Gujarat High Court
B vs Gujarat on 11 August, 2010
Author: J.C.Upadhyaya
Bench: J.C.Upadhyaya
Gujarat High Court Case Information System
Print
CR.MA/4745/2009 2/ 14 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 4745 of 2009
With
CRIMINAL
MISC.APPLICATION No. 4816 of 2009
=========================================================
B
V SHESHGIRI RAO & 1 - Applicant(s)
Versus
GUJARAT
APOLLO INDUSTRIES LTD THRO' MD, ASIT A PATEL & 1 - Respondent(s)
=========================================================
Appearance :
CRIMINAL
MISC.APPLICATION No. 4745 of 2009
MR
ND NANAVATI, Sr.Advocate with MR BC DAVE for
Applicant(s) : 1 - 2.
MR YOGESH LAKHANI, Sr.Advocate with MR NP
CHAUDHARY for Respondent: 1,
MR UA TRIVEDI, APP for Respondent: 2,
CRIMINAL
MISC.APPLICATION No. 4816 of 2009
MR
JB PARDIWALA with MR MK PATEL for Applicant(s) : 1
MR YOGESH
LAKHANI, Sr.Advocate MR NP CHAUDHARY for Respondent: 1,
MR UA
TRIVEDI, APP for Respondent:
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 12/05/2009
ORAL
ORDER
1. Rule, ld.sr.counsel Mr.Lakhani for ld.advocate Mr.Chaudhari for respondent No.1 (original complainant) and ld.APP Mr.Trivedi for respondent No.2 State waive service of notice of Rule in both these matters.
2. With the consent of ld.sr.counsel Mr.Nanavati and ld.sr.counsel Mr.Lakhani as well as ld.APP Mr.Trivedi, representing both the sides, both these matters are taken up for final hearing and final disposal.
3. Both these applications arise out of a first information report lodged by one Ashit A.Patel in capacity as Managing Director of Gujarat Apollo Industries Ltd. before Langhnaj police station on 4.4.2009, alleging offences against the two applicants in Criminal Misc. Application No.4745 of 2009 being original accused Nos.1 and 3 in said FIR and against the applicant in Criminal Misc.Application No.4816 of 2009 being original accused No.2 in the FIR for the offences punishable under Sections 406, 408, 409, 420, 465, 467, 468 read with Section 34 114 of the IPC and Section 120B of the IPC.
4. Both these petitions came to be filed by the original three accused persons, requesting that the above referred FIR, came to be filed by Managing Director of the company - Ashit A.Patel , which came to be registered as C.R.No.I 32 of 2009 with Langhnaj police station, be quashed, exercising inherent powers vested in this Court under Section 482 of the Criminal Procedure Code.
5. Heard ld.sr.counsel Mr.Nanavaty for ld.advocate Mr.Dave for the applicants in Criminal Misc.Application No.4745 of 2009 and ld.advocate Mr.Pardiwala for ld.advocate Mr.Patel for the applicant in Criminal Misc.Application No.4816 of 2009 and ld.APP Mr.Trivedi for respondent State and ld.sr.counsel Mr.Lakhani for ld.advocate Mr.Chaudhari for the respondent original complainant.
6. On behalf of the applicants original accused, it is submitted that the FIR, if considered, as it is, it does not disclose any cognizable offence. It is submitted that the FIR refers to certain transactions, which took place between 5.4.2006 to 31.10.2008, whereas the FIR came to be filed on dated 4.4.2009 and, thus, it is a belated FIR, and in the FIR, nowhere any explanation is forthcoming, explaining the delay in lodgment of FIR. It is further submitted that considering the FIR as it is, the company, namely, Gujarat Apollo Industries Ltd. did not sustain any loss. So far as the applicant original accused No.1 Seshagiri Rao is concerned, it is submitted that he was serving as Manager (Export) in the company and considering the nature of his duty, his role was not to take any policy decision and the policy decision was required to be taken up by other departments of the company, and ultimately by the Managing Director Ashit A.Patel. Only because of some internal dispute between the company and the original accused No.1, the false complaint came to be filed.
6.1 On behalf of the applicants original accused persons, it is further submitted that the bare reading of the FIR would reveal that by pressure tactic, alleged profit said to have been received by the accused, is tried to be recovered back from them, misusing the police machinery. It is submitted that the dispute involved in the FIR is nothing, but civil dispute colored as criminal offence. It is further submitted that so far as accused No.2 Minesh Patel is concerned, during the period, in which the offence is said to have taken place, as alleged in the FIR, as a matter of fact, no transaction came to be entered into between himself or his company with the complainant - company. So far as original accused No.3 Anant Saxena is concerned, only because he happens to be the brother-in-law of original accused No.1, the then Manager (Export) who was serving in the company, original accused No.3 is wrongly implicated in this case.
6.2 It is further submitted that the machineries, which were required to be exported through Meridian Shipping Company and the complainant
- company paid due charges to the shipping company, therefore, there is no allegation that any short payment was made.
6.3 On behalf of the applicants original accused, it is further submitted that no offence of breach of trust, cheating or forgery can be said to have been even prima-facie made out. There is no allegation in the FIR that any document came to be concocted or any forgery came to be made regarding any document or valuable security. The original accused Nos.2 and 3, if earned some profit, it cannot be said that the profit came to be earned by defrauding the complainant
- company. It is a business transaction and by legitimate means, profit came to be earned.
6.4 It is further submitted that before the lodgment of FIR with Langhnaj police station, one application came to be filed by the first informant before Navrangpura police station and no action was taken, pursuant to the said application, and, therefore, with a view to falsely pressurize the accused, the FIR came to be lodged with Langhnaj police station. The bare reading of the FIR would further suggest that the FIR came to be filed for the purpose of settlement of some civil dispute. In the FIR, it is clearly stated that, when the first informant asked the accused persons to compensate the company regarding alleged losses and when the accused persons refused it, the FIR came to be filed. That, thus, the FIR came to be filed for the purpose of settling demand of money. Nothing is alleged that original accused No.1, the Manager (Export) received any money by way of illegal gratification or by favouring so-called three companies referred in the FIR.
6.5 That, thus, the required ingredients regarding the offences alleged in the FIR, cannot be said to have been even prima-facie made out. There is nothing that complainant - company was induced by any of the accused persons to deal with the so-called three shipping companies named in the FIR.
6.6 Therefore, in the result, it is submitted that the FIR in question be quashed and both these petitions be allowed.
7. On behalf of the original complainant, ld.sr.counsel Mr.Lakhani submitted that considering the FIR as it is, it clearly transpires that all the three accused conspired with each other, to defraud the complainant company and in furtherance of their conspiracy, the complainant company sustained loss to the tune of Rs.1,60,90,057/-, which is wrongful gain, so far as the accused are concerned. The three accused persons, through their family members and relatives, formed three different companies referred in paragraph 5 of the FIR and concealing the correct shipping and transportation charges quoted by Meridian Shipping Company, they charged exorbitant amount towards freight and service charges and at the relevant time the original accused No.1 Seshagiri Rao was serving as Manager (Export) in the complainant company and original accused No.2 Minesh Patel had some contact with Meridian Shipping Company, and, therefore, it was very convenient for both the accused persons to put their illegal act in operation and to defraud the complainant company very conveniently.
7.1 Ld.sr.counsel Mr.Lakhani drew my attention to the statement annexed with Criminal Misc.Application No.4745 of 2009 at Annexure R and submitted that as per the statement, by way of 42 transactions of shipment by Meridian Shipping Company, through the bogus company created and floated by the accused, huge amount came to be charged by way of shipment, came to be recovered from the complainant company. It is submitted that all three bogus companies floated by the accused, have direct connection and nexus with each other, in terms of the address of the companies, and in terms of the proprietor/partner in the companies.
7.2 Therefore, it is submitted that at this juncture, both these applications deserve dismissal, and the investigation may be permitted to be proceeded further.
8. On behalf of the respondent State, ld.APP Mr.Trivedi submitted that at this stage, there is no material whatsoever that initially any application came to be filed by the complainant - company before Navrangpura police station, as alleged. In none of the petitions, it is expressly alleged that prior to the FIR, any FIR/application came to be filed in Navrangpura police station.
8.1 It is further submitted that so far original accused No.2 Minesh Patel is concerned, in connection with this FIR, he filed anticipatory bail application in the Sessions Court, Mehsana, which came to be rejected. He filed anticipatory bail application in this Court, which came to be withdrawn. That, therefore, it cannot be conclusively said at this stage that the FIR does not disclose any cognizable offence. Investigation is just at a primary stage, and, therefore, at this stage, it would not be just and proper to interfere with the investigation undertaken by the police. Therefore, it is submitted that both these applications be dismissed.
9. Considering the FIR, it transpires that the FIR came to be filed against three accused persons, namely, B.V.Seshagiri Rao, Minesh Patel and Anant Saxena for the offences punishable under Sections 406, 408, 409, 420 and 465, 467, 468, 120B read with Section 34 114 of the IPC. In the FIR, in brief, it is stated that the accused No.1 Seshagiri Rao was serving in the complainant company since last 14 to 15 years and since last 4 to 5 years, he was serving as Manager and was incharge of import and export business of the company. It is stated that it was the duty of the accused No.1 to negotiate about the freight and transportation charges with shipping companies, to call for quotations from such companies and to enter into such negotiation with those companies, which is beneficial to the complainant company. In the FIR, it is further stated that during the course, when the internal audit of the company came to be undertaken by Chartered Accountant Mr.Shailendrakumar Mudra, at that time, it was detected that the accused No.1 Manager, did not act in the benefit of the complainant company and the company came to be defrauded by him and incurred huge losses and simultaneously the accused received unlawful gain. In the FIR, it is stated that the manufactured product of the company came to be exported in different foreign countries through Meridian Shipping Agency Pvt. Ltd. Some documents of said company came to be examined and thereby also, it came to be revealed that though the Meridian Shipping Agency quoted less freight and service charges, but, the three companies incorporated and floated by the accused, charged exorbitant amount from the complainant company and paid the regular freight charges to Meridian Shipping Agency and thereby recovered huge amount to the tune of Rs.1,60,90,057/-, during the period in reference, in the FIR.
9.1 In paragraph 5 in the FIR, it is stated that all the three accused persons, through their relatives and acquaintances created and floated three companies, namely, (1) Standard Shipping Service (2) Standard Logistic (3) Arny Logistic. The goods manufactured by the complainant company with the help of accused No.1 in capacity as Manager of the complainant company and with the help of accused No.2, having some relation with Meridian Shipping Agency, were exported through these companies, floated by the accused, and in turn, paid regular amount to the Meridian Shipping Agency, but charged exorbitant amount from the complainant company.
9.2 In the FIR, it is further alleged that most of the transactions are done through internet and e-mails, so far as the complainant company is concerned. The computers of the complainant company contains computerized datas. The accused deleted important datas from computers of the company.
9.3 In the FIR, it is further stated that after the fraud came to be detected, the accused persons were personally called in the company and they were requested to compensate the company for the loss, but, the responsible Officer of the company was threatened by the accused persons that they would cause damage to the company.
10. Under such circumstances, considering the bare reading of the FIR as it is, it is the case of the complainant company that the accused No.1 by misusing his power, in capacity as Manager and with the aid and abetment by original accused Nos.2 and 3, created and floated three different companies and by concealing the true quotations supplied by Meridian Shipping Agency, huge amount came to be charged for freight and service charges from the complainant company and only regular charges came to be paid to Meridian Shipping Agency. It is stated that during the period from 5.4.2006 to 31.10,2008, the three companies floated by the accused persons received Rs.5,41,34,952/- from the complainant company, but paid Rs.3,57,59,349/- to Meridian Shipping Agency, and, thus, the accused in furtherance of their criminal conspiracy, committed misappropriation of huge amount to the tune of Rs.1,60,90,057/-.
11. On behalf of the applicants, it was sought to be submitted that whatever amount alleged to have received by the accused persons can be said to be alleged profit earned by the accused and cannot be said to be a wrongful gain. However, the bare reading of the FIR would reflect that prima-facie, it is a wrongful gain earned by the accused persons. It is pertinent to note prima-facie that the huge and exorbitant amount came to be received by the three companies, floated by the accused persons as averred in the FIR. The bare reading of the FIR would further reveal that all the three accused have their nexus and interest in the three companies alleged to have been floated by them. It is clear allegation in the FIR that the three companies came to be floated by the accused persons, only with an intention to defraud the complainant company. As transpires from the FIR, at the relevant time, original accused No.2 had some interest and nexus with Meridian Shipping Agency, as alleged in paragraph 6 of the FIR. The accused No.3 happens to be the brother-in-law of accused No.1. Therefore, as it is reflected from the FIR, it became very easy for the accused persons to defraud the complainant company and to misappropriate the amount. At any rate, at this juncture, prima-facie it cannot be said that it is a simple case of over-billing or a simple case of profit gained by the accused persons, or case of a civil dispute or service dispute.
12. On behalf of the original accused No.1, it was submitted that the nature of duty of the Manager (Export) is not to take any policy decision. So many other departments are involved while coming to any policy decision, I am of the opinion that this is the defence of accused No.1, which he can raise at the time of trial. The bare reading of the FIR at this stage would suggest that it was the prime duty of the accused No.1, in capacity as Manager (Export) to enter into negotiations with different shipping companies, to call for quotations and to negotiate in such a way that the complainant company gets benefit.
13. On behalf of the applicants, reliance was placed in the case of A.K. Chaudhary Vs.State of Gujarat 2005(3) GLH 444 and more particularly in paragraph 41 in the said judgment. The facts of said case are totally different than the facts of the case on hand. In that case, this Court came to the conclusion that the FIR did not disclose any ingredients required for the offence of abetment to suicide, punishable under Section 306 of the IPC. In the instant case, the bare reading of the FIR, at this stage, would suggest prima-facie the offence of cheating, criminal breach of trust and forgery, coupled with criminal conspiracy for committing those offences.
14. On behalf of the applicant, reliance was placed in the case of I.O.C. Vs.NEPC India Ltd. (2006)2 GLH 753, more particularly upon the discussion made in paragraph 9 of the judgment. There cannot be any dispute regarding the circumstances, under which an FIR is quashed. The Honourable the Apex Court observed that a complaint can be quashed, where the allegations made in the complaint, even if they are taken at its face value and accepted in their entirety, do not prima-facie constitute any offence. It is further stated that a complaint may also be quashed, where it is a clear abuse of process of the Court or is initiated with malafide/malice. The Honourable the Apex Court has also observed that the power vested under Section 482 of the Cr.P.C. should be used sparingly and with abundant caution.
15. Considering the principles established by Honourable the Apex Court in this judgment and considering the above discussion, it cannot be said that the FIR does not disclose any offence, prima-facie. At this stage, there is nothing to come to the conclusion that the lodgment of the FIR is clear abuse of process of the Court.
16. On behalf of the applicants, reliance was placed upon the case of State of Gujarat Vs. Motibhai Jethabhai 1992(2) GLH 306. Considering the said case, it transpires that the State preferred appeals, challenging the acquittal order recorded by the trial Court, after full-fledged trial of the offences punishable under Sections 420 and 468 of the IPC. In the said case, in paragraph 13, this Court observed regarding the ingredients for the offence of forgery as contained under Section 463 and 464 of the IPC. Now, in the instant case, in the FIR, it is alleged that the accused No.1 Manager, by misusing his powers deleted important data's from the computer and deleted e-mail data's regarding the quotations received by the company from Meridian Shipping Agency and other original shipping companies. It is clearly stated that all the transactions and accounts of the complainant company are computerized. Regarding electronic record, necessary amendment has been carried out in Sections 463 and 464 of the IPC.
17. In the result, in light of the entire above discussions, I do not find this case to be fit case, where inherent powers vested in Court under Section 482 of the Cr.P.C., are required to be exercised. Both the applications, therefore, deserve dismissal.
18. Needless to say that, whatever observations are made in this order are confined only for the purpose of due disposal of these applications filed under Section 482 of the Cr.P.C.
19. For the foregoing reasons, both these applications stand dismissed. Rule stands discharged.
(J.C.UPADHYAYA, J.) (binoy) (J.C.UPADHYAYA, J.) (binoy) Top