Punjab-Haryana High Court
Pawan Goel vs State Of Haryana on 13 February, 2008
JUDGMENT Vinod K. Sharma, J.
1. This is a petition under Section 438 of the Code of Criminal Procedure for the grant of anticipatory bail to the petitioner in case FIR No. 173 dated 7.5.2007, under Sections 420, 467, 468 and 471 IPC, registered at Police Station Sadar Thanesar, District Kurukshetra.
2. It is case of the petitioner that initially the police has not registered a case. However, a complaint was filed before the learned Additional Chief Judicial Magistrate, Kuruskhetra, on the basis of which, the following FIR has been lodged:
In the Court of Ms. Vivek Bharti Ltd. CJM, Kurukshetra, in re: Basudev Garg son of Late Sh. R.L. Garg, r/o Proprietor- cum-Chairman of the firm M/s K.M.G. Milk Food Ltd. Village Masana, P.S. Sadar Thanesar, District Kurukshetra. Complainant v. 1. Pawan Goel son of Late Sh. Brij Lala Goel, r/o House number B-137 Preet Vihar, Delhi-110092. Accused, Humble prayer to send the complaint under Section 156(3) Cr.P.C. To SHO, P.S. Sadar Pipli for investigation and registration of the case under Sections 420, 467, 468, 471 IPC against the above named accused. Respected Madam, the complainant humbly submits as under:
1. That the complainant is peace loving and law abiding citizen of India and now he is residing on the aforesaid address. The complainant is the Chairman and whole time Director of the firm working under the name and style of M/s K.M.G. Milk food Ltd. Village Masana. The complainant along with his wife had gone abroad for the medical treatment of his son Mr. Kunal Garg and as such he remained present over there w.e.f. 1993-94 to 2000-01. In March 2000 the aforesaid son of the complainant expired in USA and such he lost his mental balance and could not deal with the affairs of the company and even he did not attend the office of the company at village Masana.
2. That since July 1993 to July 2006 the accused worked and functioned as whole time director of the firm of the complainant and he has also entrusted by the board of directors of the company. The accused was the Director in charge of the operational, administrative and financial matter of the said company. During the said period, the accused had been signing all the documents and communication on behalf of the company before its auditors, registrar of the companies, Govt. of India, negotiable instruments like cheques drawn to meet all sorts of expenditure of the said company and other documents required by Govt. departments and financial institutions. Actually, the accused kept the entire control of all the affairs of the company with effect from July 1998 to July 2006 but he did not remit the dues of the company to Income Tax, Sales Tax, Milk Cess etc. which then were standing towards the Company. The accused remained negligent in collecting 'C' form E-1/C-2 forms 'H' forms valuing about Rs. 2.85 crores from the respective customers against VAT and central sales tax to whom the accused had issued the sales invoices of the company's products for the financial years 2003-04, 2004-05 and 2005-06. Out of this amount of Rs. 2.85 crores a liability, recovery approximately of Rs. 62 (sixty two) lacs has already been raised by the Haryana Sales Tax authorities against the company. In addition to this, a liability of Rs. 8.65 crores have been raised by the Haryana Sales Tax Authorities against the company on account of the exemption availed by the company.
3. That the accused also dishonestly and fraudulently misappropriated an amount of more than Rs. One crore which was due towards the company as an amount of income Tax for the period w.e.f. 1998 to 2006. Now this amount is still standing to be paid by the company of the complainant to the Income Tax Department. The Chairman/complainant and the Board of Director of M/s K.M.G. Milk Food Ltd. Come to know about the said no payment of the said amount by the company to the Income Tax Department only when the company received notice under Section 22(1) of the Income Tax Act, 1961 in the month of August 2006.
4. That the accused paid only an amount of Rs. 17 lacs against the demand of more than Rs. 5 crores raised by the govt. of Haryana towards cess for the milk handled by the company of the complainant and in this way the accused dishonestly and fraudulently misappropriated an amount more than Rs. 5 crores out of the fundings of the company. Now-adays the Haryana Government is constantly making demand of the cess more than Rs. 5.00 crores from the company of the complainant is completely helpless to make the such payment to the State Government for the reasons stated above.
5. That in late 2007 or in early 2003, the accused without the due approval and knowledge of the Board of Directors of the company supplied skimmed Milk powder (60 Metric Tones) to the Military Farm in Udhampur, Jammu, out of which 20 Metric Tonnes Skimmed Milk Powder was returned as rejected by the Military Farm Authorities and now, the said quantity of skimmed milk powder is being demanded by the military farm authorities and this way the accused intentionally and dishonestly misappropriated an amount of more than Rs. Twelve lacs.
6. That in July 2006, the accused had diverted Rs. 10 lacs to his relatives out of the books which was received from M/s Parle Products Pvt. Ltd. Bhuj, Kutch, Gujarat. Now, M/s Parle Products Pvt. Ltd. Are demanding refund of this Rs. 10 lacs as it had been sent by them due to over sight on their p Article
7. That besides the aforesaid facts, the accused also intentionally, willfully, dishonestly and fraudulently cheated the complainant and the company to the tune of Rs. 10 crores and as such he committed an offence punishable under Sections 420, 467, 468 and 471 IPC. 8/ That the complainant made complaint to the SHO PS Sadar Pipli, but no action has been taken by the police against the accused. Hence, complaint. Thus keeping in view the aforesaid facts and circumstances, your honour is humbly prayed to send the complaint under Section 156(3) Cr.P.C. To the SHO P.S. Sadar, Pipli for registration and investigation of the case under Sections 420, 467, 468 and 471 IPC against the accused, in the interest of justice. Sd/-Basudev Garg s/o late Sh. R.L. Garg, Chairman & whole time Director M/s K.M.G. Milk Food Ltd. Village Masana, P.S. Sadar, Thanesar, District Kurukshetra, Haryana State.
3. This Court on 17.08.2007 was pleased to pass the following order:
Learned senior Counsel for the petitioner submits that all the amounts which are alleged to have been embezzled by the petitioner in the FIR dated 7.5.2007 (Annexure P-2) have in fact been accounted for an necessary dues paid by the Company. It is submitted that the petitioner would duly reconcile the accounts and explain his position. It is also submitted that the dispute infact is between two brothers-inlaw i.e. the petitioner and the complainant. In fact, the petitioner himself filed a petition (Annexure P-1) before the Company law Board, Northern Region Bench, New Delhi against the oppression and mismanagement committed by the complainant. Notice of motion.
At this stage, Mr. Roopak Bansal, Advocate for the complainant has put in appearance and has strongly opposed the grant of relief of interim bail. It is submitted that the bother of the petitioner is involved in a COFEPOSA case and has been declared a PO. Besides, the complainant lost his mental balance as his son had died while he was abroad. It is submitted that the petitioner was in control of the affairs of the management of the Company from 1993 to July 2006. During this period, the petitioner committed various acts of irregularities and misappropriation for which the custody is required for effective and proper investigation.
After giving my thoughtful consideration, it would be just and expedient for the time being to grant interim bail to the petitioner so as to enable him to show his bonafidies and reconcile the accounts. Besides, it is to be kept in view that the dispute is between the brothers-in-law.
In the circumstances, the petitioner, on his furnishing personal bond and surety to the satisfaction of the arresting/investigating officer, shall be admitted to interim bail. He shall join investigation as and when called and shall abide by the conditions of Section 438(2) Cr.P.C. He shall not leave the country without the prior permission of the Court. The passport, it is submitted, is already with the Police. The petitioner shall appear before the IO on 20.08.2007 at 10 AM and shall continue to do so thereafter as and when called for. List for hearing on 27.9.2007.
A copy of this order be given dasti on payment of usual charges.
4. Learned Counsel for the petitioner states that in pursuance to the order passed by this Court, the petitioner has joined the investigation.
5. However, Learned Counsel appearing for the State contests the application and has vehemently argued that though the petitioner has joined the investigation but he is not cooperating with the investigation. It may also be noticed here that the petitioner as well as the complainant are closely related and were running a company jointly.
6. As a matter of fact Audited Balance Sheet till date have been signed by the complainant himself after verifying the accounts of the company.
7. A dispute with regard to the operation of mis-management of the company is also pending between the parties before the Company Law Board, Northern Region Bench, New Delhi.
8. A reading of the FIR itself shows that the complaint has been filed after verifying all the facts, which are placed on the record. Thus, the records are in the possession of the Company.
9. Learned Counsel for the State submits that the custodial interrogation would be required to find out with respect to entries in the records of the company. The petitioner was one of the Directors along with the complainant, who was the Managing Director and once it is proved on record that all the records of the Company are available with the company and the officers of the Company are supporting the prosecution case , there is no ground for custodial interrogation as claimed.
10. The investigation of the case cannot be said to be hampered only because of grant of anticipatory bail. Petitioner can always be called for investigation to find out about a particular fact or document. The Learned Counsel for the State tried to show this Court certain bills regarding which allegations of forgery made by the petitioner as the plea that the said documents were prepared at his instance, but on seeing bills it is evident that it is clear that neither petitioner signed nor any employee of the company has signed. it is a fit case where interim anticipatory bail granted by this Court vide order dated 17.08.2007, needs to be confirmed.
11. Consequently, this petition is allowed. The Order dated 17.08.2007 is made absolute till expiry of two months from the date of filing of challan. The petitioner in the meantime may move the trial Court for regular bail.