Delhi District Court
Tourism Finance Corporation vs Cross Country Hotels Ltd. 1 / 2 on 22 March, 2023
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-6, SOUTH DISTRICT, SAKET
COURTS, NEW DELHI
REVISION PETITION NO. 254/2019 (RBT 08/2022 )
IN THE MATTER OF:
1. Tourism Finance Corporation
of India Ltd. (TFCI)
Through its Authorized Representative
Mr. M. Ramachandran
4th Floor, Tower-1, NBCC, Plaza,
Sector-V, Pushpvihar Saket,
New Delhi-110017
2. Mr. M. Narayanan
4th Floor, Tower-1, NBCC, Plaza,
Sector-V, Pushpvihar Saket,
New Delhi-110017
3. Mr. M. Ramachandran
4th Floor, Tower-1, NBCC, Plaza,
Sector-V, Pushpvihar Saket,
New Delhi-110017
4. Manju Kapoor
4th Floor, Tower-1, NBCC, Plaza,
Sector-V, Pushpvihar Saket,
New Delhi-110017
.............. Revisionists
Cr Rev 254/2019& 256/2019 Tourism Finance Corporation of India ltd.Vs. Cross Country Hotels Ltd. 1 / 21
&
R Sharma Vs. Cross Country Hotels Ltd.
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2023.03.22
17:15:26
+0530
Versus
M/s Cross Country Hotels Ltd.
Having its office at E-6 First Floor,
L.S.C., J-Block Market, Saket,
New Delhi-110017
Through Sh. Vijay Kumar Janeja
.............. Respondent
AND IN
REVISION PETITION NO. 256/2019 (RBT 07/2022)
IN THE MATTER OF:
1. Mr. R Sharma
A-22, Ashok Vihar, Phase I,
Delhi 110052
2. Mr. Anoop Bali
4th Floor, Tower-1, NBCC, Plaza,
Sector-V, Pushpvihar Saket,
New Delhi-110017
3. Mr. Rudra Nath Jha
Flat No.803, Navyug Apartments,
Plot No.11, Sector 43, Gurgaon,
Haryana-122002.
..............Revisionists
Versus
Cr Rev 254/2019& 256/2019 Tourism Finance Corporation of India ltd.Vs. Cross Country Hotels Ltd. 2 / 21
&
R Sharma Vs. Cross Country Hotels Ltd.
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2023.03.22
17:15:34
+0530
M/s Cross Country Hotels Ltd.
Having its office at E-6 First Floor,
L.S.C., J-Block Market, Saket,
New Delhi-110017
Through Sh. Vijay Kumar Juneja
.......Respondent
Instituted on : 13.09.2022
Reserved on : 22.02.2023
Pronounced on : 22.03.2023
JUDGMENT
1. Vide this common judgment, I shall dispose of both the revision petitions filed U/s 397 Cr.P.C 1973 against the summoning order dated 15.02.2019 passed by Ld. ACMM South whereby revisionists namely Tourism Finance Corporation of India Ltd. (TFCI), M. Narayanan, M. Ramachandran, Manju Kapoor, R Sharma, Anoop Bali and Rudra Nath Jha have been summoned for the offences U/s 196/406/467/468/471/477- A/120-B/34 IPC.
2. Briefly stated the facts as per record are as under:-
Application U/s 156 (3) Cr.P.C 1973 alongwith a complaint U/s 190 read with section 200 Cr.P.C was filed against Tourism Finance Corporation of India through its CMD Ms. Archana Kapoor, M. Narayanan, R. Sharma, Anoop Bali, Prabat K Singh, RN Jha, S Gaur, N Ramachandran and Manju Kapoor for the offences U/s196 / 209/ 403/ 406/ 409/ 420/ 468/ 471/ 120B IPC on 06.09.2010. The matter came up for hearing on 07.09.2010. Vide order dated 09.12.2011 of Ld. MM, the application U/s Cr Rev 254/2019& 256/2019 Tourism Finance Corporation of India ltd.Vs. Cross Country Hotels Ltd. 3 / 21 & R Sharma Vs. Cross Country Hotels Ltd.
Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.03.22 17:15:44 +0530 156(3) Cr.P.C was dismissed and matter was fixed for CE on 29.03.2012. After examination of witnesses on behalf of the complainant and investigation U/s 202 (1) Cr.P.C, accused persons namely Tourism Finance Corporation of India, M. Narayanan, R. Sharma, Anoop Bali, R.N. Jha, S. Gaur, N. Ramachandran and Manju Kapoor were summoned vide order dated 15.02.2019 of Ld. ACMM, South for the offences U/s 196/406/467/468/471/477-A/120-B/34 IPC. Present revision petitions have been filed against that order.
3. Arguments heard from both the sides.
Ld. Counsel for the revisionists has challenged the impugned order on following grounds:-
(i) Ld. Trial Court has passed the order in question in a mechanical manner without properly appreciating the facts and the law applicable therein.
(ii) The alleged forged documents were filed before Debt Recovery Tribunal in other proceedings pending between the parties so the proper way to file the complaint was as per the procedure prescribed U/s 195 Cr.P.C and the private complaint moved on behalf of M/s Cross Country Hotels Ltd. was not maintainable.
(iii) All the revisionists were government servants on the day when cognizance was taken on the complaint U/s 200 Cr.P.C i.e., 09.12.2011 so it was mandatory for the respondent herein to obtain sanction U/s 197 Cr.P.C and due to the absence of the same, cognizance and subsequent summoning is bad in law.
(iv) Ld. ACMM did not appreciate the fact that alleged forged signatures of Mr. Abhishek Aggarwal were sent to FSL alongwith his admitted Cr Rev 254/2019& 256/2019 Tourism Finance Corporation of India ltd.Vs. Cross Country Hotels Ltd. 4 / 21 & R Sharma Vs. Cross Country Hotels Ltd.
Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.03.22 17:15:51 +0530 signatures for comparison during investigation U/s 202 Cr.P.C and it was opined therein that it was not possible to express any opinion on the same.
4. It has been argued by Ld. Counsel for the revisionists that respondent M/s Cross Country Hotels Ltd. was granted financial assistance by way of term loans during the period 1993-1996 to the tune of Rs. 1,023 lacs for setting up hotels in Rajasthan after executing various loan agreements. As security thereof, the promoters/directors of the company gave irrevocable personal guarantee alongwith first charge by way of hypothecation over its movable properties and mortgage of its immovable properties pertaining to Hotel projects at Mukundgarh, Bikaner and Jaisalmer. Apart from these term loans, respondent was also sanctioned equipment lease finance facility to the tune of Rs. 19.50 lacs in the year 1993 for its hotel at Mukundgarh and an agreement dated 05.11.1993 was entered into between them for this purpose. Further, the respondent defaulted in making the payments due to which, its account were declared as NPA on 30.09.1998. Subsequently, steps were taken by the revisionist Tourism Finance Corporation of India Ltd. for recovery of amount from the respondent. Two original applications were filed before Debt Recovery Tribunal-1 at New Delhi. TFCI took possession of secured assets of the respondents in the form of immovable properties situated at Bikaner, Mukundgardh and Jaisalmer on 22.08.2008 in terms of section 13(4) of SARFAESI Act. To restrain TFCI from selling these properties to recover its legitimate dues, respondent started filing various applications before different forums including DRT, Delhi High Court, Rajasthan High Court and Supreme Court of India, however, no relief was granted to it. It was argued that the proceedings/ case filed before Ld. ACMM (South) was also one of those proceedings which were filed just to harass the TFCI and its officers for diligently taking steps to recover Cr Rev 254/2019& 256/2019 Tourism Finance Corporation of India ltd.Vs. Cross Country Hotels Ltd. 5 / 21 & R Sharma Vs. Cross Country Hotels Ltd. Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.03.22 17:16:06 +0530 public money. It was further argued that the issue pertaining to alleged forgery of documents has been dealt by Ld. DRT, Ld. DRAT and Hon'ble Delhi High Court, despite that complaint in question was filed before Ld. Trial Court at Saket. It was also argued that initially, respondent has claimed that apart from balance confirmation certificates dated 29.05.1998 (Ex.CW2/1 to Ex.CW2/6), a letter dated 13.03.1997 requesting TFCI to release the balance term loan sanctioned for the Jaisalmer Project after adjusting the dues of respondent for the period October 1996 to January 1997 bearing signature of Mr B.K Malhotra, then Director (Finance) of the respondent was also forged and fabricated. It was only when said document was sent to FSL and statement of Mr. B.K. Malhotra was recorded in pursuance to orders passed by Ld. DRAT and Hon'ble Delhi Hight Court, the falsity of claims of respondent came on record. Also, there was no communication on behalf of respondent through Mr. Abhishek Aggarwal prior to balance confirmation certificates dated 29.05.1998, so the petitioners could not have known that such a person is working with the respondent or could have forged his signatures. Lastly, as nothing conclusive came on record even after sending the alleged forged documents to FSL and due to non compliance of provision as contained in Section 195 and Section 197 Cr.P.C, the petitioners could not have been summoned for the alleged offences. It has been prayed that impugned summoning order may be set aside.
5. Per contra, it has been argued by Ld. Counsel for the respondent that there is no illegality in the order dated 15.02.2019 of Ld. Trial Court. It was argued that TFCI has already recovered its dues after selling the immovable properties of the respondent for a value much less than the market value of the properties. This fact was not brought to the notice of this Court Cr Rev 254/2019& 256/2019 Tourism Finance Corporation of India ltd.Vs. Cross Country Hotels Ltd. 6 / 21 & R Sharma Vs. Cross Country Hotels Ltd.
Digitally
signed by
SUNIL SUNIL GUPTA
Date:
GUPTA 2023.03.22
17:16:14
+0530
intentionally. Also, TFCI is no more a Government company so the question of compliance of Section 197 Cr.P.C does not arise. Even otherwise, it is settled law that protection U/s 197 Cr.P.C is not available to the officers for the offences which are in no way connected to the discharge of their official duties, as is the case here. Further, whether the documents in question were forged or not and who did the same, can be ascertained during trial and Ld. Trial Court was not required to go into such details while passing the summoning order. He has prayed that present revision petitions may be dismissed and petitioners/ revisionists be directed to join the proceedings before Ld. Trial Court.
6. I have considered the submissions from both the sides alongwith record and judgments cited. After hearing the arguments, matter was put up for clarifications on the point of applicability of Section 197 Cr.P.C in view of words "not removable from his office save by or with the sanction of the Government" as appearing therein vide order dated 31.01.2023. Matter was taken up on 22.02.2023 and on said date, none appeared on behalf of respondent. Ld. Counsel for revisionists submitted that he was not pressing Section 197 Cr.P.C in support of his revision petition due to technical reasons. Accordingly, said ground is not being dealt up in the judgment.
7. Relevant portion of impugned order is being reproduced below for ready reference:-
"Although, the FSL has not given any concrete report on the signatures on the balance confirmation certificates when compared with admitted signatures of the said Mr. Aggarwal, I have perused the bank documents of the said witness. His signatures on the same are completely different from the signatures on balance confirmation certificates. Otherwise also he could not have been an appropriate authority for Cr Rev 254/2019& 256/2019 Tourism Finance Corporation of India ltd.Vs. Cross Country Hotels Ltd. 7 / 21 & R Sharma Vs. Cross Country Hotels Ltd. Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.03.22 17:16:22 +0530 issuing the balance confirmation certificates, being on a clerical position. Accused no.2 Sh. M. Narayanan was the Managing Director of TFCI during this period and therefore, over all In-charge of the institution. Mr. R. Sharma was the Manager, TSCI and dealing with the complainant company's account. Mr. Mr. Anoop Bali had submitted the forged and fabricated letter of 1996 in the Court of Mr. R.N Jha and Mr. S. Gaur were pursuing the litigation before the DRT and have the pleadings and affidavits etc. Mr. Ramchandran had filed the extract of the ledger and balance confirmation certificates and he is said to have filled balance confirmation certificates. Mrs. Manju Kapoor is one of the signatory to the alleged forged balance confirmation certificates.
I have also perused the record. My Ld. Predecessor had already conducted detailed inquiry and therefore, investigation under Section 202 Cr.P.C is not required. Clearly, offence under Section 196/ 406/ 467/ 468/ 471/477-A/120-B/34 IPC is made out. Therefore, accused persons be summoned for facing trial on filing of PF/copies of complainant and list of witnesses."
8. One of the ground taken by the revisionists is that the complaint before Ld. Magistrate was barred by Section 195 Cr.P.C. Ld. Counsel for the revisionist has submitted that the alleged forged documents were admittedly filed on behalf of the revisionist company before (DRT). So, the complaint regarding forgery of the document could have been filed by Ld. DRT or by any other officer authorized by it which is not the case here. It was argued that the complaint before Ld. Trial Court was filed by a private entity and same was not maintainable in law. Ld. Counsel for the respondent has submitted that the said complaint was not hit by Section 195 Cr.P.C however, he does not elaborate upon it further.
Section 195 Cr.P.C provides as under:-
"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice Cr Rev 254/2019& 256/2019 Tourism Finance Corporation of India ltd.Vs. Cross Country Hotels Ltd. 8 / 21 & R Sharma Vs. Cross Country Hotels Ltd. Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.03.22 17:16:30 +0530 and for offences relating to documents given in evidence:-
(1) No Court shall take cognizance:-
(a) (i) of any offence punishable under section 172 to 188 (both inclusive of the Indian Penal Code (45 of 1860), or
(ii) of any abetment of, attempt to commit, such offence,
(iii) of any criminal conspiracy in writing of the public servants concerned or of some other public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause(i) or sub-clause(ii), [except on the complaint in writing of that Court or by such officer of the Court a that Court may autorise in writing in this behalf, or of some other Court to which that Court is subordinate].
(2) Where a complaint has been made by a public servant under clause(a) of sub-section(1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:-
Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
Cr Rev 254/2019& 256/2019 Tourism Finance Corporation of India ltd.Vs. Cross Country Hotels Ltd. 9 / 21 & R Sharma Vs. Cross Country Hotels Ltd. Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.03.22 17:16:43 +0530 (3) In clause (b) of sub-section(1), the term "Court"
means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by a under a Central, provincial or State Act if declared by that Act to be a Court for the purposes of this section.
(4) For the purpose of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decree or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate:
Provided that:-
(a) Where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) Where appeals lie to a civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."
Corresponding provision in Section 22 (3) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 provides as under:-
22. Procedure and powers of the Tribunal and the Appellate Tribunal:-
(3) Any proceeding before the Tribunal or the Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purposes of section 196, of the Indian Penal Code (45 of 1860) and the Tribunal or the Appellate Tribunal shall be deemed to be a civil court for all the pruposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
9. Considering the above provisions, it is clear that Section 195 Cr.P.C is applicable to the proceedings before Ld. Debt Recovery Tribunal also.
Cr Rev 254/2019& 256/2019 Tourism Finance Corporation of India ltd.Vs. Cross Country Hotels Ltd. 10 / 21 & R Sharma Vs. Cross Country Hotels Ltd. Digitally signed by SUNIL SUNIL Date:
GUPTA GUPTA 2023.03.22 17:16:51 +0530 Having said that it is not the case of the respondent that the alleged forged documents were so forged after those were filed before Ld. DRT. It appears that the case of respondent is that those documents were so forged before filing the same in the proceedings against it before the Tribunal. In these circumstances, the bar of Section 195 Cr.P.C is not applicable and the complaint was maintainable before Ld. Magistrate. Reliance is placed on the judgment of Hon'ble Apex Court in Iqbal Singh Marwah & Anr. Vs. Meenakshi Marwah & Anr Crl. Appeal No. 402/2005 where in it was held as under:-
"25. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) Cr.P.C would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceedings in any Court i.e., during the time when the document was in custodia legis.
26. In the present case, the will has been produced in the Court subsequently. It is nobody's case that any offence as enumerated in Section 195(b)(ii) was committed in respect to the said will after it had been produced or filled in the Court of District Judge. Therefore, the bar created by Section 195(1)(b)(ii) Cr.P.C would not come into play and there is no embargo on the power of the Court to take cognizance of the offence on the basis of the complainant filed by the respondents. The view taken by the learned Additional Sessions Judge and the High Court is perfectly correct and calls for no interference."
So, this ground is of no help to the case of the revisionists.
10. The crux of the case of the respondent before Ld. Trial Court is that 6 different loans amounting to Rs. 10.23 crores were taken by it from TFCI Cr Rev 254/2019& 256/2019 Tourism Finance Corporation of India ltd.Vs. Cross Country Hotels Ltd. 11 / 21 & R Sharma Vs. Cross Country Hotels Ltd. Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.03.22 17:16:58 +0530 between 1993 to 1996. TFCI was supposed to release the funds as per terms and conditions of the contract but for the reasons best known to the officials of the company, the funds were not so released. The respondent company received funds in its accounts for the last time on 01.04.1996 however, the revisionist company continued to show the release of funds to it on papers with never came in the hands of respondent company. Also, they did not make any payment to the revisionist company after April 1996 and its account should have been declared NPA as per RBI guidelines as applicable at that time however, instead of doing so 6 balance confirmation certificates were forged and fabricated by TFCI. The balance confirmation certificates were so signed by one Mr. Abhishek Aggarwal on behalf of respondent company which was not possible as the certificates were bearing the date 29.05.1998 whereas Mr. Aggarwal had left its services in the year 1997. Also, his designation has been wrongly mentioned therein as Manager Accounts whereas he was merely an Accounts Assistant there. Further, as per the contents of the letter, said certificates should have been signed by MD, Chairman or GM of the respondent company. Still further, Mr. Abhishek Aggarwal has denied his signatures on those certificates and his testimony before Ld. Trial Court as CW-03 is also to the same effect. The allegations of the respondent company are that those balanced confirmation certificates so forges so as to extend the period of limitation for taking action as per law against the respondent company which in the absence of those certificates, could not have been taken in the year 2000.The allegations were also pertaining to difference in account statements.
11. The case of revisionists as brought before this Court is that no such forgery has been done by the revisionist company or the remaining Cr Rev 254/2019& 256/2019 Tourism Finance Corporation of India ltd.Vs. Cross Country Hotels Ltd. 12 / 21 & R Sharma Vs. Cross Country Hotels Ltd. Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.03.22 17:17:05 +0530 revisionist who were serving as its officials at the relevant time. The allegations that loan amount was not disbursed to respondent company after April 1996 are stated to be false however, it has been admitted that subsequent disbursal of amount was not credited to the account of respondent company rather it was adjusted to the outstanding dues towards the revisionist company which was permissible as per contract between them.
12. The relevant term in the contract between the parties is being reproduced below for ready reference:-
"Section 4.2 ADJUSTMENT OF OVERDUES The Lenders may deduct from sums to be lent to the Borrower any monies then remaining due and payable by the Borrower to the Lenders."
As per Section 4.2 reproduced above, it appears that the revisionist company was well within its rights to deduct the money to be disbursed to the respondent company against the outstanding dues. This term and condition is admittedly the part of contract between the parties. Ld. Counsel for respondent company has not made any submissions on this particular term in the contract for the reasons best known to him. The case of the respondent company is that a sum of Rs. 2,02,68,194/- which was shown by TFCI as having being released to it on various dates was infact not so received and this was done only to keep their accounts alive. Ld. Counsel for the revisionists has submitted that said amount was adjusted against the outstanding dues of the respondent company in terms of aforementioned condition in the contract between them. It is not the case of the respondent company that the amount was not outstanding on their part. In these circumstances, this Court is unable to see as to how the acts of officials of TFCI in adjusting the amount to be disbursed to the respondent Cr Rev 254/2019& 256/2019 Tourism Finance Corporation of India ltd.Vs. Cross Country Hotels Ltd. 13 / 21 & R Sharma Vs. Cross Country Hotels Ltd. Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.03.22 17:17:11 +0530 company to the outstanding dues on its part can be termed as illegal or without any authority from the respondent company.
13. Main ground taken by respondent company in its complaint before Ld. Trial Court and which has been made the basis of its summoning order by Ld. ACMM (South) is that the balance confirmation certificates dated 29.05.1998 have been forged and the signatures of Mr. Abhishek Aggarwal have not been done by him. Mr. Aggarwal was examined before Ld. Trial Court as CW-3 and he categorically deposed that he had left the respondent company in September 1997. He stated that documents Ex.CW2/1 to ExCW2/6 were not bearing his signatures over the revenue stamp and he has never signed any such certificates as he was not having any such power to sign any documents in the company. Apart from this testimony, the balance confirmation certificates alongwith his admitted as well as sample signatures were sent to FSL during investigation U/s 202 (1) Cr.P.C as per order of Ld. Trial Court wherein it was opined as under:-
"It has not been possible to express any opinion on red enclosed writings & signatures stamped & marked Q7 to Q18 in comparison with red enclosed writings & signatures similarly stamped & marked S4 to S11 & A6 to A23.
However, further attempt can be made if some more admitted genuine writings & signatures preferably of contemporary period of the person concerned are supplied to this laboratory for the examination."
14. So the FSL did not give any conclusive opinion on this particular aspect. Ld. ACMM himself compared the disputed signatures of Mr. Aggarwal alongwith his admitted signatures on the bank documents and came to the conclusion that same are completely different from the signatures on balance confirmation certificates. He was also of the view that even otherwise, Mr. Aggarwal was not the appropriate person for Cr Rev 254/2019& 256/2019 Tourism Finance Corporation of India ltd.Vs. Cross Country Hotels Ltd. 14 / 21 & R Sharma Vs. Cross Country Hotels Ltd. Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.03.22 17:17:17 +0530 issuing the certificates as he was holding a clerical position only. On this basis, Ld. ACMM summoned the revisionist company alongwith Mr. M. Narayanan, Mr. R. Sharma, Mr. Anoop Bali, Mr. R.N. Jha, Mr. S. Gaur, Mr. Ramachandran and Mrs. Manju Kapoor for the offences U/s 196/406/467/468/471/477A/120B/34 IPC. The reasoning given by Ld. Trial Court for summoning Mr. M. Narayanan is that he was the Managing Director of TFCI at the relevant time, therefore was overall incharge of the institution. Mr. R. Sharma has been summoned as he was the Manager therein and was dealing with the account of the respondent company. Mr. Anoop Bail has been summoned as he has submitted the forged and fabricated letter of 1996 in the Court whereas Mr. R.N. Jha and Mr. S. Gaur were summoned because they were pursuing the litigation before the DRT and have filed the pleadings and affidavits etc. Mr. Ramachandran has been summoned because he has filed the extract of the ledger and balance confirmation certificates and is also stated to have filled balance confirmation certificates. Mrs. Manju Kapoor has been summoned as she is one of the signatories to the alleged forged balance confirmation certificates.
15. Record reveals that the respondent company has filed the complaint against one Mr. Prabhat K. Singh also but there is no mention of Mr. Singh in the summoning order. It is not clear as to why he has not been summoned. Similarly, it is not clear as to on which basis the revisionists (except the revisionist company) have been summoned by Ld. Trial Court. This Court is unable to see as to where the respondent company has mentioned the role of revisionists (except the revisionist company) in the commission of alleged offence. The respondent company has examined 6 witnesses in total in support of its case. CW-1 Mr. Dilip Kumar Biswal has Cr Rev 254/2019& 256/2019 Tourism Finance Corporation of India ltd.Vs. Cross Country Hotels Ltd. 15 / 21 & R Sharma Vs. Cross Country Hotels Ltd. Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.03.22 17:17:27 +0530 brought the certified copy of bank account statement of account bearing no. 17CA983 pertaining to respondent company, which was exhibited as Ex.CW1/A. CW-2 Mr. N. Ramachandran had placed on record the alleged forged balance confirmation certificates, which was exhibited as Ex.CW2/1 to Ex.CW2/6. CW-3 Mr. Abhishek Aggarwal was examined by the respondent company to prove that he did not sign the balance confirmation certificates. He deposed before the Court that he had joined the company in 1996 and left the same in September 1997. He also stated that he never signed on balance confirmation certificates. He placed on record copy of his PAN card alongwith an affidavit dated 14.01.2011 which were exhibited as Ex.CW3/1 (OSR) and Ex.CW3/2 respectively. CW-4 Mr. Sukhmeet Singh had brought the record pertaining to 6 term loan accounts as well as lease accounts pertaining to respondent company available with TFCI and copy of thereof was exhibited as Ex.CW4/1(Colly running into 16 pages) (OSR). CW-5 Mr. Ajay Kumar had placed on record the statement of accounts pertaining to respondent company filed in OA 26/2000 pending before DRT-1. Copy thereof was exhibited as Ex.CW5/1 (Collectively running into 10 pages).
16. CW-6 Mr. Sunil Kumar Juneja is the material witness on behalf of respondent company. He was MD of the company at the time of recording of his testimony dated 05.01.2015. His testimony was recorded on two dates i.e., 05.01.2015 and 30.05.2015. The relevant portion of his testimony containing the allegation against the revisionists is being reproduced below for ready reference:-
"On 05.01.2009, the Apex Court gave direction to TFCI to provide all the debt related documents to the company, the TFCI gave the documents in July 2009. After getting documents the company got to know about the forgery and cheating done by the TFCI in Cr Rev 254/2019& 256/2019 Tourism Finance Corporation of India ltd.Vs. Cross Country Hotels Ltd. 16 / 21 & R Sharma Vs. Cross Country Hotels Ltd. Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.03.22 17:17:35 +0530 filing recovery suit in DRT-I/II and the SARFAESI action taken by TFCI against the company on 22.08.2008.
The company filed an appeal against the SARFAESI action taken by TFCI in DRT-I with the direction of Apex Court in 2009 (SA-77/2009). During the argument of SA-77 in 24/25, November, 2009 the TFCI filed 6 balance confirmations certificates at 6 term loans dated 29.05.1998 taken by the company from TFCI singed by Assistant Manager of TFCI Smt. Manju Kapoor and from the company side the all 6 balance confirmation certificates were signed by Mr. Abhishek Aggarwal.
Mr. Abhishek Aggarwal was the Ex-employee at the company in the year 1997. In September, 1997 Mr. Abhishek Aggarwal resigned from the company because the company's registered office shifted from Delhi to Mukandgarh, Rajasthan. When the balance confirmation was signed he was not the employee of the company as well he was not authorised by the company to sign any debt related/official document of the company because in the balance confirmation certificate the TFCI itself has mentioned that the certificate has to be signed by the Chairman of the company or GM or MD but these were signed by a clerical staff of the company Mr. Abhishek Aggarwalm who was Junior Clerk in the company in year 1997. When the company contacted Mr. Abhishek Aggarwal he refulsed that he had signed any balance confirmation certificate and it is already verified in the court during his statement, so to prove that they have disbursed the full principal amount to Cross Country Hotels Ltd. and their SARFAESI Act 2002 action was as per law, the NPA declared by TFCI is as per RBI guidelines and the recovery suit filed by the TFCI is not time barred. The fact is they have not disbursed Rs. 2.02 crore to the company and made the company sick which is a big boss to the company and the Promoters/Directors.
In 1999 the TFCI wrote a letter dated 15.10.1999 and asked to Cross Country Hotel Ltd. to give balance confirmations of all 6 term loans. If they had balance Cr Rev 254/2019& 256/2019 Tourism Finance Corporation of India ltd.Vs. Cross Country Hotels Ltd. 17 / 21 & R Sharma Vs. Cross Country Hotels Ltd. Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.03.22 17:17:49 +0530 confirmation certificates dated 29.05.1998 then what was the need to write again in 15.10.1999 to the company and asking for the balance confirmation certificates."
17. Perusal of aforementioned testimony reveals that the allegations have been leveled against TFCI only and no individual has been named as such.
Even no allegation has been leveled on any person on the basis of his designation in the revisionist company. In his testimony recorded thereafter on 30.05.2015, CW-6 has exhibited several documents including the complaints made to DCP, EOW Cell and to Commissioner of Police. The allegations mentioned in the said testimony are being reproduced below:-
"The officers of the TFCI did not disburse the entire sanctioned loan of Rs. 10.23 crores to the complainant company and balance sanctioned amount of about Rs. 2.02 crores was adjusted in the accounts and shown as paid by the TFCI and for that the accused persons forged and fabricated the statement of account and account books to show the entire amount as disbursed. The forgery in the accounts was submitted to bring the account within limitation for claiming the recovery before DRT, New Delhi. The loan accounts were liable to be declared an NPA on September 30th, 1996 but due to illegal acts and deeds the accounts were shown as regular till 31st March, 1998 contrary to the records of the TFCI."
18. So it is clear from the above that no allegations against any individual by his name or designation were leveled by CW-6 on 30.05.2015 also. In these circumstances, it appears that Ld. Trial Court fell in error in passing the impugned order as far as summoning of the individual revisionists is concerned as no material has come before it during the testimonies of witnesses so as to show as to what was their specific role in Cr Rev 254/2019& 256/2019 Tourism Finance Corporation of India ltd.Vs. Cross Country Hotels Ltd. 18 / 21 & R Sharma Vs. Cross Country Hotels Ltd. Digitally signed by SUNIL SUNIL Date:
GUPTA GUPTA 2023.03.22 17:17:57 +0530 the commission of alleged offence. Even otherwise, it appears that the revisionists herein (except the revisionist company) have been summoned only on the basis of their position in the revisionist company at the relevant time and their handling of account of respondent company as well as litigation pertaining to it. However, same could not have been so done as it is settled law that there is no concept of vicarious liability in criminal law except where the statute itself provides to that effect. Reliance is placed on the judgment of Hon'ble Apex Court in Ravindranatha Bajpe Vs. Mangalore Special Economic Zone Ltd. & Others Etc. Crl. Appeal No. 1047-1048/2021 in which it was held as under:-
"8.3 As held by this Court in this case of India Infoline Limited (supra), in the order issuing summons, the learned Magistrate has to record his satisfaction about a prima facie case against the accused who are Managing Director, the company Secretary and the Directors of the Company and the role played by them in their respective capacities which is sine qua non for initiating criminal proceedings against them. Looking to the averments and the allegations in the complaint, there are no specific allegations and/or averments with respect to role played by them in their capacity as Chairman, Managing Director, Executive Director, Deputy General Manager and Planner & Executor. Merely because they are chairman, Managing Director/Executive Director and/or Deputy General Manager and/or Planner/Supervisor of A1 & A6, without any specific role attributed and in role played by them in their capacity, they cannot be arrayed as an accused, more particularly they cannot be held vicariously liable for the offences committed by A1 & A6.
9. From the order passed by the learned Magistrate issuing the process against the respondents herein - accused nos.1 to 8, there does not appear that the learned Magistrate has recorded this satisfaction about a prima facie case against respondents nos 2to5 and 7&8 are the chairman/Managing Cr Rev 254/2019& 256/2019 Tourism Finance Corporation of India ltd.Vs. Cross Country Hotels Ltd. 19 / 21 & Digitally signed R Sharma Vs. Cross Country Hotels Ltd. SUNIL by SUNIL GUPTA GUPTA 17:18:07 +0530 Date: 2023.03.22 Director/Executive Director/Deputy General Manager/Planner & Executor, automatically they cannot be held vicariously liable, unless, as observed hereinabove, thhere are specific allegations and averments against them with respect to their individual role. Under the circumstances, the High Court has rightly dismissed the revision application and has rightly confirmed the order passed by learned Sessions Court quashing and setting aside the order passed by herein - original accused nos. 1 to 8 for the offences punishable under Sections 427,447,506 and 120B read with Section 34 IPC."
19. It is also settled law that while summoning a person as an accused in a criminal complaint case, the Court should apply its mind to the facts of the case and the law applicable thereupon. Such application of mind should be reflected in the summoning order. Reliance is placed on the judgment of Hon'ble Apex Court in M/s Pepsi Foods Ltd. & Anr Vs. Special Judicial Magistrate & Ors. 1997 (4) RCR (Criminal) 761 in which it was held as under:-
"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to he accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put question to the complainant and his witnesses to elicit answers to find Cr Rev 254/2019& 256/2019 Tourism Finance Corporation of India ltd.Vs. Cross Country Hotels Ltd. 20 / 21 & R Sharma Vs. Cross Country Hotels Ltd.
Digitally signed by SUNIL SUNIL Date:
GUPTA GUPTA 2023.03.22 17:18:19 +0530 out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
20. Considering the above discussion, this Court is of the view that the impugned summoning order does not show proper application of mind by Ld. Trial Court. The specific allegations against the individual revisionists have not been mentioned in the order. Similarly, the evidence against them on the basis of which they have been summoned has not been discussed/pointed out. As far as revisionist company i.e., TFCI is concerned, it is to be noted that the allegations of forgery and cheating have been leveled against it. However, there is no discussion in the impugned order as to whether the evidence on record is sufficient for justifying its summoning for the alleged offences.
21. Accordingly, the summoning order dated 15.02.2019 is hereby set aside against the revisionists namely Tourism Finance Corporation of India Ltd., M. Narayanan, M. Ramachandran, Manju Kapoor, Mr. R Sharma, Mr. Anoop Bali and Mr. Rudra Nath Jha. The matter is remanded back to Ld. Trial Court to pass the summoning order afresh after considering the material on record as per law.
Revision petitions are disposed of in said terms.
Digitally signed by SUNIL SUNIL GUPTA
GUPTA Date:
2023.03.22
17:18:30 +0530
Announced in the open (Sunil Gupta)
Court on 22nd March, 2023 Additional Sessions Judge-06,
South, Saket Courts, New Delhi
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R Sharma Vs. Cross Country Hotels Ltd.