Delhi District Court
Sh. N. C. Bansal vs State on 3 March, 2015
IN THE COURT OF SHRI MANOJ KUMAR: ADDITIONAL SESSIONS
JUDGE4 (SOUTH), SAKET, NEW DELHI
Criminal Revision No. 1/15
Unique ID No.: 02406R0008912015
In the matter of:
Sh. N. C. Bansal,
S/o Late Ram Kishan,
R/o S11, Prasad Nagar,
New Delhi5 ......Applicant
VERSUS
1. State
2. Sh. Avdesh Mittal,
S/o Sh. B. M. L. Mittal
R/o E94, Greater Kailash1,
New Delhi
3. Smt. Reena Mittal,
W/o Sh. Avdesh Mittal
R/o E94, Greater Kailash1,
New Delhi
4. Sh. Manoj Kumar, CA,
S/o Sh. Rajinder Prasad Gupta,
R/o FB20, Shivangi Enclave,
New Delhi110027 ......Respondents
Date of Institution : 09.01.2015
Date of Reserving order : 03.3.2015
Date of pronouncement : 03.3.2015
Criminal Revision No. 1/15 Page no. 1 of 11
ORDER :
This application under sections 399 and 400 of the Code of Criminal Procedure, 1973 (Cr.P.C.), made by applicant N. C. Bansal (hereinafter referred to as 'the complainant') against respondents the State, Avdesh Mittal, Smt. Reena Mittal and Sh. Manoj Kumar, is directed against the order dated 28.10.2014, passed by the court of the Chief Metropolitan Magistrate, South, Saket, New Delhi, whereby, in complaint case no. 49/1/11 entitled N. C. Bansal v. Avdesh Mittal and others, an application under section 156 (3) of Cr.P.C., made by the complainant was dismissed and the learned Chief Metropolitan Magistrate chose to proceed with the complainant under section 200 of Cr.P.C.
The circumstances giving rise to the application are that on 08.08.2011, in the Court of the learned Chief Metropolitan Magistrate, the complainant made a complaint under sections 420, 406, 465, 467, 468, 471, 120B and 109 read with section 34 of the Indian Penal Code against the respondents no. 2, 3 and 4 with a view to take cognizance of the offences, and to summon, try and punish them for their having committed the said offences. In the said complaint, the complainant, inter alia, stated that in late 1996, the respondents no. 2 and 3 approached him and informed that they were Non Resident Indians, and were having a good and flourishing business in Dubai, UAE; that the respondents no. 2 and 3 also informed the complainant they were having good financial background and also involved Criminal Revision No. 1/15 Page no. 2 of 11 in the business of import and export; that the respondents no. 2 and 3 further represented to the complainant that there was a very huge demand of knitted fabric in Dubai, and for export purpose. they were desirous of setting up a unit of knitted hosiery fabric in India through which they would manufacture knitted hosiery fabric, and will export the same; that the respondents no. 2 and 3 represented and assured the complainant that they had also purchased lands, and had imported the machines from Italy in the name of their company Jersey Industries Limited, promoted by them, and by export of knitted fabrics a good amount could be earned in India; that the respondents no. 2 and 3 also informed and represented to the complainant that if he had joined the respondents no. 2 and 3, they would also make him as one of the director in the said company and would also give share in profit to him; that the respondents no. 2 and 3 asked the complainant to provide funding of Rs.50,00,000/ by which the complainant will get the directorship as well as the profit in the company; that initially the complainant was not interested in the offer and representation of the respondents no. 2 and 3, but when they regularly approached and represented to him, he agreed to provide/extent funds in the sum of Rs.50,00,000/ to the respondents no. 2 and 3 through one of his associate company namely, Future Consultant Limited, and accordingly, upon as induced by the respondents no. 2 and 3, he made the payments to Jersey Industries Limited, the company of the respondents no. 2 and 3, through an Criminal Revision No. 1/15 Page no. 3 of 11 agreement; that with effect from 28.01.1997, the respondents no. 2 and 3 appointed the complainant in their company M/s. Jersey Industries Limited; that, time to time, on the pretext of filing/submitting the documents with the Registrar of Companies, the respondents no. 2 and 3 also got signed cheques and papers from the complainant; that soon after becoming the director in the company, the complainant noted that way back in the year 1995, at an exorbitant price of more than Rs. 150 Lakh, the respondents no. 2 and 3 had imported obsolete machines, which were lying at the custom bonded warehouse to avoid the payment of customs duty; that on the said project, through professional expertise of the respondent no. 4, the respondents no. 2 and 3 also availed loan to the tune of Rs.72.17 lacs from UPFC, NOIDA; that the complainant was also made to sign the loan documents of UPFC as guarantor; that by accounting manipulation and juggleries, the money so borrowed, was transferred by the respondents no. 2 to 4 in the accounts of their other sister companies; that the loan was not repaid as scheduled and the complainant was used as a puppet for its repayment being a guarantor of the loan; that the complainant also came to know that one of his own property papers, which the respondents no. 2 and 3 had earlier taken on the pretext that they required the same for some drafting specimen purposes, had been misused by them and deposited with the UPFC as collateral security for taking loan, and the documents of the said loan are bearing forged signatures of the complainant, which were Criminal Revision No. 1/15 Page no. 4 of 11 forged by the respondent no. 4; that Jersey Industries Limited, in which the complainant was made one of the directors, was possessing two industries plots, one at NOIDA and another at Bhiwadi, Rajasthan; that the said company (Jersey Industries Limited) had taken loan from the UPFC, and charge was created upon its assets, but the respondents no. 2 to 4, in conspiracy with each other, sold out the plot at Bhiwadi, Rajasthan; that upon coming to know about the illegal intention of the respondents no. 2 to 4 in selling out the plot of Jersey Industries Limited at Bhiwadi, the complainant informed the government authorities that since there was a charge on the assets of the said company, and the nominee directors of other funding company namely, Future Consultant Limited never approved for sale of the assets of the said company, therefore, the respondents no. 2 and 3 had no right to sell out or transfer the said property; that upon coming to know about the said facts RIICO Limited called for the production of the minute books of Jersey Industries Limited, and the same were submitted by the respondents no. 2 and 3; that the said minute book was produced and the copy of the same was filed in order to show that the claim of the complainant and the nominee directors was false, and that the documents as claimed by the complainant were incorrect; that the respondents no. 2 and 3 in active conspiracy with each other and with the official of Bhiwadi Industrial Development Authority (BIDA), in gross violation of all legal requirements and the facts, hurriedly sold out the plot/property of the Criminal Revision No. 1/15 Page no. 5 of 11 company at Bhiwadi and pocketed the substantial amount of its sale proceed; that Future Consultant Limited filed a winding up petition against Jersey Industries Limited before the Hon'ble Delhi High Court and during the proceedings before the Hon'ble Delhi High Court, and to defeat the claim of the complainant, the respondents no. 2 to 4 filed forged and fabricated balance sheet, annexure, audit report of Jersey Industries Limited for the year ending on 31.03.1999. It is further stated in the complaint that the respondents no. 2 to 4 entered into conspiracy; dishonestly induced the complainant to part with substantial amount; created a false balance sheet, minute books, false declarations in government offices; committed forgery of valuable security; used forged documents as genuine; committed criminal breach of trust; and in committing the said offences intentionally aided each other and thus, have committed offences punishable under sections 420, 406, 465, 467, 468, 471, 120B and 109 read with section 34 of the Indian Penal Code, therefore, they be proceeded against. The prayer clause in the complaint reads as follows:
PRAYER It is therefore, most respectfully prayed before this Hon'ble Court that in view of the above mentioned facts and circumstances of the present matter, this Hon'ble Court may be pleased:
(i) To take cognizance against the accused persons and to summon, try and punish the accused persons for the commission of the above mentioned cognizable offences, in accordance with law.
(ii) To pass any other and further relief/order which this Hon'ble Court deems fit and proper in accordance with the facts & circumstances of the case so as to be in the interest of justice as well as of the complainant/petitioner.
Criminal Revision No. 1/15 Page no. 6 of 11 Alongwith the complaint, the complainant also made an application under section 156 (3) of Cr.P.C. with prayer to forward the complaint to the SHO, Economic Offences Wing (EOW), South for registration of first information report (FIR) and investigation as per law.
The learned Magistrate on 23.09.2014 heard counsel for the complainant in support of the application under section 156 (3) of Cr.P.C., and by order dated 28.10.2014 dismissed the said application and posted the matter for proceedings under section 200 of Cr.P.C. While dismissing the application under section 156 (3) of Cr.P.C., the learned Magistrate, inter alia, observed as follows : In view of this court, the allegations are not serious in nature in the sense that these have not affected the public at large. Further since the complainant has already placed on record number of documents obtained from different authorities to substantiate the allegations, he appears to be in position to prove the allegations. The transaction in question is very old, more than 15 years. Thus, the police investigation is not desirable. Accordingly, the application under section 156 (3) of Cr.P.C. is dismissed.
However, I take cognizance of the alleged offences and complainant may lead evidence.
Accordingly, put up for pre summoning complainant evidence on 22.01.2015.
Aggrieved by the said order dated 28.10.2014, as I have already observed, the present application was made on 09.01.2015.
I have heard counsel for the complainant and have gone through the record of the complaint case no. 49/1/11 entitled N. C. Bansal v.
Criminal Revision No. 1/15 Page no. 7 of 11 Avdesh Mittal and others, pending before the learned Magistrate.
Having drawn my attention on the contents of the application, the impugned order dated 28.10.2014 and the record of complaint case no. 49/1/11, pending before the learned Metropolitan Magistrate, it is submitted by counsel for the applicant that the impugned order suffers from illegality and has been passed without application of mind, therefore, the same be reversed and the application under section 156 (3) of Cr.P.C. be allowed. It is further submitted by counsel for the applicant that the learned Magistrate has erred in observing that the allegations are not serious in nature and thus, do not require police investigation. It is further submitted by counsel for the applicant that respondents no. 2, 3 and 4 having entered into a conspiracy have committed serious offences punishable under section 420, 406, 465, 467, 468, 471, 120B and 109 of the Indian Penal Code, and such serious offences require probe by the Economic Offences Wing of the Crime Branch of Delhi Police. It is further submitted by counsel for the complainant that since for collection of material evidence, the police aid is required, therefore, the application be allowed and the SHO, EOW be directed to register an FIR and to investigate the matter.
I have given my thoughtful consideration to the submissions made on behalf of the complainant.
Under section 397 of Cr.P.C., any Sessions Judge may call for Criminal Revision No. 1/15 Page no. 8 of 11 and examine the record of any proceeding before any inferior Criminal Court situate within his local jurisdiction for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Under the Cr.P.C., a Magistrate may take cognizance, inter alia, on a complaint made by an aggrieved person. Upon such complaint being made, the Magistrate, instead of proceedings under section 200 of Cr.P.C. may, in exercise of powers under section 156 (3) of Cr.P.C., forward such complaint to the officer incharge of the police station for registration of FIR and investigation as per law. Thus, in respect of a complaint both options are available with a Magistrate.
In the present case, after entertaining the complaint, the learned Magistrate called a report from police station concerned and considered the said report, wherein it was, inter alia, mentioned that the property of the complainant was mortgaged with his consent, and at the time of taking loan, the property at Bhiwadi was not asset of the company as it was sold on 04.08.1997.
Criminal Revision No. 1/15 Page no. 9 of 11 From the contents of the complaint it can also be discerned that the complaint has been made by Mr. N.C. Bansal in personal capacity although the main transactions were between Future Consultant Limited and Jersey Industries Limited. In the circumstances before him the learned Magistrate had two options namely, without taking cognizance of offences on the basis of the complainant, to forward the complaint to the SHO concerned; or after taking cognizance of offences on the basis of the complaint, to proceed under section 200 and subsequent provisions of Cr.P.C. The learned Magistrate, having taken into account the facts that the transaction was old, and the complainant was in possession of all the relevant documents, opted to proceedings under section 200 of Cr.P.C. The judicial discretion exercised by the learned Magistrate was in consonance with the scheme postulated by the Cr.P.C. There is no material on the record to indicate that the judicial discretion exercised by the learned Metropolitan Magistrate was either arbitrary or perverse.
After examining the record, in view of above discussion, I am of the opinion that there is no occasion to interfere with the discretion exercised judicially by the learned Magistrate. The application is without merit and, therefore, dismissed.
File be sent to the records. The record of the complaint case no. 49/1/11, called from the court of the learned Magistrate be sent back alongwith a copy of this order.
Criminal Revision No. 1/15 Page no. 10 of 11 Counsel for the complainant is directed to appear before the learned Chief Metropolitan Magistrate, South, Saket, New Delhi on 9.3.2015 at 2.00 pm. Pronounced in the open court (Manoj Kumar) on 3 of March, 2015 rd Additional Sessions Judge4 South District:Saket Courts:
New Delhi Criminal Revision No. 1/15 Page no. 11 of 11