Madras High Court
Ajay Kumar Bishnoi vs / on 30 August, 2022
Author: G.Jayachandran
Bench: G.Jayachandran
W.P.No.25661 of 2019
and W.M.P.Nos.25148 and 25149 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 23.08.2022
Pronounced on : 30.08.2022
Coram:
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
W.P.No.25661 of 2019
and
W.M.P.Nos.25148 and 25149 of 2019
Ajay Kumar Bishnoi .. Petitioner
/versus/
1.The Inspector of Police,
J-2, Adyar Police Station,
Dr.Muthulakshmi Road,
Indira Nagar, Adyar, Chennai 600 020.T.N
2.The Inspector of Police,
Represented by the Inspector of Police,
Economic Offence Wing, Janakpuri Main Road,
Near Janakpuri District Centre, Janakpuri,
New Delhi, Delhi 110 058, India.
3.Khusheel International Coatings,
Having office at DDA, Building District Centre,
Janakpuri, New Delhi 110 058. .. Respondents
_____________
Page No.1/12
https://www.mhc.tn.gov.in/judis
W.P.No.25661 of 2019
and W.M.P.Nos.25148 and 25149 of 2019
Prayer: Writ Petition has been filed under Article 226 of the Constitution of India
praying to issue a Writ of Declaration to declare the FIR in Crime No.104 of 2017
dated 10.06.2017 on the file of the 2nd respondent police as null and void, non-est
and invalid in law.
For Petitioner :Mr.A.L.Somayaji, Senior Counsel for
M.s Nithyaesh and Vaibhav
For Respondents :Mr.N.S.Suganthan,
Government Advocate
(Crl.Side)for R1
Mr.M.Sunil Kumar for R3
No appearance for R2
-----
ORDER
The petitioner herein is the first accused among 22 accused in the complaint registered by the EOW, New Delhi, in FIR No:104 of 2017, dated 10/06/2017.
2. The Writ Petition to declare the said FIR under investigation by the EOW, New Delhi as null and void, non-est and invalid in law is filed in Madras HIgh _____________ Page No.2/12 https://www.mhc.tn.gov.in/judis W.P.No.25661 of 2019 and W.M.P.Nos.25148 and 25149 of 2019 Court alleging that, the defacto complainant company has great money and muscle power in Delhi and therefore, the present FIR is registered with the Delhi EOW, although Delhi EOW, has absolutely no jurisdiction.
3. It is contended that, the petitioner was the Managing Director of the company by name M/s Tecpro Systems Ltd. This Company had a long standing business relationship with the defacto complainant Company M/s Khusheel International Coatings since the year 2004. From the year 2013, due to meltdown in the infrastructure Industry, M/s.Tecpro Systems Ltd., was facing severe financial crunch. At last, based on the Application Under 7 of the IBC, initiated by Edelweiss Asset Reconstruction Company it entered into the Corporation Insolvency Resolution Process (CIRP) on 07/08/2017 and the RP came to appointed. The Board of Directors in which the Petitioner was the Managing Director came to be suspended and moratorium was declared by NCLT. Before NCLT, the claim of the defacto complainant was rejected. When such being the case, the criminal complaint is filed before EOW, New Delhi to torment and harass the petitioner, who is no more in the management or Board of the M/s.Tecpro. _____________ Page No.3/12 https://www.mhc.tn.gov.in/judis W.P.No.25661 of 2019 and W.M.P.Nos.25148 and 25149 of 2019 After being failed in the attempt to succeed before the Civil Court and Company Forum, the defacto complainant is trying to abuse the criminal process.
4. The petitioner submits that, the criminal proceedings initiated, for a dispute which is purely civil in nature and there is no criminality. The ingredients for Section 420 IPC is not made out, since there is no inducement whatsoever at the time of inception, which is the basic element of Section 420 IPC. The trade between the defacto complainant and the petitioner was prevailing for more than 10 years and so far more than 46 crores of rupees paid to the defacto complainant. All the admitted liability paid and the disputed amount alone is pending. Even according to the defacto complainant, the due payable is not properly ascertained. In the complaint, the due payable is mentioned as Rs.34 crores. Whereas, the Hundi details indicates, the due is only Rs.13,26,48,926/-. The fact being a civil dispute, it ought to have been settled either through Arbitration or by Civil adjudication but certainly not through police complaint and criminal prosecution. _____________ Page No.4/12 https://www.mhc.tn.gov.in/judis W.P.No.25661 of 2019 and W.M.P.Nos.25148 and 25149 of 2019
5. Claiming that he is a resident of Chennai and the criminal complaint has infringed his personal liberty and referring few other complaints against him in connection with the affairs of his Company M/s Tecpro, which were investigated by CCB, Chennai, it is contended by the petitioner that the Writ petition in Chennai to declare the FIR registered by EOW at Delhi is maintainable.
6. It is further contended that entire cause of action is only within Chennai. The Banking Transaction happened in Chennai, the parties did business in Chennai, demand and supply of the goods and service was only at Chennai. Hence, the dictum laid down by the Hon'ble Supreme Court in NavinChandra Majithira –vs- State of Maharastra: 2000 (7) SCC 640 squarely applies to the case.
7. The Learned Counsel for the 3rd respondent defacto complainant submitted that, by false promise with criminal intention to cheat, the defacto complainant was induced to supply speciality paints to M/s.Tecpro Systems (Pvt) Ltd., represented by its Directors. The petitioner herein as one of its Director and Authorised Signatory dealt with the defacto complainant goods were supplied on _____________ Page No.5/12 https://www.mhc.tn.gov.in/judis W.P.No.25661 of 2019 and W.M.P.Nos.25148 and 25149 of 2019 credit basis. The Bill of Exchange/Hundi were not honoured even after lapse of the credit period. In connivance with the Bank Officials payments were held with intention to cheat. The Registered Office of the defacto complainant and M/s.Tecpro Systems (Pvt) Ltd are at Delhi. Though its Branch Office and the petitioner are at Chennai, the letter of intend and supply were finalised and determined only at Janakpuri, New Delhi. Hence, criminal complaint given to the jurisdiction police. Therefore, the present writ petition before Madras High Court is not maintainable, it is abuse of process of law.
8. The Learned Counsel for the 3rd respondent relying the judgment of this Court rendered in W.P.No.32536 of 2019 by the very same petitioner for same relief in respect of a different case of similar nature registered as F.I.R.No.490 of 2017 by Delhi Police, which was dismissed on the point of jurisdiction pleaded for dismissal of the Writ Petition.
9. The substance of F.I.R impugned in this Writ Petition is that, _____________ Page No.6/12 https://www.mhc.tn.gov.in/judis W.P.No.25661 of 2019 and W.M.P.Nos.25148 and 25149 of 2019 “The complainant and the accused are known to each other. The accused assured him for giving good returns in business with their company namely M/s Tecpro Systems Pvt. Ltd. And complainant started supplying various kinds of specialty paints used in INFRA projects like THERMAL POWER STATIONS etc. where TECPRO had interest in Material handling, which required specialized paints and coatings to arrest corrosion and also providing the man power. Initially TECPRO requested a credit of 90 days, slowly made him agree to accept dully accepted and signed HUNDIES on Stamp Papers for a credit of 120 days which slowly were raised intentionally to almost 270 days. This was going on till November 2012 and our due dates of Hundies started increasing. In 2013 which was getting due for payments, his Hundies were dishonored by their Bank for insufficient funds and DP exceeds. Banks concealed these facts almost three years, hand in hand with Tecpro and their Banker with complainant. The details of unpaid Hundies was revealed by letter dated 14.03.2016 of Bank of Baroda regarding returned of Bill of Exchange/Hundies which were as old as 30.09.2013 to 03.01.2014, how Tecpro and their banker managed to hold our payments for such a long period, when we were regularly with our bank for _____________ Page No.7/12 https://www.mhc.tn.gov.in/judis W.P.No.25661 of 2019 and W.M.P.Nos.25148 and 25149 of 2019 payment. Complainant stated that he was cheated by tune of approx. 34 crores by the directors and the concerned authorities under the instructions from the management of TECPRO GROUP and banks.”
10. This Court recently after considering the law on the transjurisdiction criminal dispute and the power of the High Court under Article 226(2) of the Constitution of India, has firmly held that, place of accused residence will not confer jurisdiction to the High Court to exercise its power to quash or declare F.I.R pending investigation beyond its territorial jurisdiction.
11. In W.P.Nos.2688 & 25129 of 2021 (Maria Ramesh and others -vs- State judgment dated 11.08.2022), the Learned Judge considering the facts of that case which is almost similar to this instant case and considering the dictum laid in;
i). Nishant Mishra and others -vs- State of U.P. And others reported in (2011) SCC Online All 612.
ii). Karthi P.Chidambaram vs. Superintendent of _____________ Page No.8/12 https://www.mhc.tn.gov.in/judis W.P.No.25661 of 2019 and W.M.P.Nos.25148 and 25149 of 2019 Police reported in MANU/TN/2500/2017.
iii). S.Ilanahai -vs- The State of Mumbai reported in (2015) 1 LW (Crl) 395.
iv). Bhavendra Hasmukhal Patadia -vs- Union of India reported in MANU/GJ/1199/2022.
v). Dashrath Rupsingh Rathod -vs- State of Maharashtra reported in (2014) 9 SCC 129.
“34. In the case on hand, the cause for lodging the complaint at a particular place must not be confused with the cause of action for filing the Writ Petition to quash the said FIR. Even if a fraction of the cause for filing the complaint has arisen at New Delhi, an FIR could be lodged at New Delhi. Even assuming that the said registration of FIR in New Delhi is malafide, the cause of action for filing this Writ Petition to quash the said FIR could arise only before the Hon'ble High Court of New Delhi and not at all places where part of cause for lodging the complaint may have arisen and where the FIR could have been registered and investigated and where the ensuing criminal case could have been tried. Thus cause of action for lodging the criminal complaint is different from the cause of action for quashing the FIR.” _____________ Page No.9/12 https://www.mhc.tn.gov.in/judis W.P.No.25661 of 2019 and W.M.P.Nos.25148 and 25149 of 2019
12. Similar view is expressed by another Learned Judge of this Court in Ajay Kumar Bishnoi -vs- The State Rep.by Inspector of Police, J-2, Adyar Police Station, Dr.Muthulakshmi Road, Indira Nagar, Adyar, Chennai, reported in MANU/TN/2188/2021, which incidentally by the very same petitioner. In that case, the Learned Judge, in paragraph No.21 has succinctly concluded that, “21. In the present case except for the fact that the petitioner is having his residence at Chennai, there is no other cause of action that has arisen within the jurisdiction of this Court. Almost all the major events have taken place only within the jurisdiction of New Delhi. Even the registered office of the Company in which the petitioner is a Director, is situated at New Delhi. All the transactions had taken place in New Delhi and even the earlier writ petitions were filed by the petitioner seeking to quash the FIR only before the Delhi High Court. In fact, the FIR was quashed for the co accused only by the Delhi High Court.”
13. This Court, therefore, hold that the Writ Petition to declare F.I.R registered by Police in Delhi is ill-conceived and not maintainable before this _____________ Page No.10/12 https://www.mhc.tn.gov.in/judis W.P.No.25661 of 2019 and W.M.P.Nos.25148 and 25149 of 2019 Court.
14. Hence, this Writ Petition is dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.
30.08.2022
Index :Yes
Speaking Order/Non-speaking Order
ari/bsm
To:-
1.The Inspector of Police, J-2, Adyar Police Station, Dr.Muthulakshmi Road,Indira Nagar, Adyar, Chennai 600 020.
2.The Inspector of Police,Represented by the Inspector of Police, Economic Offence Wing, Janakpuri Main Road, Near Janakpuri District Centre, Janakpuri, New Delhi, Delhi 110 058, India.
3.The Public Prosecutor, High Court, Madras. _____________ Page No.11/12 https://www.mhc.tn.gov.in/judis W.P.No.25661 of 2019 and W.M.P.Nos.25148 and 25149 of 2019 Dr.G.JAYACHANDRAN,J.
ari/bsm Pre-Delivery Order made in W.P.No.25661 of 2019 and W.M.P.Nos.25148 and 25149 of 2019 30.08.2022 _____________ Page No.12/12 https://www.mhc.tn.gov.in/judis