Calcutta High Court (Appellete Side)
Pincon Spirit Limited vs The State Of West Bengal & Anr on 9 February, 2018
Author: Debi Prosad Dey
Bench: Debi Prosad Dey
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debi Prosad Dey
CRR No. 189 of 2018
Pincon Spirit Limited...................Petitioner/Appellant
Versus
The State of West Bengal & Anr.....Respondent/Opposite party
For the Appellant/ : Mr. Milon Mukherjee, Petitioner : Mr. Rana Mukherjee For the Opposite : Mr. S. G. Mukhopadhyay, Ld. P.P. Party/ Respondent : Mr. Ayan Basu Heard on : 17.01.2018, 01.02.2018 Judgment on : 09.02.2018 Debi Prosad Dey, J. :-
Challenge in this revisional application is the order dated 16.12.2017 passed by learned Additional District and Sessions Judge, 3rd Court, Tamluk, Purba Medinipore being the designated Court under West Bengal Protection of Interest of Depositors in Financial Establishments Act, 2013 whereby and whereunder learned Judge has rejected the application of Pincon Spirit Limited for deleting the name of Pincon Spirit Limited from the list of accused persons and to unlock the bank accounts, registered office and plant and machinery of Pincon Spirit Limited.
Learned senior Advocate Mr. Mukherjee appearing on behalf of the petitioner contended that Pincon Spirit Limited is in no way connected with alleged violation of the provisions of the Act under reference and several employees have been debarred from working in the said factory resulting in severe loss to the state exchequer. It is further submitted that a report was called for from the investigating agency and the investigating agency raised no objection if the factories are made operational subject to some conditions but learned Court below did not adhere to such report of the investigating agency and thereby erroneously rejected the application for making the factories operational. In that view of this case Mr. Mukherjee submitted that necessary order may be passed for making the factory operational in order to save the employees of such factory as well as the revenue generated from such factory in favour of the State. Learned Public Prosecutor Mr. Swasta Gopal Mukherjee further contended that Pincon Spirit Limited is a part of some other companies of the said group and the factory of Pincon Spirit Limited is being operated by the fund, collected from various depositors and accordingly learned trial Court was justified in rejecting such application.
Learned Public Prosecutor has also drawn the attention of the Court with regard to the pendency of writ petition no. 24110(W) of 2016 in the Division Bench of this Court. It is submitted that it is yet to be decided by the Hon'ble Division bench about the status of the petitioner and accordingly it would not be wise to interfere with the jurisdiction of the Hon'ble Division bench by passing any order in this regard.
An application under Section 14 of PIDFE Act was filed on behalf of the petitioner company in the trial Court with the prayer to delete the name of the company from the list of accused persons and to unlock the bank account, registered office and the plants and machinery of such company. A report was called for from the investigating agency and the investigating agency submitted the following report:
"with due respect in reference to above I beg to state that I have perused the content filed by the petitioner carefully, and beg to inform you that for the interest of the investigation of case the following numbers of offices & factories of Pincon Spirit Limited namely 1.) office of the Pincon Spirit Limited 7 Red Cross Place, ps‐Hare Street, Kolkata‐01, 2) Pincon Spirit Factory, Ganganagar, ps‐ Madhyamgram, Dist‐Nort 24 pgs, 3) office of Pincon Spirit Limited, Asansol, 4) Bhattacharya Bottling Plant Pvt. Limited now owned by Pincon Group, Dankuni Bil, Ps‐ Dankuni, Dist.‐ Hooghly have been seized in connection with above referred case for the interest of investigation of the case.
Further I would like to inform your kind honour that from our end we have no objection if the factories are operationalized subject to the following conditions.
1) Ld. Court may kindly designate Government servant as Administrator for the above mentioned offices & factories and other factories.
2) All the existing bank accounts of Pincon Spirit Lid. will remain frozen as there is a maze of transaction through these accounts and involving the depositor's money and the depositors need to be compensated.
3) All accounts will be audited at least once in six months by the Administrator‐ appointed Auditors.
4) New accounts may be opened for running the factories.
5) All profits emerging out of the operation of the seized factory will be deposited to the account of Directorate of Economic Offences. [ There is a special account created for such purpose under the Act.] "
It is apparent from the such report that the plant and machinery of four companies have been seized in connection with Khejuri police station case no. 47 of 2017. The investigating agency however raised no objection if the factories are made operational subject to some conditions i.e. to appoint designated Government servant as an administrator subject to keeping of the existing bank accounts of Pincon Spirit Limited in freeze and all properties emerging out of the operation of the said factory may be deposited to the account of Directorate of Economic Offences. The report does not reveal that the petitioner company may be permitted to operate the factory in terms of the prayer of the petitioner company. On the contrary, the report reveals that an alternative arrangement may be made for making the factory operational. The petitioner company has had no connection with such alternative arrangement as suggested by investigating agency since the principal prayer of the petitioner company is to delete the names of the accused persons from the list of accused persons and to unlock the plants and machineries of the factory including the registered officer and bank account.
It is apparent from the order passed by the Hon'ble Division Bench in WP 24110(W) of 2016 that the repayment to the investors was being made through Pincon Spirit Limited being one of the companies of the group (as per submission of learned senior Counsel).
However, learned Counsel appearing for the Pincon Spirit Limited submitted before the Hon'ble Division Bench that the Pincon Spirit Limited is not a part of the Pincon group. In order to avoid confusion the order passed by Hon'ble Division Bench may be reproduced below:
"A supplementary affidavit has been filed by Mr. Ali's client. Let the same be kept with records.
We are apprised by Ms. Sikdar, learned Counsel representing the Official Liquidator that Greenage Food Products Ltd., one of the components of Pincon Group is in liquidation and the Official Liquidator has taken possession of the registered office of the company. Her complaint is that the contributories are not filing their statements of affairs.
Mr. Ali, learned Senior Counsel appearing for the writ petitioners in W.P. 24110(W) of 2016 brings to our notice that there are five other companies of the same group and repayment to the investors was being made, inter alia, through Pincon Spirit Limited, being one of the companies of the Group. Learned Counsel appearing for the Pincon Spirit Limited however submits that they are not part of the Pincon Group. For effective adjudication of these writ petitions, we direct the respondent nos. 18 to 23 to disclose their list of shareholders as well as the names and identities of their directors and extent of shareholding of each of them before this Court on 20th September, 2017.
In the event any of these shareholders themselves are incorporated companies, then the names of individuals who are in effective control of these companies shall also be disclosed. The disclosure should be certified by the auditors of these companies. We shall consider these writ petitions for passing appropriate order on the next date of hearing.
Let these matters be listed on 20th September, 2017."
It is, therefore, apparent from the aforesaid order of the Hon'ble Division Bench that the matter is under active consideration of Hon'ble Division Bench. The claim of the Pincon Spirit Limited that they are not part of the Pincon group, is under active consideration of the Hon'ble Division Bench. In that view of this case I find no reason to interfere with the order passed by learned designated Court. Learned Public Prosecutor has also handed over the case diary for perusal. On careful scrutiny of the case diary it transpires that the fund was injected into the bank account of Pincon Spirit Limited from various financial institutions, which have been declared to be cheat fund in terms of West Bengal Protection of Interest of Depositors in Financial Establishments Act, 2013.
Mere initiation of proceedings under West Bengal Protection of Interest of Depositors in Financial Establishments Act, 2013 takes the property under the control of designated Court subject to follow up actions such as adjudication etc. The owners therefore forfeit their right over the property unless discharged by the designated Court. Locus of the petitioner to get the control over the property appears to be premature.
Moreover, the Division Bench is in seisin of the matter regarding the involvement of the company in the Pincon Group of Companies. On that score, also, the designated Court cannot decide as to if such property be kept out of the purview of investigation. Naturally at this stage, the designated Court has rightly rejected the prayer of the petitioner company to get control over the properties of such company and to delete the name of the company from the purview of investigation.
In that view of this case and having regard to the pendency of the writ petition no. 24110(W) of 2016 I am of considered view that the matter has to be settled by the Division bench as to if the Pincon Spirit Limited is one of the companies of the group under reference.
In the premises set forth above I find no merit in the instant revisional application. The revisional application stands rejected.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible (Debi Prosad Dey, J.)