Delhi District Court
As Suryalakshmi Cotton Mills Ltd. vs . M/S. Rajvir Industries Ltd. & Ors, on 7 March, 2012
1
IN THE COURT OF MS. NAVITA KUMARI BAGHA, MM, NEW DELHI
CC No. 2/1/11
M/s Krrish Green Homes Pvt. Ltd. & Anr.
...... Complainant
VERSUS
Mr. N.D. Gupta & Ors.
....... Accused
ORDER:
1. Vide this order I shall dispose of the application of the complainant dated 17.08.2011 filed U/Sec.156(3) Cr.P.C. for registration of FIR against the accused persons.
2. The complaint U/Sec.200 Cr.P.C. was filed by the complainants against accused on 18.08.2011. The brief facts as narrated in the complaint are as follows: The complainant No.1 is a company incorporated and registered under the Companies Act, 1956 and is engaged in the business of real estate and presently having the following Directors Mr. Amit Katyal (complainant no.2), Mr. Satish Kumar Seth, Mr. Amit Kumar Bagra, Mr. Janendra Kumar Tyagi, Mr. Sangeev Lohani and Mr. Subhash Chand Gupta (accused no.2). Accused no.1 Mr. N. D. Gupta is the Auditor of complainant no.1 company since its incorporation and has been responsible for keeping the accounts, preparing balance sheets, filing returns under the Companies Act, Income Tax Act, etc. Several blank cheques signed by authorized signatories of the complainant no.1 are always in the custody of the accused no.1. Accused no.1 is also discharging his duties as an Auditor of M/s Brahma City Private Ltd. since 2010. Accused no.1 and 2 are relatives as the wife of accused no. 2 is sister of accused no.1. The complainant no.1 was initially incorporated and registered under the name and style of M/s Brahma Homes Pvt. Ltd in the year 2010 and since then the company is having a 2 bank account no. 04822320000465 with HDFC Bank at Anand Lok Branch and Mr. Subhash Chand Gupta (accused no.2) is a signatory of this bank account of complainant no.1. In April, 2010, Mr. Amit Katyal (complainant no.2) was appointed as Director of the complainant no.1. At the request of accused no.1 and accused no.2, the complainant no.2 in January, 2011 signed two blank cheques i.e. cheque nos. 249028 and 249029 for the purpose of paying TDS and Advance Tax. As the complainant no.2 was not signatory of the abovesaid bank account, the accused no.1 and accused no.2 also took signatures of the complainant no.2 on relevant papers to be submitted with the bank in order to make him a signatory. In or around April, 2011, the complainant no.1 after taking control of the company realized that though the accused no.2 was holding only about 10% shares but was maintaining full control over the bank account being the sole signatory and was not submitting the details of the expenditure made under his signatures. Accordingly, the complainant no.1 called upon accused no.2 to submit details about the expenditure made alongwith bank statements, but despite several reminders from the complainant no.1, the accused no.2 failed to provide the necessary details and the Board of Directors of complainant no.1 unanimously resolved on 09.05.2011 to close the bank account no. 04822320000465 and a letter to this effect was sent to the bank But to the utter shock and surprise of complainant, a letter was received from the bank stating that the accused no.2, being signatory of bank account, had asked the bank not to close the account. Thereafter on enquiry, the complainant no.2, found that he was not the signatory to the said bank account as the accused no.1 & 2 had not furnished the necessary documents with the bank. On finding out himself to be not a signatory of bank account, the complainant no.2 made several requests to accused no.2 to return back all the cheques signed by him for the purposes of TDS, Advance Tax, etc. and also called him upon to furnish all the books of accounts of the complainant company. But instead of replying to the letters written by the complainant, accused no.2 on 04.07.2011 filed a company petition U/Sec.397/398 of Companies Act before the CLB, New 3 Delhi. The said petition is filed at the behest of Mr. Gulbir Singh Madan for ulterior motives and to put pressure on complainant no.2 to submit to unfair settlement. Complainant no.2 filed a complaint against accused no.1 and 2 to the EOW, Crime Branch on 26.07.2011 regarding the aforesaid cheques. The complainant was shocked to receive a legal notice under Sec.138 N. I. Act dated 29.07.2011 from one M/s. Gajraj Commercial Pvt. Ltd. falsely stating that the said two cheques bearing no. 249028 and 249029 were issued by the complainant towards repayment of a loan. The said cheques were given to accused no.1 for the purpose of TDS and Advance Tax and were not issued against any liability to M/s. Gajraj Commercial Pvt. Ltd. and thus, the accused persons entered into a conspiracy and have committed criminal breach of trust by using the cheques contrary to the arrangements between the complainant and the accused. Since the two cheques were signed by complainant no.2 for the specific purpose of TDS and Advance Tax and the same were handed over by accused no.1 and 2 with dishonest and malafide intention to Mr. Gulbir Singh Madan, Director of M/s. Gajraj Commercial Pvt. Ltd., hence, they have committed criminal breach of trust punishable U/Sec.406/408 IPC. Since, the accused persons have conspired to commit above mentioned offences, they have also committed offence U/Sec.120B IPC. A complaint was lodged with EOW by the complainant but no action was taken by the police.
3. I have heard the arguments on application of the complainant filed U/Sec.
156(3) Cr.P.C. from counsel for complainant and perused the record. This complaint case was initially filed in the Court of Ld. ACMM01 and was transferred to this Court vide order dated 20.12.2011 of Ld. ACMM01. Prior to the transfer of this matter, the transferor Court had called Action Taken Report from the EOW and on a number of occasions the Action Taken Reports were filed by the EOW stating therein that the enquiry was in progress and further time was required to finalize the same. The counsel for 4 complainant has prayed for ordering of registration of FIR while placing reliance upon the judgment of Hon'ble Supreme Court delivered in case title as Suryalakshmi Cotton Mills Ltd. Vs. M/s. Rajvir Industries Ltd. & Ors, 2008 (1) AD (Cr.)(SC) 429 and has argued that the cheques in question were entrusted to accused no.1 and 2 for the specific purpose of TDS and Advance Tax and by using the said cheques for some other purpose, the accused persons have committed the offence of criminal breach of trust U/Sec.406 IPC. The facts of the abovesaid case are similar to some extent to the facts of the present case. In the abovesaid case also the cheques were issued by the appellant in blank for specific purpose to the accused but later on disputes arose between the parties and the accused persons misappropriated the same and used them for the purpose for which they were not handed over and when the complainant filed a complaint before the Court, the Court of XI Addl. Chief Metropolitan Magistrate, Secunderabad, passed order for registration of FIR. The said order of FIR was set aside and FIR was quashed by the Hon'ble High Court on the ground that ingredients of offences U/Sec.406/420/460 IPC were not made out and that the complaint was filed for registration of FIR only to preempt the accused from filing a complaint U/Sec.138 N.I. Act. The appellant challenged the said order of Hon'ble High Court before the Hon'ble Supreme Court and the Hon'ble Supreme Court set aside the order of the Hon'ble High Court and upheld the order of the XI Addl. Chief Metropolitan Magistrate, Secunderabad and observed that the Hon'ble High Court should have taken into consideration the fact that if the defence of the appellant is accepted in the criminal case U/Sec.138 N.I. Act, he would have no remedy to prosecute the accused again. It was held that to contend that the acquittal of the appellant would have been a springboard for filing the complaint, would not 5 be correct as nobody knows when the criminal case would come to an end and in a given situation, even it may become barred by limitation. The Hon'ble Supreme Court observed that it must also be borne in mind that the commercial expediencies may lead a person to issue blank cheques. It was held by the Hon'ble Supreme Court in this case, "A case for proceeding against the respondents under Section 406 has, in our opinion, been made out. A cheque being a property, the same was entrusted to the respondents. If the said property has been misappropriated or has been used for a purpose for which the same had not been handed over, a case under Section 406 may be found to have been made out. It may be true that even in a proceeding under Section 138 of the Negotiable Instruments Act, the appellant could raise a defence that the cheques were not meant to be used towards discharge of a lawful liability or a debt, but the same by itself in our opinion would not mean that in an appropriate case, a complaint petition cannot be allowed to be filed."
4. In the present case also as per the averments of the complainant the blank cheques in question were issued by complainant no.2 to accused no.1 and 2 for the specific purpose of TDS and Advance Tax, but they have used it for some other purpose with dishonest and malafide intention and thus in view of the abovesaid judgment prima facie a case U/Sec.406 IPC is disclosed in the present case. Since the offence U/Sec.406 IPC is a cognizable offence, so police was required to register FIR on the basis of the complaint lodged by the complainant. So accordingly the application of the complainant U/Sec. 156(3) Cr.P.C. is allowed and EOW is directed to register FIR in the present case and submit report on 25.05.2012.
(Announced in open Court on 07.03.2012) 6 (Navita Kumari) MM(ND)/07.03.12 7 CC No. 2/1/11 07.03.2012 Present : Counsel Sh. Moinuddin Khan for complainant.
Vide separate order the application of the complainant dated 17.08.11 filed U/Sec.156(3) Cr.P.C. is allowed and EOW is directed to register the FIR and to report on 25.05.2012. Copy of the order be sent to the EOW for compliance.
(Navita Kumari) MM(ND)/07.03.12