Delhi District Court
Cr No.105/14 vs (1) M/S Mvmimpex Pvt. Ltd on 9 October, 2014
Criminal Revision No.105/14
IN THE COURT OF MS. HEMANI MALHOTRA,
ADDL.SESSIONS JUDGE-05 (CENTRAL), TIS HAZARI COURTS
DELHI
CR No.105/14
M/s Brushman India Limited,
Through Sh.Kapil Kumar,
Managing Director,
61/18 Ramjas Road,
Karol Bagh,
Delhi
...........Revisionist.
Versus
(1) M/s MVMImpex Pvt. Ltd
Having its registered office at
A-19/B1, Ext. Mohan Cooperative IndustrialEstate,
Mathura Road,
PO Badarpur, New Delhi .
(2) Mr. Mukesh Gupta,
Director, M/s MVM Impex Pvt Ltd.
R/o D-112,New Friends Colony,
New Delhi
(3) Mr.Manish Goel,
Director M/s MVM Impex Pvt Ltd.
R/o D 112, New Friends Colony,
New Delhi.
(4) Mr. Ashok Choradia,
1101, Rohit House,
Tolstoy Marg,
New Delhi
(5) State of NCT of Delhi.
.........Respondents
Date of institution :11.04.2014
Date of conclusion of arguments/
reservation of Judgment :24.09.2014
Date of pronouncement of judgment :09.10.2014
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Criminal Revision No.105/14
ORDER
1. The present criminal revision petition has been preferred by the complainant M/s Brushman India Limited against the impugned order dated 10.01.2014 passed by learned MM in case FIR No. 150/11, PS EOW under Section 406/420/467/468/471/120-B IPC whereby the protest petition of the complainant against the closure report as well as the complaint of the complainant was dismissed.
2. The brief facts necessary for the disposal of the present revision petition are that the respondent Nos.2, 3 and 4 approached the complainant to obtain Inter Corporate Deposit (ICD) in the name of their company (respondent No.1) to the tune of Rs. 12 crores. Believing their credentials, the complainant company extended ICD for Rs.12 crores in terms of agreement dated 09.09.2008. Both the directors (respondent Nos.2 and 3) became confirming parties to the agreement and extended their personal guarantees. In accordance with the agreement, the entire share holding of the two directors in the sister concern (M/s Shilpi Communication Private Limited) of the respondent no.1 was also pledged as security in addition to the personal guarantee of the confirming parties. As per the agreement, they also agreed to pay interest @ 12% p.a repayable on expiry of three months from the date of disbursement. Other relevant documents including demand promissory note were also executed by respondent Nos. 2 and 3 in favour of the complainant on the even date. Vide letter dated 25.11.2008, the respondent Nos. 1 to 3 expressed their inability to repay the amount with interest and asked for extension. Thereafter, again on 20.01.2009, while acknowledging the ICD agreement they promised to pay the outstanding but continued to default. On 25.02.2009, a sum of Rs. 3 crores 25 lacs 2 of 11 Criminal Revision No.105/14 was paid on behalf of the complainant(M/s MVM Impex) in favour of M/s SICPA India Limited. Thereafter, respondents neither paid the principal amount nor the interest and kept delaying the payment for some reason or the other. Constrained by their act, the complainant got issued a legal demand notice dated 28.12.2010 to the respondent Nos. 1 to 3. In reply dated 19.02.2011, the respondent Nos.1 to 3 claimed that no amount was due towards the loan account and the same stood settled. It was also claimed that at the request of the complainant , the respondent Nos. 1 to 3 had allotted 10 lacs equity shares in respondent no. 1 to the complainant for which the complainant had remitted Rs.7.50 crores representing 75% amount payable as application and allotment money. Also that, respondent Nos. 1 to 3 reserved their right to claim the balance amount payable by the complainant towards the share allotment. Shocked by the reply , the complainant made a complaint to the police for registration of the FIR . Since, no action was taken by the police, the complainant filed a criminal complaint u/s 200 Cr.P.C along with application u/s 156(3) Cr.P.C before the learned trial court. The learned trial court vide its order dated 30.06.2011 directed the registration of FIR which was registered as FIR No. 150/2011 PS EOW. After carrying out its investigation, closure report was filed by Inspector Ashu Girotra countersigned by ACP Sh. Mahesh Tholia claiming that no offence was made out against the accused persons as alleged by the complainant. Being aggrieved by the closure report, the complainant filed a protest petition which was dismissed vide the impugned order dated 10.01.2014. Vide the same order, the learned trial court also dismissed the complaint filed u/s 200 Cr.P.C. Hence, the present revision petition.
3. Notice of the present revision was issued to the respondents.
3 of 11 Criminal Revision No.105/14 Although, vakalatnama was filed on behalf of the respondents. However, no reply was filed despite opportunity having been granted. None also appeared on behalf of the respondents to address the arguments.
4. I have heard the arguments advanced by the learned counsel for the complainant and have gone through the trial court record with utmost care.
5. The Trial Court record reveals that during the investigation the IO had examined the complainant Sh. Kapil Kumar/MD of M/s Brushman India Limited , the other Directors of M/s Brushman India Limited, Sh. Ashok Chordia who was instrumental in disbursement of loan to M/s MVM, Directors and other concerned persons of M/s MVM Impex Private Limited . The IO had also seized documents from both the parties and had sent the same for forensic examination to one M/s Truth Lab. After investigation, the IO filed the closure report opining that the claim of the complainant does not hold good. For deciding the present revision petition, I deem it appropriate to reproduce the relevant extract of the closure report filed by Inspector Ashu Girotra (IO) which is as under:
Thus, from the investigation conducted so far, the allegations leveled by the complainant company, M/s Brushman India Ltd through its MD Shri Kapil Kumar could not be substantiated as the signatures on the disputed documents i.e. affidavit dated 25.02.2009, Board Resolution, undated declaration and GPA dated 26.02.09 have been found to be of the complainant only. During investigation, it has been found that in the middle of 2008, the complainant company M/s BIL was having surplus funds on account of GDR issued by it. At the same time, M/s Shilpi Group was in the need of money as it intended to purchase a German Company. On the asking of M/s Shilpi Group, Ashok Chordia who is the auditor of this group, arranged the money from M/s BIL. For this purpose, he took the help of Anuj Chowdhary with whom he had been running a partnership firm in the name of M/s Mentor Capital Services Pvt. Ltd. The duo approached Shri Kapil Kumar of M/s BIL who agreed 4 of 11 Criminal Revision No.105/14 to advance an Inter Corporate Deposit of Rs.12 crores to M/s MVM Impex, a holding company of M/s Shilpi Group. Although the complainant was out of India, the amount of Rs.13 crores was released by M/s BIL through RTGS in favour of M/s MVM Impex and it was agreed that documentation will be done later after his return. However, A Demand Promissory Note was prepared on 04.08.2008, in this regard.
After the complainant returned from abroad, the documentation i.e. ICD agreement, letters of Guarantee, Agreement to Pledge of securities, fresh Demand Promissory Note was prepared on 09.09.2008. It was agreed that payment will be given back within 3 months. As per the agreement, the alleged M/s MVM Impex paid an amount of Rs.13 lacs (approx) also initially. However, thereafter , no payment was made by M/s MVM Impex till 25.02.2009 when, it handed over a draft of Rs.3 crores in favor of M/s SICPA India Ltd to Shri Kapil Kumar of M/s BIL. Till that period, both the companies were in regular touch with each other. There is a record of exchange of letters which has been provided by the complainant and the same is not disputed by the alleged. However, after 25.02.2009, both the companies have gone silent till 05.07.2010 when M/s MVM Impex has received legal notice dated 12.06.2010 through which the amount of Rs.12 crores has been asked back by M/s BIL. The complainant has stated that he kept pursuing with all the concerned persons including Anju Chowdhary, Ashok Chordia and M/s MVM Impex but the alleged has denied the same. The complainant has also not provided any record to substantiate his claim. From the perusal of the reply dated 20.07.2010 in respect of the first legal notice issued by the complainant, it is seen that it has been mentioned therein that the matter had been settled after the allotment of 10 lac equity shares for which part payment was due to be made by M/s BIL. The complainant thereafter has again gone silent till another notice is issued by him on dated 28.12.2010. The complainant has claimed that he came to know that M/s MVM has shown in its books of account that a sum of Rs.7.50 crores as share application money and balance amount of payable to BIL, after the IT officials searched his premises on 21.09.2010. But the alleged accused had already taken his stand through his reply dated 20.07.2010 regarding subscribing of 10 lac equity shares by M/s BIL. In any case, the complainant as well as the alleged kept quiet for a period of 1-1/2 years is intriguing as the amount involved is a huge one.
During the investigation, the complainant had claimed that blank documents bearing his signatures had been misused by Anuj Chowdhary and Ashok Chordia and claimed that his signatures are below the printing on the documents. However, from the expert's opinion received in this matter , it has been found that the signatures overlap the printing and not otherwise, i.e the signatures are above the printing. The complainant had also claimed that he had returned all the documents as he was under pressure to return the money to M/s SICPA India but it has been found that the alleged company had given 3 cheques worth Rs. 13.20 crores as security. The complainant could have returned only one or two cheques but why all the three cheques. He has not been able to give any plausible reason as to why he returned all the three cheques. Further , at the time of ICD agreement, the alleged had pledged 85 lac 5 of 11 Criminal Revision No.105/14 shares of Shilpi Group. The complainant has also not been able to explain as to why he returned all those shares too. The complainant has during the investigation claimed that he is in possession of the original Demand Promissory Note of Rs.12 crores. Further he has claimed that if the shares had been allotted to him there should have been a share application form or a share transfer form or receiving of share certificate. Also, he has cited the delay on the part of the alleged to inform the ROC. He claimed that when the shares had been alloted on 14.02.2009, then why the same was informed on 14.02.2010. Also, why didn't the alleged company project the same through the ITR on 30.09.2009. But all these claims do not hold any good for the reason that the signatures on the disputed documents have been found to be of the complainant only. The procedure adopted for the share transfer may not be correct and the information has been given to ROC in the delayed manner but when the documents i.e affidavit as well as the GPA, undated declaration and Board Resolution are read in totality and which have been found to bear the original signatures of the complainant , then it shows that the complainant had indeed entered into settlement with the alleged company. Otherwise, he would not have kept quiet for one and half years. It is pertinent to mention here that the alleged company had earlier given a loan of Rs.1.35 crores to the complainant company but no document had been executed in this regard. The complainant has not disputed the same. It shows that there was a lot of faith amongst the two companies and for this reason the documents were not executed. His claim that there is no document to show any agreement for adjustment of ICD amount into subscription of shares does not hold good for the reason that in the affidavit and other documents, it has been confirmed that he has agreed to subscribe to the shares of the alleged company and also in these documents he has confirmed of having received the original share certificate. It has also been found that the alleged company had in its reply to the legal notice dated 20.07.2010 as well as later stated that it reserves the right to ask for the balance payment of Rs.2.5 crores for the partly paid up shares. But it is pertinent to mention here that till date, the alleged company has not demanded the said money which again shows that it too had kept quiet due to the settlement which had arrived on. Also, as per the expert's opinion , the signatures on the General Power of Attorney dated 26.02.2009 have been found to be of the complainant only. From the perusal of the said document, it is seen that it comprises of three pages. While the first two pages bear signature of the complainant at the bottom of the page, the third page bears the signatures in the middle of the page, i.e where the paragraph ends. This suggests that the signatures have been done in a thoughtful manner and there could not have been a blank page bearing the signature which might have been misused. The complainant has stated that how it is possible that he would purchase the shares worth Rs.10 crores and would keep nothing with himself i.e he would purchase the shares from M/s MVM and hand it over back to M/s MVM only and give them only the authority to dabble in to those shares. Also, why he would pay Rs.7.5 crores and not the complete amount when he had given Rs.13 crores through RTGS. The complainant's claim is completely true but here lies the catch in his complete transaction. As stated above, the signatures on the 6 of 11 Criminal Revision No.105/14 questioned documents have been found to be of the complainant only. From the chain of events, it is seen that after 25.02.2009 , there is a complete lull in the correspondence on the part of both the companies. It is seen that in his statement, Manish Goel has told the IT authorities of balance amount of Rs.1.11 crores being appropriated against the calls in arrears towards the amount of Rs.2.5 crores due towards the complainant. Had the matter not been settled, the complainant would have made correspondence with the alleged. He kept quiet for more than one and half years without initiating any action of realizing the due amount of Rs. 9 crores. And on the part of the alleged, had he really intended to adjust the amount of Rs.1.11 crores and also intended to take the remaining amount of Rs.14 crores from the complainant, it would have issued any demand notice. That neither the complainant nor the alleged initiated any such move to realize their demand due payment shows that both of them had settled the matter amicably. That the complainant's claim that he is still showing the amount due in his balance sheet seems for the purpose that the money which he had given to M/s MVM was public money and he did not intend to show to his creditors that the money which he had advanced as loan has been returned to him. For this reason only, there is no correspondence either by the complainant or by the alleged for one and half years. This is a long period and the amount involved is a huge one. A person who is in heavy debts as claimed by the complainant during various discussions would not keep quiet for such a long duration and that too when they money involved was collected by him by way of a GDR. The complainant has also claimed that no Board meeting took place on 01.08.2008 and had his company resolved to subscribe the share of M/s MVM, why it would sign the ICD agreement on 09.09.2008 but again the signatures on this document has been found to be of the complainant only. It shows that the documents had been created by him or were created with his consent. The complainant also claimed that the shares had been allotted to the complainant company on 14.02.2009 then why the communication between the two companies till 25.02.09 was captioned as ICD agreement. In this regard it is reiterated that whose the signatures have been found to be of the complainant only and that too above the printing then it is immaterial as to what was captioned in the communications. Further, from the perusal of all the questioned documents, it is seen that these documents have been created in a thoughtful manner and they do not appear to have been created after obtaining the signatures of the complainant as explained above. The complainant has claimed that Anuj Chowdhary has misused the blank documents bearing the complainant's signatures in connivance with Ashok Chordia and M/s MVM Impex and has created these documents. The claim of the complainant does not hold any good for the reason that it was stated by Mr. Pawan Sabharwal and Mr. Dinesh Gulati that Anuj Chowdhary had earlier taken blank documents bearing theirs as well as the complainant's original signatures. But it is pertinent to mention here that stamp papers on which the affidavit and GPA has been prepared were sold by the stamp vendor Mr. Pankaj Bhardwaj to M/s BIL on 29.11.2008 only i.e more than three months after RTGS had been made and more than two months after the execution of ICD. Thus the signatures on the 7 of 11 Criminal Revision No.105/14 said affidavit had been made after 29.11.2008 only and not prior to the execution of ICD. Further, the complainant has claimed that he used to give blank signed documents to Anuj Chowdhary and he has misused those documents. The said claim of the complainant also does not hold good for the reason that Anuj Chowdhary was holding a position of an independent Director and had no role to play in the day to day functioning of the company. It was only a statutory requirement. Further, Mr. Dinesh Gulati, who is the brother in law of the complainant was also a director in the complainant company. Mr. Pawan Sabharwal who joined the company as Accounts executive and rose to the position of becoming Director of the company was also available. Instead of giving blank documents to Mr. Pawan Sabharwal or Mr. Dinesh Gulati, he was giving those documents to Anuj Chowdharay. This claim is unbelievable. Further, even if, the complainant's claim is taken as true, then also he was providing the documents bearing his signatures for business purpose. His claim that his signatures are below the printing would take place also in the event of any such document being used in his absence. It means that whenever he is not present or abroad, any such document which bears his signatures if required will have printing above his signatures. Thus, the claim of the complainant does not hold any good that the printing on these documents is above the signatures. In any case that claim has also been found to be baseless after the receiving of the expert's opinion.
From the above mentioned points which have come during the investigation, it has become clear that the issues relating to the payment of Rs.12 crores which had been advanced by the complainant company M/s BIL towards M/s MVM Impex (P) Ltd had been amicably settled. For this reason only, the two companies did not correspond with each other after 25.02.2009. Prior to that date, it is seen that M/s MVM Impex is seeking time to return the payment. On the part of the complaiant, he is not making any correspondence in the form of any letter or e-mail etc which gives credence to the claim of the alleged M/s MVM Impex that the matter had been amicably settled. The signatures on the four questioned documents have been found to be of the complainant only. The complainant's claim that these signatures are below the printing i.e printing overlaps the signatures, has also not found to be true as per the expert's opinion. Thus, the complainant company, M/s Brushman India Ltd's complaint has been found to be incorrect.
6. The aforesaid extract of the closure report on its bare perusal reveals that some very pertinent questions have been raised by the IO himself, the answers of which given by him do not appeal to logic. In my opinion, just because there has been no record of written communication between the complainant and the respondent, it does not necessarily imply that demand for the remaining amount (i.e Rs.9 crores after adjusting the demand draft of Rs.3 crores in favour of 8 of 11 Criminal Revision No.105/14 SIPCA by M/s MVM) was not made orally or by requesting Mr. Ashok Chordia or Mr. Anuj Chowdhary who had acted as middle men to facilitate the loan of Rs.13 crores by way of ICD agreement to M/s MVM Impex. Similarly, no answer to the question has been given by the IO as to why no share application form signed by the Director/MD of M/s BIL were found to be in the possession of M/s MVM Impex , same being a mandatory pre-requisite to issuance of shares and why the information of the allotment of the shares to the complainant was given to Registrar of Companies one year after the alleged allotment of shares.
7. It is also preplexing that if the alleged Board of Resolution deciding that the complainant shall purchase the shares of M/s MVM worth Rs. 10 crores was passed on 01.08.2008, then why was the ICD agreement granting a loan of Rs.13 crores was entered on 09.09.2008 and Rs.13 crores given on 05.08.2008 through RTGS.
8. Similarly, if the liability of M/s MVM after repaying of Rs.3 crores was Rs.9 crores, then what prevented them to issue shares worth Rs.10 crores against a receipt of Rs.7.5 crores, when M/s MVM could have adjusted the entire 9 crores and claimed Rs.1 crore from M/s BIL.
9. Also, as to why Mr.Kapil Kumar would execute Power of Attorney in favour of M/s MVM to deal with the shares allegedly purchased by the complainant company M/s BIL. It is also intriguing as to why shares worth Rs. 9 crores were not entered in the Demat account of the complainant's company if indeed shares worth Rs.nine crores were allotted to it by the accused M/s MVM Impex all these years which every share holder will do in regular course of business as a reasonable prudent person.
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10. It was observed by the IO in his closure report that all the original documents except for the promissory notes were returned by M/s BIL to M/s MVM as the entire amount had been adjusted . In this regard, a query was put to the learned counsel for the complainant who submitted that except for the post dated cheques, which were returned to M/s MVM, all the originals remained in their possession and the same were seized by the IO during the investigation. The post dated cheques were returned at the request of M/s MVM at the time when the demand draft of Rs.3 crores was handed over to M/s BIL as M/s MVM had promised to issue a fresh post dated cheque of the remaining amount. If the originals of the remaining documents were seized by the IO, then how could the IO arrive at the conclusion that all documents in original except the promissory notes were returned to M/s MVM.
11. It can also be seen from the closure report that the IO had seized only the photocopy of the alleged power of attorney claimed to have been executed on 26.02.2009 by Sh. Kapil Kumar of M/s BIL in favour of M/s MVM. It was this photocopy which was sent by the IO for forensic examination along with the other admitted signatures and questioned signatures. Judicial notice of the fact that no forensic opinion can be taken on a photocopy, to determine the authenticity of the questioned signatures and only original documents ought to have been sent.
12. The closure report also discloses that the IO heavily relied upon the forensic examination of the documents and answered all the queries highlighted by him on the basis of the opinion given by one M/s Truth Lab. M/s Truth Lab is not an independent entity and hence, 10 of 11 Criminal Revision No.105/14 approaching the same for forensic examination of disputed documents appear to be suspicious and dishonest. The IO appears to have discarded all the prima facie evidence against the respondents in the light of forensic report given by M/s Truth Lab. The IO ought to have sent the disputed documents to FSL Rohini or any other Government FSL to obtain an independent, unbiased and an impartial report.
13. The aforesaid very vital points raised go to show the connivance of the IO who has used every trick in the book to shield the respondents. Even the role of the supervisory and superior officers of the IO namely Inspector Ashu Girotra who have countersigned the closure report shows their suspicious conduct and total non-application of mind. The learned MM therefore, has grossly erred and seems to have misconducted himself as despite the glaring irregularities in the closure report he has gone to the extent of not only dismissing the Protest petition of the complainant but also dismissing the complaint itself, leaving very little scope to the complainant to recover the alleged amount. This has resulted in mis-carriage of justice. I therefore, accept the criminal revision petition and direct the Commissioner of Police to get the matter thoroughly re- investigated through an officer above the rank of ACP who has countersigned the closure report.
ANNOUNCED AND DICTATED IN ( HEMANI MALHOTRA )
OPEN COURT ON :9th October,2014 ADDL. SESSIONS JUDGE
05:CENTRE:DELHI
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