Calcutta High Court (Appellete Side)
3515/2010 on 16 November, 2011
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
1 13 16.11.2011
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s. d. C.R.R 3515 of 2010
In re : Suresh Kumar Agarwal .......petitioner.
Mr. Sabyasachi Banerjee
Mr. B. N. Joshi
Mr. S. Rudra ........for the petitioner.
Mr. Kaushik Gupta
Mr. Avishek Sinha
Mr. S. K. Roy
Mr. Rajdeep Majumder
Ms. Nasreen Kauser
Mr. Subhakar Shaw .....for the O. P. No. 2.
Mr. Debasish Roy, Ld. P. P.
Mr. Amarta Ghose ....for the State.
This application under section 397/401 read with section 482 of the Code of Criminal Procedure challenging the legality, validity and propriety of the order dated 06-04-2010 passed by the Ld. Chief Metropolitan Magistrate(In-charge), Kolkata in connection with Hare Street Police Station case No. 273 of 2008 dated 09-06-08 as well as for quashing of the entire proceeding, has been filed by Suresh Kumar Agarwal, one of the accused persons in the case initiated against him and others by M/s. R. Piyarelall Import and Export Pvt. Ltd under sections 120B/465/467/468/471/477A of the Indian Penal Code,mainly, on the grounds that he has been implicated 1 2 falsely in this case and that no offence is made out against him in the F. I. R and the chargesheet.
This revisional application has a chequered background which is not required to be referred to in details. One Piyarelall Agarwal formed R. Piyarrelall Group of Companies during his lifetime. M/s. R. Piyarelall Import and Export Pvt. Ltd. is one of the companies founded by Mr. Piyarelall Agarwal. Suresh Kumar Agarwal and Ramesh Kumar Agarwal are two sons of Piyarelall Agarwal. After the death of Piyarelall Agarwal, they indulged themselves in various kind of family disputes including the disputes over family business founded by Mr. Piyarelall Agarwal. They also indulged themselves in various litigations and ultimately by way of settlement severed the business into two groups -- Suresh Agarwal and Ramesh Agarwal Groups of Companies. That was done by Company Law Board on 27-02-2008 on the basis of an application taken out by both of them.
The business under the name and style of M/s. Piyarelall Import and Export Pvt. Ltd. was allotted to Ramesh Group of Companies. In the year 2008, after passing of the order by the Company Law Board, Officials of M/s. R. Piyarelall Import and Export Pvt. Ltd found that the petitioner and other persons made accused in the case, in collusion with each other, prepared false and 2 3 fabricated documents dated 18-04-2007 while acting as directors of the said company and were looking after the day to day business of the company, in order to create a fake order issued in favour of M/s. Texcomash Exports Pvt. Ltd., Delhi (wherein the co-accused nos. 3 & 7 were Directors and in-charge of the said company) for supply of rice valued at Rs.164 crores. Everything was done surreptitiously and in clandestine manner without any record, whatsoever. The fake order was not or for that the matter was not supposed to give effect. In pursuant to such conspiracy, the petitioner Suresh Agarwal issued three cheques totalling of Rs.15,62,00,000/- in favour of M/s. Texcomash Exports Pvt. Ltd. belonging to the co-accused nos. 2 & 7 towards payment of compensation money for cancellation of the said order for supplying of rice valued at Rs.164 crores. The cheques were issued by the petitioner knowing fully well that the company did not have such a huge amount of money in its bank account. Cheques were bounced and again further cheques were prepared for the purpose of payment of compensation for not taking delivery of rice valued at Rs.160 crores.
In November, 2007, the alleged offence could be detected and an enquiry was made. It was detected that everything was done in order to siphon off the money of the company by illegal and fradulent way and for their gain and to cause loss to the newly formed Groups 3 4 of Companies. Surajit Mukherjee, who lodged complaint on behalf of M/s. R. Piyarelall Import & Export Pvt. Ltd., against Suresh Kumar Agarwal( the petitioner & Ors) and prayed for referring the same to the Hare Street P. S for investigation of the matter under Section 156(3) of the Code of Criminal Procedure.
The case was investigated into and, ultimately, ended in a chargesheet dated 04-04-10 under sections 120B/465/467/468/471/477A of the Indian Penal Code against the petitioner and others.
The ld. Magistrate discharged three FIR named accused including Ramesh Agarwal on the prayer of the Investigating Officer.
The petitioner and the other persons who have been sent up for trial were not found available and, accordingly, the Ld. Magistrate directed issuance of warrant of arrest against them.
Suresh Kumar Agarwal, the petitioner herein has come up with this revisional application challenging the order dated 16-04-2010 whereby warrant of arrest was issued against him and others as well 4 5 cognizance of offences was taken by the ld. court on the basis of the charge-sheet.
Mr. Sabyasachi Banerjee, learned advocate for the petitioner contends that since the group of companies founded by Mr. R. Piyarelall was severed into two groups of companies ----- Suresh group of companies and Ramesh group of companies on 27-02-2008 and the F.I.R was lodged thereafter, the petitioner cannot be charged on accusation for inconsistencies in the accounts of the company to which he was not at all attached on the date of lodging the F.I.R.
He has taken this court to the charge-sheet wherefrom it appears that the date of filing of the F. I. R was 09-06-08 i. e. four(4) months' notice after the order passed by Company Law Board.
He takes this Court to the photostat copy of the ledger of R. Piyarelall Import and Export Pvt. Ltd for the period from 08-02-08 to 29-02-08 and from 01-04-07 to 29-02-2008 and submits that the ledger of the company does not disclose that such number of cheques of huge amount was issued by any of the Directors of the company including the petitioner in favour of M/s. Texcomash Exports Pvt. Ltd.
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He also draws attention of this court to the orders passed by this court to the C.A 11, 12, 13, & 14 of 2008 on the basis of which the Company Law Board severed the groups of companies between the Suresh & Ramesh.
Mr. Banerjee, learned advocate for the petitioner draws attention of this court to several documents made annexures to this application and contended that, in fact and in substance, there was a dispute between the two brothers over family properties and when the family business was severed into two groups, the opposite group of the petitioner lodged false criminal prosecution against the petitioner in order to harass him.
He also contends that had there been any supply order of rice amounting to Rs.160 crores and issuance of cheques for compensation for cancellation of such order that would have been reflected in the accounts of the company. But, according to Mr. Banerjee, the F. I. R does not disclose anything about inconsistency in the bank's account over that issue. The I. O. of the case could not also seize any document wherefrom it could be detected that any such deal was done in clandestine manner by the petitioner in connivance with other co-accused. Since no case has been made out against the petitioner under sections 6 7 465,467,468,471 & 477A of the Indian Penal Code, continuance of the proceeding would be amounting to abuse of the process of the court. He further contends that it would be gross miscarriage of justice if the petitioner is arrested in connection with this case and produced in court for no wrong on his part.
Mr. Kaushik Gupta, learned advocate appearing on behalf of the opposite party no. 2. contends that on conclusion of investigation into the allegations and aspirations put forth in the F. I. R, it was detected that there was a fake rice deal by R. Piyarelall Import and Export Pvt. Ltd. with M/s. Texcomash Exports Pvt. Ltd which is owned by co-accused when the petitioner and co-accused were acting as directors of the company in the year 2007.
It is true that the group of companies founded Mr. R. Piyarelall Agarwal was severedinto two groups --- Suresh Agarwal Groups & Anr. and another was Ramesh Agarwal Groups by Company Law Board in the month of February 2008 on the basis of the family settlement. F. I. R was lodged four months thereafter, i. e., after taking over business of M/s. R. Piyarelall Export and Import Pvt. Ltd. by Ramesh Groups. However, it is made clear therein that the alleged offence was committed by the petitioner in connivance with other co-accused in the year 2007 and thereby deceived the 7 8 Company and caused loss to the new group i. e. Ramesh Agarwal Group who was allotted the company by the Company Law Board. A huge amount of money is involved and the entire deal allegedly is a fake one and no paper transaction was made but cheques were issued. The Investigating Officials collected the some important documents in support of the prosecution case in course of investigation.
Mr. Amarta Ghose, learned advocate for the State led by Mr. Debashis Roy, Ld. Public Prosecutor contend that there are sufficient materials in support of the prosecution case and the court is not supposed to rely on the documents filed today by the petitioner in course of hearing in order to decide the fate of the prosecution case.
This Court is not empowered under section 482 of the Code of Criminal Procedure to decide a case on merit in such a fashion as desired by Mr. Banerjee.
It is trite law that the High Court can exercise its extraordinary jurisdiction under section 482 of the Code of Criminal Procedure and quash a proceeding if it is found that the allegations and aspirations set forth in the F. I. R/complaint even if they are believed or accepted 8 9 on their face value uncontroverted, no case is made out against the accused.
In the instant case, a bare perusal of the F. I. R, charge-sheet and report of investigation together leaves no room of doubt that a strong prima facie case has been made out against the petitioner and other co-accused named in the charge-sheet. This does not appear to be a proper case where the court should embark upon the evidence relied on by the accused which are subject to strict proof and judge the correctness or falsity of the allegations and aspirations in order to quash a proceeding by exercising its power under section 482 of the Code of Criminal Procedure. It appears from the case diary that the charges have not yet been framed against the petitioner and co-accused. In fact, their attendance could not be procured by the Ld. Magistrate and that is why warrant of arrest were issued against them. There is no illegality on the part of the Ld. Magistrate in doing so.
Therefore, this Court does not find it expedient to quash the proceeding as prayed for.
This court also declines to recall the warrant of arrest issued by the Ld. Magistrate. In view of the facts stated above, the 9 10 revisional application stands dismissed. The petitioner is directed to surrender in the court of the Ld. Magistrate and pray for bail. The petitioner and other co accused should be at liberty to agitate their specific cases at the time of framing of charge under sections 227/228 of the Criminal Procedure Code.
Criminal Section is directed to supply certified copy of this order, if applied for, to the petitioner on usual undertakings.
( Kanchan Chakraborty, J. ) 10