad Agarwal and one Amritash Agarwal, all of whom are Directors of AHPL, were holding a substantial interest in MCPL at the time of purchase of said parcel of land at Kashipur. Ld Trial Court has relied upon the ROC records pertaining to MCPL, Galaxy Poles Pvt Ltd, Atchyut Enterprises Pvt Ltd, Rudra Enterprises Pvt Ltd and Agya Estate Pvt Ltd in order to hold so.
10. The Ld. Trial Court further noted in the impugned order dated 13.08.2019 that the parcel of land referred to above was purchased by MCPL for a sum of Rs. 5,19,73,745/- in January/ February 2008 but the same was sold by MCPL to ABPL in July 2008 for a sum of Rs. 26,73,00,000/-. As such, MCPL made a profit of more than Rs. 19 Crore by selling the said parcel of land to ABPL. At that time, the revisionist failed to declare / disclose to the respondents that he was holding a substantial interest in MCPL. That apart, the revisionist, who was a Director in AHPL, also took a refund of Rs. 15 Crore from ABPL which was shown as an advance made by AHPL to MCPL for the purchase of said parcel of land before being transferred to ABPL. ABPL also paid interest to the tune of Rs. 55 lakhs approximately in respect of the said advance. The Ld. Trial Court felt that the said transaction of Rs. 15 Crore was a 'Circular Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 26/28 transaction of money'. It appears that the Ld. Trial Court wanted to observe/ convey that the same was a sham transaction. Thereafter, the Ld. Trial Court proceeded to hold that the revisionist and one other person were liable to be charge u/s 420 IPC.
11. Firstly, the revisionist endeavors to challenge the impugned order on the basis of 'disclaimers' given by M/s Grant Thornton in its report Ex. CW1/M as well as the 'antecedents' of the person who authored the said report. In the considered opinion of this Court, the said objection does not lie here as the Ld. Trial Court has not at all relied upon the said report in the impugned order dated 13.08.2019. Rather the Ld. Trial Court has relied upon the ROC records pertaining to the companies/ entities mentioned in the aforegoing paragraphs.
12. Secondly, the revisionist claims that he was not holding any interest in MCPL at any time. It must be noted here that the said claim is negatived by the ROC records duly considered and discussed by the Ld. Trial Court in the impugned order dated 13.08.2019. Whether or not the revisionist acted as per the instructions of respondents is a matter of trial and could not be considered at this stage. Whether or not the revisionist had any intention to cheat the respondents is also a matter of trial. Rest of the pleas raised by the revisionist to challenge the impugned order dated 13.08.2019, on the basis of NCLT orders, are extraneous to the present proceedings as the said orders were not available before the Ld. Trial court at the relevant time. The revisionist is at liberty to raise the said pleas before the Ld. Trial Court during the course of Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 27/28 trial.
13. Having observed so, this Court does not find any reason to depart from the conclusions drawn by the Ld. Trial Court with respect to the culpability of the revisionist in the impugned order dated 13.08.2019. The order passed by Ld. Trial Court is well reasoned and does not seem to be arbitrary, perverse or irrational nor does it reflect any jurisdictional error which occasioned any injustice in the matter. The impugned order dated 13.08.2019 is accordingly upheld. Consequently the impugned order dated 27.01.2020, which is an offshoot of the order dated 13.08.2019, is also upheld. The present petition is devoid of any merits and is hereby dismissed.
14. TCR be sent back along with the copy of this judgment. Revision file be consigned to Record Room as per rules.
Digitally signed by LOVLEEN Date:Announced & Dictated in the LOVLEEN 2024.07.20 Open Court today i.e. 20.07.2024 16:02:03 +0530 (Lovleen) ASJ-03 (South East) Saket Courts, Delhi Crl. Revision. No. 261/2020 Abhishek Agrawalla vs Boortmalt N V & Ors. 28/28