Karnataka High Court
Annapurna Bio-Proteins Pvt. Ltd., vs State Of Karnataka, on 18 December, 2015
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 18th day of December 2015
Before
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
Criminal Petition No.100649/2015
C/w Crl. P. No.100585/2015
In Crl. P. No.100649/2015
Between:
1. Sai Annapurna Bio-Proteins Pvt. Ltd.,
A Company Registered Under
Indian Companies Act, Having its
Registered Office at Teachers Colony,
Patamata, Vijayawada - 520 008.
Dist: Krishna, State of Andhra Pradesh.
Reptd., By Its Director,
Vemuri Shyam Prasad.
2. Vemuri Shyam Prasad,
Son of Shri. Vemuri Subhash Chandra Bose,
Aged About: 45 Years,
R/At: D.No. 59/A-9-4,
Teachers Colony, Vijayawada-520 008.
3. Vishvek Bio-Proteins Pvt. Ltd.,
A Company Registered Under
Indian Company Act, Having its
Registered Office at: No.FF-I, 4th Floor,
Behind La-Paz Garden,
Vasco-Da-Gama, Goa.
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4. Kumar. Vishnu Mahant,
Director, Vishvek Bio-Proteins Pvt.Ltd.,
A Company Registered Under
Indian Company Act., Having its
Registered Office, at: No.FF-I, 4th Floor,
Behind La-Paz Garden,
Vasco-Da-Gama, Goa.
5. Shri Dinesh Gopinath Bandekar,
Director, Vishvek Bio-Proteins Pvt.Ltd.,
A Company Registered Under
Indian Company Act., Having its
Registered Office at: No.FF-I, 4th Floor,
Behind La-Paz Garden,
Vasco-Da-Gama, Goa.
6. Winstreet Impex Pvt., Ltd.,
A Company Registered Under
Indian Companies Act., Having its
Registered Office at: No.36-11-7, Santhinagar,
Moghal Raj Puram, Vijayawada 520 010.
Andhra Pradesh, Represented By Its
Principal Officer and Managing Director.
7. Smt. Sajja Shobha Rani,
W/O. shri Sajja Radhakrishna,
Aged About: 58 Years,
Proprietor, Vibha Enterprises,
No.31/32/81/B-6, Arcade Dhabha Gardens,
Vishakhapatnam-530 040.
State Of Andhra Pradesh.
8. Shri Sajja Radha Krishna,
S/O. Late Shri Bhogeshwara Rao,
Aged About: 62 Years,
Proprietor, Keerthi Enterprises
Havings Its Functional Office
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At No. 31/32/81/B-6,
Arcade Dhabha Gardens,
Vishakhapatnam 530 040.
State: Andhra Pradesh.
9. Mr. Vemuri Subhash Chandra Bose,
S/O. Late Vemuri Krishna Murthy,
Aged About: 70 Years, R/At: D.No. 59/A-9-4,
Teachers Colony, Patamata,
Vijayawada-520 008, Dist: Krishna.
State Of Andhra Pradesh.
10. Shri Anil Dattatreya Patil,
S/O. Dattatreya Patil,
Aged About: 56 Years,
R/At: B/2, S-4, Zuwari Complex,
Baina, Vasco-Da-Gama, Goa-403 802.
11. Shri. Vipinchandra Satardekar, Manager,
Vishvek Bio-Proteins Pvt. Ltd.
A Company Registered Under
Indian Company Act, Having its
Registered Office at: No.FF-I, 4th Floor,
Behind La-Paz Garden,
Vasco-Da-Gama, Goa. ...Petitioners
(By Sri A S Patil & Sri Mahadev Deshak, Advocates)
And
1. State of Karnataka,
Represented by the Station
House Officer, Karwar Town
Police Station, Karwar.
Rep. By its State Public Prosecutor,
High Court of Karnataka, Dharwad.
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2. The Karnataka Fisheries
Development Corporation,
A Wholly owned Enterprise of
Government of Karnataka,
Having Its Registered Office
At Hoyge Bazar, Mangaluru-575 001.
Represented by its Managing Director. ...Respondents
(By Sri Raja Raghavendra Naik, HCGP for R1
Sri J.S.Shetty, Advocate for R2)
This criminal petition is filed under Section 482 of Cr.P.C.
seeking to quash the fist information report Karwar Town P.S. in
Crime No.23/2014 pending on the file of the Prl. Civil Judge
(Sr.Dn.) & CJM Court, Karwar, for the offences punishable under
Section 406 read with 34 of IPC.
In Crl. P. No.100585/2015
Between
1. Vemuri Shyam Prasad
Son of Shri. Vemuri Subhash Chandra Bose,
Aged About: 45 Years, R/At: D.No. 59/A-9-4,
Teachers' Colony, Patamata,
Vijayawada-520 008.
State Of Andhra Pradesh.
2. Smt. Sajja Shobha Rani,
Wife of Shri. Sajja Radhakrishna
Aged About: 58 Years,
Proprietor, Vibha Enterprises
No.31/32/81/B-6,
Arcade Dhabha Gardens,
Vishakhapatnam 530 040
State of Andhra Pradesh.
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3. Winstreet Impex Pvt., Ltd.,
A Company Registered Under
Indian Companies Act, Having
Its Registered Office At
No. 36-11-7, Ground Floor,
First Line, Santhinagar,
Moghal Raj Puram, Vijayawada-520 010
State Of Andhra Pradesh.
4. Smt. Vemuri Annapurna
W/o of Subhash Chandra Bose,
Aged About: 62 Years,
Director, Winstreet Impex Pvt., Ltd.,
A Company Registered
Under Indian Companies Act
Having Its Registered Office
At No. 36-11-7, Ground Floor,
First Line, Santhi Nagar,
Moghal Raj Puram, Vijayawada-520 010
State of Andhra Pradesh.
5. Mr. Vemuri Subhash Chandra Bose
Son of Late Shri. Vemuri Krishna Murthy,
Aged About: 70 Years,
R/At: D.No. 59/A-9-4,
Teachers Colony, Patamata,
Vijayawada-520 008.
Dist: Krishna, State of Andhra Pradesh.
6. Shri. Sajja Radha Krishna
S/O Late Shri. Bhogeshwara Rao,
Aged About: 62 Years,
Proprietor, Keerthi Enterprises,
Having Its Functional Office
At No. 31/32/81/B-6,
Arcade Dhabha Gardens,
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Vishakhapatnam 530 040
State Of Andhra Pradesh. ...Petitioners
(By Sri A S Patil and Sri Mahadev Deshak, Advocates)
And
1. State Of Karnataka
Represented By
The Station House Officer,
Karwar Town Police Station,
Karwar, Rep. By its
State Public Prosecutor,
High Court of Karnataka, Dharwad.
2. Vemuri Krishna Prasad,
S/O. Shri. Vemuri Subhash Chandra Bose,
Aged About: 42 Years,
R/At: D.No. 54-20-15A,
Flat No. 302, B Block,
Potluri Residency,
Road No-2, CTO Colony,
Auto Nagar, Vijayawada-520 008
Dist: Krishna, State of Andhra Pradesh. ...Respondents
(By Sri Raja Raghavendra Naik, HCGP for R1
Sri V.M.Sheelavant, Advocate for R2)
This criminal petition is filed under Section 482 of Cr.P.C.
seeking to quash the fist information report Karwar Town P.S. in
Crime No.175/2014 pending on the file of the Prl. Civil Judge
(Sr.Dn.) & CJM Court, Karwar, for the offences punishable under
Sections 406, 465, 467 and 468 of IPC.
These petitions coming on for Admission having been
heard and reserved for Orders on 03.11.2015 this day, the Court,
pronounced the following:
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ORDER
Crl.P. No.100649/2015 is filed by the petitioners/accused under Section 482 of the Code of Criminal Procedure seeking to quash the first information report, Karwar Town P.S., in Crime No.23/2014 pending on the file of the Principal Civil Judge (Sr. Dn.) & CJM Court, Karwar, for the offences punishable under Section 406 read with Section 34 of IPC.
2. Crl.P. No.100585/2015 is filed by the petitioners/accused under Section 482 of the Code of Criminal Procedure seeking to quash the first information report, Karwar Town P.S., in Crime No.175/2014 pending on the file of the Principal Civil Judge (Sr. Dn.) & CJM Court, Karwar, for the offences punishable under Section 406, 465, 467 and 468 of IPC.
3. Since the allegations in the complaints pertaining to the above two cases are inter-connected with each other and the learned counsel appearing for the petitioners in both the petitions also submitted common arguments in respect of both the :8: petitions and since common questions of law and facts are involved in both the petitions, they are taken up together for final disposal by this common order.
4. The brief facts of the case of the petitioners are that the complainant the Karnataka Fisheries Development Corporation (hereinafter referred to as 'KFDC' for short) had entered into a contract with accused No.1 that is a private limited company and accused No.2 is its Director, accused No.3 is also a private limited company and accused Nos.2, 4 and 5 are its directors, accused No.6 is a private limited company and accused No.2 and Vemuri Annapurnamma are its Directors and accused no.7 is the mother- in-law of accused No.2 and she is the propreitrix of 'Vibha Enterprises'. It is alleged that the KFDC is the owner and in control of a fish meal plant situated at fishing harbor in Baithkul, Karwar, having machineries, equipment, building, plant etc. The KFDC, with an intention to run on license the said fish meal plant with machineries for annual licence fee called for bid and the accused No.1-company being the highest bidder succeeded in :9: getting the same. Accordingly, the accused No.2 viz., Mr. V.Shyam Prasad, representing himself as Managing Director of Sai Annapurna Bio Proteins Pvt. Ltd., the accused No.1 company entered into a written agreement with the KFDC on 19.09.2007 to run on licence the aforesaid fish meal and oil plant on payment of annual licence fee of Rs.2,00,00,707/-. It is alleged that from the beginning the accused company is a defaulter in payment of licence fee. In spite of demand notices, accused No.1 company and its directors deliberately and intentionally failed to pay the due amount on false excuses. Hence, the KFDC invoked the bank guarantee furnished by the 1st accused company. Even after invoking bank guarantee a sum of advance licence fee and security deposit Rs.8,07,88,108/- is due to KFDC towards licence fee as on 31.12.2013. As per the agreement entered into between the KFDC and the 1st accused company, the 1st accused company was prohibited from assigning, subletting or handing over the said premises to anyone without the written consent of the KFDC. It is alleged that contrary to the said agreed terms stated supra, by : 10 : deed of sale, transfer-cum-assignment dated 01.12.2010, Sai Annapurna Bio Proteins Pvt. Ltd., i.e., the first accused company headed by accused No.2 delivered the physical possession of the said fish meal plant along with all machineries, equipment, water tankers, goods vehicles, furniture's fitting fixture, computers etc. to accused No.4 viz., Vishvek Bio-Proteins Pvt. Ltd., the fact of alienation of the said plant to Vishvek Bio-Proteins Pvt. Ltd., is further strengthened from the letter dated 12.09.2013 written by State Bank of Hyderabad, the bankers of the 1st accused company. From the facts stated supra there are materials such as various invoices raised by accused No.3 amounting to lakhs of rupees and the invoices disclose the address of Vishvek Bio-Proteins Pvt. Ltd., as Fishing Harbor, Baithkul, Karwar. Thus, huge amount is outstanding from accused No.1 to the KFDC and without making payment, the accused Nos.1 and 2 alienated the same to accused No.3 for a huge consideration of rupees two crores and thereby made unlawful gain and accused dishonestly disposed of the fishing plant and machinery in violation of the agreed terms of the : 11 : agreement, thereby caused criminal breach of trust. It is further alleged that there is a strong reason to suspect that accused No.3 is a company dishonestly floated by accused No.2 in connivance with accused No.3 and accused No.4, which is evident from the fact that though accused No.2 was not its director at the time of incorporation but later made as a Director of the said company. The further allegations are that the products manufactured at the said KFDC were sold in the name of accused NO.3 and through Vibha Enterprises, a proprietorship concern was floated in the name of accused No.7, the mother-in-law of accused No.2 and Winstreet Impex Pvt. Ltd., a company floated by accused No.2. Accused No.2 hatched a conspiracy with accused Nos.4, 5 and 7 and all of them acted dishonestly and siphoned huge amount. The accused No.2 floated these company in order to cheat the KFDC. Accordingly, a complaint was lodged as per Annexure-A.
5. The petitioners have sought for quashing the FIR on the ground that there is no criminality involved in any act alleged by the complainant in this case. The entire allegations are about the : 12 : sale of assets of the complainant which resulted in criminal breach of trust and violation of contractual obligation under deed of lease dated 19.09.2007. the said allegation is not proved. The 1st petitioner who invested crores of rupees and set up the plant and purchased the vehicles and commenced the business. The minutes of meeting between the informants accused No.1 indicates this fact. The contractual obligation revolved around the payment of licence fee and complainant has no control or powers of superintendence nor accountability over and from accused No.1. Vishvek Bio-Proteins Pvt. Ltd. accused No.3 is a entity created under Company Law as an internal arrangement of the first company and also a sister concern for convenience of management that is in full knowledge of the informant. Non- payment of licence is entirely a different subject. Where civil liability is there and amount is sought to be recovered through civil courts at Mangalore and when the relationship between the accused No.1 and the informant is that of landlord and tenant. The nomenclature used in the documents may be at variance. At : 13 : the most, it can be a case of sub-lease for which the informant could not import criminal liability and could not have initiated any proceedings at all. The first information report is basically malicious. The comparison with the complaint lodged by the brother of second accused and one in this case are verbatim in its intentions and goal. Similar complaint has been lodged by the brother of the second accused at Vijayawada at the earliest point of time and the same is also pending adjudication. Where civil enforcement is available, three criminal prosecutions have been launched and unconnected people were arrested, bank accounts have been seized of companies, which has no contractual obligations with the 2nd respondent. Brother of the second accused herein forged signature of father and brother who were directors of the company and inducted about 10 directors at the registered office of the company at Vijayawada and the criminal case was booked against the said brother of the second accused herein in Crime No.760/2010 pending on the file of the III Additional Chief Metropolitan Magistrate at Vijayawada. The : 14 : company Sai Annapurna Bio Proteins Pvt. Ltd., was in the hands of the brother of the second accused till September 2014. All the action of the said brother of the second accused is in order to wreck vengeance against these family members and those stood by family are victim of fraudulent transaction including of induction of Directors that was set aside by the Company Law Board in proceedings No.C.P.No.12/2012 at Chennai. Then the complainant moved the High Court of Andhra Pradesh in Company Appeal No.6/2013 for recording compromise and a joint memo was finalised. The proceeding was concluded on 15.09.2014. On the day the compromise was finalised i.e., on 2nd September 2014, the ego of brother of the second accused was hurt and gets one more false complaint registered in Crime No.175/2014 for the offences under Sections 465, 467, 468, 471, 406 of the Indian Penal Code. The complaint does not make out any crime. A complaint has already been lodged in Vijayawada that is registered in Crime No.80/2013 with Vijayawada City Police and suppressing this fact, the present complaint is lodged at : 15 : the behest of the brother of the complainant who should be accused who claimed to be holder of 97% of shares of company but conveniently left out. The brother of the 2nd accused is the signatory to the deed of sale-cum-assignment at Annexure-L. This is also evident from the joint memo filed by the informant before the High Court of Judicature of Andhra Pradesh, at Hyderabad. The KFDC has filed a suit in O.S.No.60/2012 on the file of the Senior Civil Judge at Mangalore wherein the 1st defendant is company under the name Sai Annapurna Bio Proteins Pvt. Ltd., represented by the informant in this case Shri Krishna Prasad, the Managing Director and not this second accused. This exposes the clandestine arrangement of the second respondent and the brother of the second accused in launching the present prosecution. However, the very same informant in this case has lodged criminal case for the offence punishable under Section 406 read with Section 34 of the Indian Penal Code joining hand with the police department and Fisheries Department and foisted the false case. Similarly, a suit in O.S.No.7/2015 is also filed on the : 16 : file of the Civil Judge at Mangalore. The complaint is emergence of unholy union of governmental agencies with private individual who intends to wreck vengeance against his own family members. The selectivity of the accused persons are those person who have no privity of contract of any nature with the 2nd respondent. The lease amount annually fixed at Rs.2,00,00,707/- is not fixed but available as there were proportional cuts mutually agreed in lease amount that were contingent. These deductions were never made and the 2nd respondent acts as mouthpiece of the KFDC. Therefore, the KFDC cannot have any claims over profits or other monetary transactions. Hence sought to quash the proceedings.
6. In the connected petition Crl. P. No.100585/2015, respondent No.2 in the said petition, who is the brother of petitioner/accused No.2 in Crl.P. No.100649/2015, is the complainant in this petition. The said complaint was registered against the petitioners in the said petition for the offences under Section 465, 467, 468, 471, 406 of IPC. The allegations in the : 17 : complaint are almost similar to the complaint lodged by the respondent No.2-KFDC in Crl.P. No.100649/2015 and hence, they need not be referred to again.
7. Respondent No.1 filed the objection statement on behalf of the State contending that accused No.1-Sai Annapurna Bio Proteins Pvt. Ltd., Vijayawada, Andhra Pradesh, on 19.09.2007 entered into an agreement of lease and licence in respect of fish meal plant, Baithkul belonging to KFDC. Accused No.1 failed to submit entire licence fee and in violation of agreement without intimating the complaint with an intention to defraud transferred the fish meal and oil plant in connivance with the other accused entered into an agreement on 01.12.2010 in favour of accused No.3-Vishvek Bio-Proteins Pvt. Ltd. A Special investigation team was formed as it involved investigation into companies those which are situated outside the state i.e., Goa, Andhra Pradesh, Tamilnadu. The papers revealed that the complainant had already instituted civil proceedings against the present accused and filed original suit before the Civil Court, Mangalore. The Investigating : 18 : Officer enquired 43 witnesses and the Investigating Officer who conducted preliminary enquiry has obtained documents from KFDC pertaining to this case and also the important documents pertaining to the production details of fish meal and fish oil at KFDC Unit from 02.10.2008 to 31.12.2012. The bank statements of the accused companies have also been obtained. Documents pertaining to company registration of the accused-companies have been obtained from the concerned Registrar of Companies, sales tax returns were obtained from concerned office of the Commercial Tax Department. Documents pertaining to sealing of the accused company by the Karnataka State Pollution Control Board. Documents field by the accused in O.S.No.263/2012 on the file of Civil Judge Court Junior Division, Karwar are also obtained. As the instant case involved cheating of crores of rupees to the State Government, IGP Western Range formed a special team and on 16.09.2014 ordered for the investigation of the case under the direction of Dy.S.P. attached to this office. The various bank accounts pertaining to the accused and their respective : 19 : banks situated at Vishakapattanam and Vijayawada are freezed till further orders of the Hon'ble Court and financial transactions have been withheld. Out of 12 accused, 8 accused have already been enquired and relevant information pertaining to the case have been obtained. Relevant documents have been seized from concerned offices at Chennai, Vijayawada, Hyderabad and statements were recorded in this regard. After conducting detailed investigation, the charge-sheet came to be finalised and the same is sent for scrutiny and during investigation the witnesses have stated only against the accused and none others. Looking to the statement of the witnesses, it is found that the accused are responsible for commission of the crime. The investigation goes to show the modus operandi of the accused in creating fictitious companies and siphoning income generated by government owned fish meal plant, Baithkul, to other companies owned by them. The entire investigation pointed towards involvement of accused. The accused are close relatives and confidants. Accused No.1 having taken the fish meal plant from KFDC stealthily : 20 : transferred it to a company i.e., Vishvek Bio-Proteins Pvt. Ltd., but the said company is only a concern name for illegal activities of accused no.1. The accused also created Sai Annapurna Bio Proteins Goa Private Limited which is deceptively similarly names as that of accused No.1 company. This is done to defraud the directors of their own company. The bank accounts of the accused companies are seized. The accused have approached this Court but withdrawn the said criminal petitions. At present the trial Court has allowed the applications to defreeze the account on the condition that they shall give bank guarantee and indemnity bond. The accused have also created two firms one Keerthi Enterprises and another Vibha Enterprises. These two companies are made to shield the transaction of Vishvek Bio-Proteins which has the address showing KFDC, Baithkul Fish Meal Plant and phone numbers of Sai Annapurna. The Investigating Officer has finally completed the investigation and filed a final report. The crime involved verification of huge paper and the crime came committed in four states i.e., Goa, Karnataka, Andhra Pradesh : 21 : and Tamilnadu. The amount of information collected runs into thousands of pages. Hence, sought to dismiss the petitions.
8. Heard the arguments of the learned counsel appearing for the petitioners in respect of both the petitions and also the learned counsel appearing for respondent No.2 in Crl.P.No.100585/2015 and also the learned Government Pleader.
9. Learned counsel for the petitioners submitted that there was a licence agreement between the KFDC and accused No.1 in Crl.P. No.100649/2015 in respect of fish meal plant owned by the KFDC and that the plant and machinery of the said plant does not belong to the complainant and, in this connection, learned counsel drew the attention of this Court to the document at page No.88 of the petition which is produced as Annexure-D and also, the document at page No.185 produced as Annexure-M and therefore, he submitted that this itself makes clear that the petitioners/accused have not at all sold or transferred or alienated the plant and machinery in violation of the terms of the lease : 22 : agreement. He further made the submission that the main allegation of the complainants in both the complaints is that there is sub-letting of the plant, but he submitted that false allegations are made in this regard, the accused have never sublet the plant and machinery in favour of anybody else. In this connection, learned counsel submitted that only draft was prepared to let out which ultimately did not materialise and it was dropped. Counsel also made the submission that the allegations made in para No.12 of the complaint filed by the KFDC are totally false and far from truth. It is also his submission that perusing the entire materials placed on record, there is no material to show that accused/petitioners in both the petitions have committed the alleged offences. It is further submitted that even for the sake of arguments and appreciation without admitting that the lease amount or the licence fee is not due and not paid as per the agreed terms, the transaction between the petitioners with the KFDC is purely civil in nature and if there is any violation of the terms and conditions of the lease agreement in respect of the fish : 23 : meal plant, civil remedy is open to the complainant-Corporation and no criminality is involved in this case. Learned counsel submitted that the complainant-Corporation has already filed a civil suit in O.S. No.60/2012 on the file of the Senior Civil Judge at Mangalore and hence he submitted that when the civil suit has already been filed in respect of the said transaction and the allegations, the question of filing criminal complaint will not arise at all and it is abuse of process of Court. With regard to the alleged default in making payment of the licence fee, learned counsel submitted that why there was default is clearly explained in the resolution passed in the Meeting of Board of Directors of KFDC held on 10.07.2009 and in this connection also, learned counsel for the petitioner drawn the attention of the Court to Annexure-E at page No.89 of the petition. He made further submission that the petitioners made all the payments as per the resolution-Annexure-E and there are no dues. Learned counsel also drew the attention of this Court to Annexure-C at page No.49 and clause No.19 at page No.56 and also to the : 24 : Annexure-F at page No.92. Referring to the same, the learned counsel submitted that these documents also clearly go to show that the alleged offences were not at all committed by the petitioners. He also made the submission that the complaint is filed by the KFDC at the behest of the petitioner's brother, who is respondent No.2 in the connected petition in Crl.P.No.100585/2015 and not on their own. Learned counsel also drawn the attention of this Court to the order passed by the Company Law Board, as per Annexure-G at page No.116 and at page No.124 and page No.140. Learned counsel submitted that multiple FIRs cannot be lodged in respect of the same alleged offence. Learned counsel further submitted that in the company Appeal No.6/2013, a joint memo was filed and brother of the accused No.2 in Crl.P.No.100649/2015 viz., Mr. Vemuri Krishna Prasad is also a signatory to the joint memo wherein he has undertaken that he will not interfere in the conduct of day-to-day affairs of the Karwar Unit of Sai Annapurna Bio Proteins Pvt. Ltd., Learned counsel submitted that lodging of the complaint by : 25 : Vemuri Krishna Prasad, the respondent No.2 in Crl.P. No.100585/2015, is completely contrary to the joint memo filed before the High Court of Judicature of Andhra Pradesh at Hyderabad, in the said company appeal. He submitted that the said joint memo was filed after said Vemuri Krishna Prasad filed the complaint which is totally with malafide intention and it is against his own undertaking given before the Court in the company appeal. Learned counsel further submitted that Vemuri Krishna Prasad also filed a suit in O.S. No.7/2015 on the file of the Civil Judge (Jr. Dn.) at Mangalore. It is his further submission that sub-leasing cannot be considered as a criminal breach of trust. Learned counsel submitted that the possession of licence is not recognized and hence there cannot be transfer by transfer of licenceship. It is also his submission that the plant was closed in 2010 but even then, false allegations are made in the complaint that even in 2014 also the plant was running. Learned counsel further submitted that perusing both the complaints there is no mention that any part of transaction having taken place at Karwar : 26 : and hence, the Karwar Courts have no territorial jurisdiction to entertain the complaint which aspect is completely ignored by the Courts below. Learned counsel also made the submission that looking to the document at Annexure-M, the contents of the complaints are totally false. It is also his submission that in the complaints filed there is no whisper as to who has forged which documents. Though it is submitted that charge-sheet is filed before the Court below, the same is not yet accepted. Learned counsel submitted that delivery challans issued at various places were wrongly read as invoices. Hence, he made the submission that perusing the entire materials on record, the complainants were not able to make out that the petitioners have committed any of the offences. The materials clearly go to show that the transaction is purely of civil in nature and filing the complaint is abuse of process of the Court. Hence, the learned counsel submitted that the order of the registration of the complaint and taking cognizance against the present petitioners by the Court : 27 : below is totally illegal and not sustainable in law and hence submitted to allow the petitions and quash the proceedings.
10. Per contra, learned counsel Shri J.S.Shetty for respondent no.2 in Crl. P. No.100649/2015 submitted that the investigation team completed the investigation and filed the charge-sheet, voluminous documents have been collected during the investigation running into thousands of pages, they are yet to be considered by the concerned Court. It is also his submission that only FIRs are challenged in these proceedings and when the investigating officer has collected sufficient material and filed the charge-sheet, the FIRs cannot be quashed. Learned counsel further submitted that it is not only the sub-letting of the plant given under the lease by the KFDC but even there is sale of the plant under the sale deed. Counsel also submitted that simply because a civil suit is filed, the petitioners cannot be absolved from criminal liability and there is no bar for initiating the criminal proceedings. Hence, he submitted that there is no merit in the petitions and the same be dismissed.
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11. Learned Government Pleader also submitted that looking to the nature of allegations and as the alleged transaction of transfer and floating of the companies in other states also i.e., Goa, Andhra Pradesh and Tamilnadu, a special investigation team was constituted to investigate the matter. He also made the submission that high profile persons are involved in this case and by floating so many companies, petitioners have siphoned the money causing monetary loss to the state exchequer. Hence, he submitted that the petitioners have not made out the case for quashing the criminal proceedings. The FIRs and the materials placed on record clearly makes out a prima facie case against the petitioners. Hence, he submitted to dismiss the petitions.
12. Learned counsel Sri V.M.Sheelavant appearing for respondent No.2 in Crl.P.No.100585/2015, during the course of his arguments, submitted that FIR is not an encyclopedia; it is a gist to set the criminal law into motion and all further details will have to be collected only during the course of investigation. He : 29 : also made the submission that only the FIRs have been challenged in these proceedings, but as the investigating officer has already completed the investigation and filed charge-sheet, under the guise of quashing the FIRs, the Court cannot quash the entire charge-sheet which is not permissible under Section 482 of the Code of Criminal Procedure. He also made the submission that all relevant documents are not produced by the petitioners and the some of the important material documents were suppressed by the petitioners. He also submitted that the FIRs have been submitted to the concerned Court which are required to be verified and the Court has to take a decision in the matter. Under these circumstances, the FIRs cannot be quashed. Hence, he submitted that there is no merit in the petition and the same be dismissed.
13. In reply, the learned counsel for the petitioners submitted that there is no whisper in the complaints about what is the claim in the suit. He also submitted that no explanation has : 30 : been offered regarding the jurisdiction to entertain the complaint at Karwar Court.
14. In support of his arguments, learned counsel for the petitioners relied upon the following decisions, which he has filed along with a memo dated 03.11.2015.
1) T.T.Antony Vs. State of Kerala AIR(SC)-2001-0-2637
2) Prashant Bharti Vs. State (NCT of Delhi) reported in (2013) 9 SCC 293
3) B.Ranganathan Vs. State and Others reported in 2003 Cri.L.J.2799
4) Amitbhai Anilchandra Shah Vs. The Central Bureau of Investigation and Another (Writ Petition (Criminal) Nos.149 of 2012 and 5 of 2013 decided on 08.04.2013)
5) U.Dhar Vs. State of Jharkhand AIR (SC)-2003-0-974
15. The learned Government Pleader in support of his contentions relied upon the following decisions filed along with a list of authorities dated 03.11.2015.
1) State of Haryana and others Vs. Ch.Bhajan Lal and Others reported in AIR 1992 SC 604
2) Vijayander Kumar and Others Vs. State of Rajasthan : 31 : and Another reported in (2014) 3 SCC 389
3) Rajiv Thapar and Ors. Vs. Madan Lal Kapoor reported in 2013 Cri.L.J. 1272
16. I have perused the pleadings of the parties, documents produced along with the petition and also the documents produced by the respondent and the decisions relied upon by the learned counsel on both sides, which are referred to above.
17. It is an undisputed fact that there is an agreement between the petitioners and respondent No.2-KFDC for issuing licence to the petitioners for running the fish meal plant situated at Fishing Harbour, Baithkul, Karwar. One of the terms and conditions of the said agreement at Clause 19 reads as under:
"That the LICENCEE shall not assign, sublet or hand over the use of the facilities and the premises to anyone without the written consent of the LICENSOR obtained previously. And LICENCEE should intimate in writing before taking any new partner/director to their company.": 32 :
In clause No.38 of the said agreement, it is mentioned that the lock-in period of 36 months is allowed to the LICENCEE provided the LICENCEE adheres to the terms and conditions to the agreement without fail. The document at Annexure-D which is addressed by V.Shyamprasad, Managing Director of Petitioner No.1-Company to the Managing Director of KFDC Limited, Mangalore dated 23.10.2007, goes to show that whatever machinery provided by the KFDC Limited are going to be replaced and petitioner No.1-company wanted to have the machinery with their own costs with latest technology. It is an undisputed fact that complainant filed a civil suit in O.S. No.60/2012 in the Court of Senior Civil Judge at Mangalore. It is the contention of the petitioner herein that as per the terms of the agreement, he made all the payment and no amount was due and in this connection, petitioner wanted to rely upon the documents at Annexures-E and F. Annexure-E, the document at page No.89, is the extract of the resolution passed in 197th Meeting of the Board of Directors of KFDC held on 10.07.2009 at 11.00 a.m. in : 33 : the Chambers of Director of Fisheries, Vishweshwaraiah Towers, Bangalore and this is with regard to the proposal of Sai Annapurna Bio Proteins Pvt. Ltd., regarding fixing annual licence fee on Karwar Fish Meal Plant. As contended by the learned counsel for the petitioner sofar as non-operational period is concerned, it is mentioned that due to any of the reason beyond the control of the licencee such as natural calamities, war, fishing holiday, fishing restrictions, any statutory regulations if the licencee could not operate the plant for a continuous period of not less than a week in licence year, the period for which the licencee has not operated the plant, such period shall be treated as non-operational period. In the said document at page No.91, in the last paragraph, it is also mentioned that generally fish meal plants are operated for a period of 4 to 5 months in a year depending on the availability of fish (oil sardine) at a very low price. After detailed discussion the board had decided to write to the Government for fixing a fixed annual licence fee of Rs.75 Lakhs without any conditions considering the annual average : 34 : operating days of 135 days. So on the basis of this material, the petitioner is contending that there is no due amount payable to the KFDC and as per the agreed terms, the amount has been paid from time to time. Petitioner No.2-V.Shyamprasad filed a complaint before the Station House Officer Patamata Police Station, Vijayawada City, wherein he made the allegations that his brother V.Krishnaprasad, who is respondent No.2 in another connected petitioner herein, in collusion with the anti-social elements was threatening to kill petitioner No.2 and his family members and few days back he came to know that his brother V.Krishna Prasad by forging his signatures and other Directors illegally transferred the share into the name of his associates and submitted false resolution copies and documents before the Registrar of Companies. The said documents are created and fabricated by them only to grab his share in the companies. In fact no meeting was conducted and no resolutions were passed and the alleged resolutions are false and incorrect and the said Krishna Prasad has no authority to submit forged documents and styling : 35 : himself as Managing Direct of the companies basing on the forged documents. Annexure-A, which is produced in Crl.P. No.100585/2015 at page No.25 goes to show that respondent No.2 V.Krishna Prasad in the said petition filed a complaint against the petitioners (in Crl.P. No.100649/2015), which was registered in Karwar Town Police Station for the offences under Sections 465, 467, 468, 471, 406 and 420 of IPC. The complaint averments goes to show that there is an allegation by the complainant V.Krishna Prasad that his brother executed the said agreement on behalf of the company at that time and as per clause 19 of the terms and conditions of the agreement, the Licencee has to pay the licence fees from time to time without committing any default. Similarly, the licencee shall not assign, sublet or hand over use of the facilities or the premises to any one without prior written consent of the licensor obtained and the licensee should intimate in writing before taking any new partner/director to their company. There is further allegation in the said complaint that during the course of the above said existing lease agreement, his : 36 : brother floated another company by name M/s Sai Annapurna Bio Proteins (Goa) Private Limited, Goa with deceptively similar name as M/s Sai Annapurna Bio Proteins Pvt. Ltd., by adding just a word Goa. It is a fictitious company. Neither himself nor their company associated with the above said Goa Company in any manner. His brother V.Shyam Prasad and Smt. Sublata Vasant Asnotikar are the Directors of the above said M/s Sai Annapurna Bio Proteins (Goa) Private Limited at that time and thereafter his brother operated/transferred the Karwar Unit to M/s Sai Annapurna Bio Proteins (Goa) Private Limited without obtaining any prior permission from the KFDC which is pre-requisite. It is also alleged in the said complaint that the company has issued Rs.4 Crores in two installments i.e., on 17.08.2009 and 18.08.2009 and subsequently, the same was cancelled and the said amount was returned to Goa Company as per the letter dated 14.03.2013 submitted to auditors appointed by the Company Law Board by his brother V.Shyam Prasad and his father Subhash Chandra Bose. But, his brother used to do business in the name of M/s Sai : 37 : Annapurna Bio Proteins (Goa) Private Limited. The contents of the said complaint lodged by V.Krishna Prasad, the respondent No.2 in Crl. P. No.100585/2015 also goes to show that his brother got floated on 26.08.2010 another fraudulent company M/s Vishvek Bio-Protein Private Limited in Goa by showing his employees as Directors of the said company within one month thereafter, his brother V.Shyam Prasad joined as a Director of the said company. Subsequently, his brother got executed a deed of sale of transfer cum assignment on 01.12.2010 for consideration of Rs.200 Lakhs in favour of M/s Vishvek Bio-Proteins Private Limited. The contents of the deed of the sale transfer cum assignment are entirely different from the sale details contained in the earlier memorandum of understanding. Original deed of the original sale, transfer cum assignment is not produced till today except the photocopy of the said deed. It appears that on the said document that he had also signed as one of the parties, but he never signed such document. His signature got forged and fabricated in the above said document. The further allegation is : 38 : that, as usual practice, their company can sell its products directly to the customers of company. In contrast, Mr.Shyam Prasad transferred the products manufactured in their Karwar Unit to M/s Vibha Enterprises and the same products were sold by M/s Vibha Enterprises to the same customers of their company which they used to supply products of their company earlier and siphoned out huge monies from their companies. The same was evident from the sales tax statements as well as bank statements of M/s Vibha Enterprises. Further allegation is that his brother V.Shyam Prasad in the capacity as a Director of Sri Annapurna Bio-Proteins Private Limited handed over and delivered the physical possession of the fish meal plant along with machinery etc. to M/s. Vishvek Bio-Proteins Private Limited. All the above said companies were floated fraudulently with an intention to cheat him and misappropriated the founds of their company and also to divert the business of their company and in this connection, the petitioners in Crl. P. No.100649/2015 committed the offences under the Money Laundering Act also. It is also his : 39 : contention that in this regard, he made several complaints to KFDC and concerned authorities. In pursuance of the job entrusted by the company Law Board, the auditors submitted a report dated 19.06.2013 to Company law Board, Chennai Branch narrating al the events and the said report also substantiated the above contents and stated the deed of sale transfer-cum- assignment appears to be not genuine one and petitioner Mr.V.Shyam Prasad not co-operated with them in submitting required information.
18. Therefore, perusing the materials placed on records, the main allegation of the complainants in the two petitions is the accused persons arrayed in both the petitions violated the terms and conditions of the licence agreement entered into between the KFDC and V.Shyam Prasad, who represents the petitioner No.1/accused company i.e., Sai Annapurna Bio Proteins Pvt. Ltd., and in violation of the terms and conditions of the licence agreement, the said accused persons sublet the fish meal plant and taking undue advantage of their position as licencee of the said : 40 : fish meal plant they floated many companies in four states i.e., Karnataka, Andhra Pradesh, Goa and Tamilnadu and deceived the people and thereby made money to the tune of rupees eight crores and thereby caused loss to the State exchequer. Regarding these contentions, while appreciating the material produced before this Court, prima facie, they go to show that number of companies have been floated in different states as mentioned above and even with regard to alienation or subletting the fish meal plant of the KFDC, the petitioner themselves mentioned in the petition that only draft was prepared but it did not materialise. Whether it was only a draft or it materialised or not is a matter to be considered at a later stage. I have carefully gone through the decisions relied upon by the learned counsel appearing for the petitioners in respect of both the petitions which decisions are referred to above. Looking to the facts and circumstances involved in those decisions and looking to the facts and circumstances of the case on hand, they are not exactly one and the same.
: 41 :
19. Regarding filing of the civil suit is concerned, it is no doubt true that civil suit is filed in the Court at Mangalore and in this connection I have perused the decision relied upon by the learned Government Pleader reported in 2014(3) SCC 389, wherein their Lordships laid down the proposition as under:
" A. Criminal Procedure Code, 1973 - S.482 -
Quashment - Criminal as well as civil liability - A given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to informant/complainant that itself cannot be a ground to quash a criminal proceeding - Real test is whether allegations in complaint disclose a criminal offence or not."
So, looking to the principles enunciated in the said decision, the respondents are justified in making the submission that only on the ground that civil suit is filed, the FIRs in these cases cannot be quashed. As submitted by both the sides, now the investigation in both the case is completed and charge-sheet has been filed, but for this learned counsel for the petitioners made the submission : 42 : that though it was submitted before the concerned court the said Court has not yet accepted the charge-sheet. This itself clearly goes to show that in view of the serious allegations of the petitioners forming/floating many companies which are fictitious and that petitioners earned the money to the tune of eight crores rupees, the special investigation team was constituted to investigate the matter and to file the charge-sheet. As submitted by the learned counsel for the respondents-complainant and so also the learned High Court Government Pleader appearing for the respondent-State, it is contended that in the investigation voluminous material has been collected which runs to many thousands of pages and the concerned court has to apply its mind to the materials collected and then has to take a decision in the matter. Hence it is also the contention of the respondents that when such materials have already been placed before the concerned Court, ignoring the same or keeping aside the said material only on the basis of FIRs produced in the two petitions the FIRs cannot be quashed. It is no doubt true that such : 43 : voluminous charge-sheet is also produced before this Court, but the opportunity is to be given to the concerned Court to go into the charge-sheet material and to proceed in the matter. Without doing so, considering such material in this petition and quashing the proceedings may not be appropriate for this Court.
20. Considering the entire materials placed on record and the legal position in the decisions relied upon by both the sides, I am of the opinion that, at this stage, it cannot be said that the FIRs do not make out a prima facie case against the petitioners. Hence, the petitioners have not made out a case for quashing the proceedings. Accordingly, both the petitions are hereby rejected.
Sd/-
JUDGE Kms