Karnataka High Court
Sri. Sandeep Gururaj vs The Station House Officer on 20 December, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION NO.6632 OF 2020
C/W
CRIMINAL PETITION NO.6969 OF 2021
CRIMINAL PETITION NO.7366 OF 2021
CRIMINAL PETITION NO.10125 OF 2021
WRIT PETITION NO.3201 OF 2021 (GM-RES)
IN CRL.P.6632/2020
BETWEEN:
1. SRI PRAVEEN SURENDIRAN
S/O SURENDIRAN SHIVARAMAKRISHNAN
AGED ABOUT 34 YEARS
R/AT MANAKIRI, 2ND CROSS
KAMARAJ THENVADAL STREET
MANAGIRI, MADURAI-525020.
2. SRI SREEKUMAR SUNDERMOORTHY
S/O SUNDARA MOORTHY SRINIVASAGAM
AGED ABOUT 48 YEARS
R/AT NO 46, JCOS COLONY
1ST CROSS, VIVEKANANDA NAGAR
BENGALURU-560072
3. SRI NITIN MEHRA
S/O PRADEEP RAJ MEHRA
AGED ABOUT 39 YEARS
R/AT NO POCKET E-237, SARITA VIHAR
2
NEW DELHI-110076
4. SRI MADHU JINDAL
W/O PRAVEEN SURENDIRAN
AGED ABOUT 36 YEARS
R/AT D NO. 2/359-1,
SHENBAGAM STREET,
GOMATIPURAM, MELAMADAI,
MADURAI-625020.
... PETITIONERS
(BY SRI D.R.RAVISHANKAR, SENIOR ADVOCATE FOR
SRI SRINIVAS RAO S.S., ADVOCATE)
AND:
1 . STATE OF KARNATAKA
BY CUBBON PARK POLICE STATION
BENGALURU-560001
REPRESENTED BY SPP
HIGH COURT BUILDING
BENGALURU-560001.
2 . SAURABH KUMAR SINGH
S/O VIJAY SHANKAR SINGH
AGED ABOUT 43 YEARS
RESIDING AT NO T3/401,
PARSVNATH PRESTIGE-2,
SECTOR 93A, NOIDA
UTTAR PRADESH-201304.
... RESPONDENTS
(BY SMT. K.P.YASHODHA, HCGP FOR R1;
SRI A.S.PONNANNA, SENIOR ADVOCATE FOR
SRI ARNAV A. BAGALWADI, ADVOCATE FOR R2)
THIS CRL.P FILED U/S.482 CR.P.C., PRAYING TO QUASH THE
COMPLAINT IN PCR NO.9076/2019 AND ALL PROCEEDINGS
ARISING THEREFORE, NOW PENDING ON THE FILE OF THE
3
LEARNED VIII A.C.M.M., BENGALURU IN C.C.NO.23541/2019, FOR
THE OFFENCE P/U/S 120B, 420, 465, 468, 471, 506, 201 OF IPC.
IN CRL.P.6969/2021
BETWEEN:
1. VINOTH KUMAR
S/O SHANKAR
AGED ABOUT 29 YEARS,
NO.84 BJANAIKOIL STREET,
SAMANTHAWADA PALLIPAT TALUK
NEDIYAM TIRUVALLUR
TAMILNADU-631207
... PETITIONER
(BY SRI D.R.RAVISHANKAR, SENIOR ADVOCATE FOR
SRI SRINIVAS RAO S.S., ADVOCATE)
AND:
1 . STATE OF KARNATAKA
BY CUBBON PARK POLICE STATION
BENGALURU-560001
REPRESENTED BY SPP
HIGH COURT BUILDING
BENGALURU-560001.
2 . SAURABH KUMAR SINGH
S/O VIJAY SHANKAR SINGH
AGED ABOUT 43 YEARS
RESIDING AT NO T3/401,
PARSVNATH PRESTIGE-2,
SECTOR 93A, NOIDA
UTTAR PRADESH-201304.
... RESPONDENTS
(BY SMT. K.P.YASHODHA, HCGP FOR R1;
SRI ATMARAM S.NADKARNI, SENIOR ADVOCATE A/W
SRI R.CHANDRACHUD &
4
SRI. SUNIL KUMAR PATEL, ADVOCATES FOR R2)
THIS CRL.P FILED U/S.482 CR.P.C., PRAYING TO QUASH THE
COMPLAINT IN PCR.NO.9076/2019 AND ALL PROCEEDINGS
ARISING THEREFORE, NOW PENDING ON THE FILE OF THE
LEARNED VIII ACMM, BENGALURU IN C.C.NO.23541/2019 FOR THE
OFFENCES P/U/S 120B, 420, 465, 468, 471, 506, 201 OF IPC.
IN CRL.P.7366/2021
BETWEEN:
1 VINOTH KUMAR
. S/O SHANKAR
AGED ABOUT 29 YEARS,
NO.84 BJANAIKOIL STREET,
SAMANTHAWADA PALLIPAT TALUK
NEDIYAM TIRUVALLUR
TAMILNADU-631207
... PETITIONER
(BY SRI D.R.RAVISHANKAR, SENIOR ADVOCATE FOR
SRI SRINIVAS RAO S.S., ADVOCATE)
AND:
1 . STATE OF KARNATAKA
BY CUBBON PARK POLICE STATION
BENGALURU-560001
REPRESENTED BY SPP
HIGH COURT BUILDING
BENGALURU-560001.
2 . SAURABH KUMAR SINGH
S/O VIJAY SHANKAR SINGH
AGED ABOUT 43 YEARS
RESIDING AT NO T3/401,
PARSVNATH PRESTIGE-2,
SECTOR 93A, NOIDA
5
UTTAR PRADESH-201304.
... RESPONDENTS
(BY SMT. K.P.YASHODHA, HCGP FOR R1;
SRI ATMARAM S.NADKARNI, SENIOR ADVOCATE A/W
SRI R.CHANDRACHUD &
SRI SUNIL KUMAR PATEL, ADVOCATES FOR
SRI ARNAV A BAGALWADI, ADVOCATE FOR R2)
THIS CRL.P FILED U/S.482 CR.P.C., PRAYING TO QUASH THE
REMAND ORDER DATED 27.08.2021 REMAINDING THE PETITIONER
TO POLICE CUSTODY AND QUASH THE REMAND THE ORDER DATED
01.09.2021 REMAINDING THE PETITIONER TO JUDICIAL CUSTODY
IN C.C.NO.23541/2019 PENDING ON THE FILE OF THE LEARNED
VIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE BENGALURU
FOR THE OFFENCE P/U/S. 120-B, 420, 465, 468, 471, 506, 201 OF
IPC.
IN CRL.P.NO.10125/2021
BETWEEN
1 . SAURABH KUMAR SINGH
S/O VIJAY SHANKAR SINGH,
AGED ABOUT 44 YEARS,
R/AT T3/401,
PARSVNATH-PRESTIGE 2,
SECTOR 93-A, NOIDA,
UTTAR PRADESH - 201304.
...PETITIONER
(BY SRI SUNIL KUMAR PATEL, ADVOCATE FOR
SRI S.K.VENKATA REDDY, ADVOCATE)
AND
1 . STATE OF KARNATAKA
CUBBON PARK POLICE STATION,
BENGALURU-560001,
REPRESENTED BY SPP,
6
HIGH COURT OF KARNATAKA,
BENGALURU-560001.
2 . SANDEEP GURURAJ
S/O.GURURAJ VENKAT RAO,
SRINIVAS RAO,
AGED ABOUT 38 YEARS,
R/AT NO.50, (NEW NO.85),
PUTTANNA ROAD, BASAVANAGUDI,
BENGALURU-560004.
...RESPONDENTS
(BY SMT. K.P.YASHODHA, HCGP FOR R1;
SRI GAUTAM SHREEDHAR BHARADWAJ, ADVOCATE FOR R2 )
THIS CRL.P FILED U/S.482 CR.P.C., PRAYING TO QUASH THE
ORDER DATED 19.08.2021 PASSED IN CRL.RP NO.33/2021 BY LXVI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY
(CCH-67) VIDE ANNEXURE-A AND SET ASIDE THE ORDER DATED
25.01.2021 PASSED IN C.C.NO.23541/2019 PENDING ON THE FILE
OF THE VIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
BENGALURU CITY VIDE ANNEXURE-B.
IN W.P. 3201/2021 (GM RES)
BETWEEN
1 . SRI. SANDEEP GURURAJ
S/O S.V.GURURAJ
AGED ABOUT 40 YEARS
R/AT 50(NEW NO.85)
PUTTANNA ROAD, BASAVANAGUDI
BENGALURU-560004
...PETITIONER
(BY SRI GAUTAM SHREEDHAR BHARADWAJ, ADVOCATE)
7
AND
1 . THE STATION HOUSE OFFICER
CUBBON PARK POLICE STATION
REPRESENTED BY ITS
SPECIAL PUBLIC PROSECUTION
2 . SRI SAURABH KUMAR SINGH
S/O VIJAY SHANKAR SINGH
AGED ABOUT 45 YEARS
R/AT T3/401, PARSVNATH PRESTIGE-2
SECTOR 93A, NOIDA,
UTTAR PRADESH-201304
...RESPONDENTS
(BY SMT. K.P.YASHODHA, HCGP FOR R1;
SRI SUNIL KUMAR PATEL, ADVOCATE FOR
SRI S.K.VENKATA REDDY, ADVOCATE FOR R2)
THIS WRIT PETITION FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO QUASH
THE ENTIRE PROCEEDINGS IN C.C.NO.23541/2019 ARISING OUT
OF PCR NO.9076 OF 2019 QUA THE PETITIONER HEREIN (I.E.,
ACCUSED NO.3) PENDING ON THE FILE OF VIII ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE AT BENGALURU. THE CERTIFIED
COPY OF THE ORDER SHEET IS C.C.NO.23541 OF 2019 IS
PRODUCED AS ANNEXURE-A.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR
ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT MADE THE FOLLOWING:-
8
ORDER
Criminal Petition No.6632 of 2020 is preferred by accused Nos. 1, 2, 4 and 5 in P.C.R.No.9076 of 2019; Writ Petition No.3201 of 2021 is preferred by accused No.3; Criminal Petition Nos. 6969 of 2021 and 7366 of 2021 are preferred by accused No.6 and Criminal Petition No.10125 of 2021 is preferred by the complainant.
Since these petitions have sprung from all the accused and the complainant in a solitary criminal case in C.C. No.23541 of 2019, the same are taken up and considered by this common order.
2. The facts adumbrated in each of the petitions are as follows:-
Criminal Petition No.6632 of 2020:
The petitioners in this case are accused Nos. 1, 2, 4 and 5 and the 2nd respondent is the complainant who would register a private complaint before the VIII Additional Chief Metropolitan Magistrate at Bangalore City in P.C.R.No.9076 of 2019 under Section 200 of the Cr.P.C., which comes to be referred for investigation to the jurisdictional Police under Section 156(3) of the 9 Cr.P.C., It is then a crime comes to be registered in Crime No.137 of 2019 against these petitioners along with others for offences punishable under Sections 120B, 420, 201, 423, 465, 468, 471, 149 and 506 of the IPC. It is the case of the complainant that accused No.2 and the complainant have started a Company called Norte Technologies India Private Limited with paid up capital of ` 5/- lakhs and accused No.2 and the complainant were 50% stake holders in the said Company. In July 2015, car service software was launched by the petitioners which helped in marketing while working with M/s OPC Asset Solutions Private Limited. The further allegation is that the Company was doing well up to October, 2015 after which, Car Dekho made an offer for investment which was valued at 3 million US dollars. It is the allegation that during that point in time, the petitioners along with other accused hatched a conspiracy to throw the 2nd respondent out of the Company by forging the signature of the complainant and creating a letter of resignation dated 31-12-2015. After that, on 29-01-2016, all the petitioners were appointed as Directors and accused No.3 was appointed as Additional Director without the consent of the complainant. It is the further allegation that accused Nos.1 and 3 10 had threatened the complainant with dire consequences for life, when he confronted them with the alleged forgery. The complaint then goes on to narrate that the shares of the complainant were illegally transferred and uploaded with the Registrar of Companies and it is at that point in time, only when his Chartered Accountant downloaded the latest balance sheet, the complainant comes to know the fraud or forgery committed by the petitioners. It is further alleged that certain signatures were taken by coercion and huge investments were made after the resignation of the complainant.
The ultimate crux is that the petitioners and other accused have eaten away ` 4/- crores of the complainant in the aforesaid acts.
After registration of the crime in Crime No.137 of 2019 against all these petitioners and others, the Police conduct investigation. The investigation leads to filing of a charge sheet before the concerned Court against the petitioners for the aforesaid offences. The learned Magistrate, then takes cognizance of the offences and registers C.C.No.23541 of 2019. On taking of cognizance, registering criminal case and issuing summons to the petitioners, the petitioners have knocked at the doors of this Court in the subject petitions.
11Writ Petition No.3201 of 2021:
This Writ petition is preferred by accused No.3. The facts that led to registration of private complaint in P.C.R.No.9076 of 2019, investigation conducted, order of the learned Magistrate taking cognizance of the offence and registering C.C.No.23541 of 2019 are all common. Therefore, facts as narrated in the petition would not require to be reiterated.
Criminal Petition Nos. 6969 and 7366 of 2021:
The subject petitions are preferred by accused No.6. The facts narrated with regard to what led to the filing of private complaint remains common even in these petitions. At the time of registration of complaint, the petitioner was not arrayed as an accused. The complaint was referred to investigation by the learned Magistrate. The charge sheet comes to be filed. At the time of filing of the charge sheet, the petitioner was not an accused. A supplementary charge sheet is filed after conduct of further investigation. It is then the petitioner gets arrayed as accused No.6. After arraigning of the petitioner as accused No.6, a remand order was sought by the Police to hand over accused No.6 to the Police 12 custody. The remand order is questioned in Criminal Petition No.7366 of 2021 and all the proceedings in Criminal Petition No.6969 of 2021. The two give rise to two different causes of action. But, today Criminal Petition No.6969 of 2021 assumes significance, as the entire proceedings in C.C.No.23541 of 2019 are challenged.
Criminal Petition No.10125 of 2021:
This petition is preferred by the complainant against certain actions of accused No.6. Therefore, the facts that are obtaining in Criminal Petition No.6969 of 2021 and Criminal Petition No.7366 of 2021 would become the facts of the case at hand as well. Therefore, they are not reiterated.
3. Heard Sri D.R.Ravishankar, learned senior counsel appearing for petitioner in Crl.P.No.6632 of 2020, 6969 of 2021 and 7366 of 2021, Sri.A.S.Ponnanna, learned senior counsel appearing for respondent No.2 in Crl.P.No.6632 of 2020 and Sri Atmaram S Nadkarni, learned senior counsel appearing for respondent No.2 in Crl.P.Nos.6969 of 2021 and 7366 of 2021; Sri Sunil Kumar Patel, 13 learned counsel appearing for petitioner in Crl.P.No.10125 of 2021 and respondent No.2 in W.P.No.3201 of 2021; Sri Gautam Shreedhar Bharadwaj learned counsel appearing for petitioner in W.P.No.3201 of 2021 and respondent No.2 in Crl.P.No.10125 of 2021 and Smt.K.P.Yashodha, High Court Government Pleader appearing for respondent No.1 in all the petitions.
4. The learned senior counsel appearing for accused Nos. 1, 2, 3, 4 and 5 would vehemently contend that the complaint so registered is hit by various illegalities. He would submit that it is contrary to the judgment rendered by the Apex Court in the case of PRIYANKA SRIVASTAVA v. STATE OF U.P. - (2015) 6 SCC 287, as the learned Magistrate has entertained the complaint without it being accompanied by an affidavit and, therefore, the complaint reference and all further proceedings taken thereto, would get vitiated; the learned Magistrate has not applied his mind, while referring the complaint to investigation under Section 156(3) of the Cr.P.C., and, therefore, the proceedings are vitiated; a case which is purely contractual in nature is sought to be given a colour of crime and the complainant voluntarily tendered his resignation, 14 wakes up after three years and registers a complaint which ought not to have been entertained by the learned Magistrate. There is no forgery as is alleged in the case at hand and if it were to be a forged document, the complainant ought to have, without any loss of time registered the crime. Having not done so, it is not open to the complainant now to contend that the documents are forged and loss of ` 4/- crores has happened due to acts of the accused. He would seek quashment of entire proceedings.
5. Per-contra, the learned counsel representing the complainant would vehemently refute the submissions by seeking to contend that the issue in the case involves seriously disputed questions of fact. If there are seriously disputed questions of fact, this Court in exercise of its jurisdiction under Section 482 of the Cr.P.C., should not interfere, as it would become a matter of trial.
He would submit that the case is at the stage of framing of charges.
At the stage of framing of charges, this Court would not enter into the evidence that has led to filing of the charge sheet and annul entire proceedings. He would submit that the petitioners have not madeout any case for interference.
156. The learned High Court Government Pleader representing the State would also toe the lines of the learned counsel representing the complainant to contend that it is a matter of trial for the petitioners to come out clean, as the charges would be framed and trial would be conducted by the concerned Court. If the petitioners are able to establish their innocence, they would be acquitted and it is not the stage where this Court should interfere under Section 482 of the Cr.P.C.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
8. The afore-narrated facts that led to registration of crime are a matter of record. What triggered registration of crime is the complaint so registered by the 2nd respondent/complainant.
Therefore, I deem it appropriate to notice certain paragraphs of the complaint so registered and it reads as follows:
"MEMORANDUM OF COMPLAINT FILED U/SEC.200 OF CODE OF CRIMINAL PROCEDURE, 1973.16
The complainant herein submits as under:-
1. .. .. ..
2. Complainant was pursuing a job at Delhi. A1/Praveen Surendiran was an employee with M/s OPC Assets Solutions Private limited, Mumbai. A2/Sreekumar Sundaramoorthy was a freelancer software developer at Bengaluru.
The complainant with A1/Praveen Surendiran and A2/Sreekumar Sundaramoorthy thought of a business plan in 2014-15 for launching software-based manpower service to car service and repair centres. The complainant quit his job for the business plan in 2015.
3. Further complainant and A2/Sreekumar Sundaramoorthy had co-founded a company, i.e., M/s NORTE TECHNOLOGIES INDIA PRIVATE LIMITED, at Bengaluru [#114-219, Brigade Arcade, Whitefield Road, GC Playa, Bengaluru-560 048] (for short M/s NTI Pvt. Ltd.) [The address found on Website of M/s NTI Pvt.Ltd. is Cowrks, RMZ Infinity, Ground Floor, No.3, Old Madras Road, Benniganahalli, Bengaluru-560 016] on 25th February 2015 respectively. Initial paid up capital for M/s NTI Pvt.Ltd. was `5/- lakhs. A2/Sree Kumar Sundaramoorthy and complainant were 50%-50% shareholders and directors in the company with 25,000 shares each with face value of `10/- each share.
4. Since, financial conditions of A2/Sreekumar Sundaramoorthy was not sufficient to pay for his shares, the complainant provided a loan of `2.50 lakhs to A2/Sreekumar Sundaramoorthy (to his Axis Bank Account) to pay his part of investment. Hence, 100% initial investment of `5/- lakhs for the said company was paid by the complainant only. Copy of Memorandum of Association, Application and Certificate of Incorporation are herewith produced Annexures-1 to 3.
5. A2/Sreekumar Sundaramoorthy, being software & technology expert, has developed the software. Product was launched in July 2015 in the market and was getting a good response from the customers/Car service stations. A1/Praveen Surendiran was helping the complainant and 17 A2, in marketing while working with a Mumbai based company, M/s OPC Asset Solutions Pvt. Ltd., Mumbai.
6. The complainant was the only person who was funding the company and total investment of complainant was approx. `40.00 lakhs excluding remuneration for his efforts. In October 2015, M/s NTI Pvt.Ltd., Bengaluru got the offer for investment from Car Dekho of M/s Girnar Software Pvt.Ltd. Jaipur (for short 'GSPL', Jaipur) company at the valuation of USD 3.00 million (equivalent to `21.00 crore). The copy of offer letter is herewith produced as Annexure-4.
7. A1/Praveen Surendiran, A2/Sreekumar Sundaramoorthy, being close associates of A3/Sandeep Gururaj - who was working as asst. General Manager, Finance, at Manipal Education and Manipal Group International Pvt.Ltd., Vittal Mallya Road, Bengaluru- 560 001 (within the jurisdiction of Cubbon Part Police Station) joined hands at the office of MEMG, Vittal Mallya Road, Bengaluru, hatched the criminal conspiracy to forge the signature of the complainant on certain documents, fabricated certain documents to cheat the complainant and planned to use the forged and fabricated documents as genuine documents, planned to play fraud on the complainant as detailed in paras 8 to 20 of this complaint.
8. After offer from Car Dekho of GSPL, Jaipur Company, A1/Praveen Surendiran, A2/Sreekumar Sundaramoorthy, A3/Sandeep Gururaj, A4/Nitin Mehra & A5/Madhu Jindal became greedy and they hatched a criminal conspiracy to throw the complainant out of the company/ M/s NTI Pvt. Ltd., Bengaluru. Subsequently, A1/ Praveen Surendiran, A5/Madhu Jindal (wife of A1/Praveen Surendiran), A4/Nitin Mehra and A3/Sandeep Gururaj, both associates of A1, were introduced as directors in the company/ M/s NTI Pvt.Ltd., Bengaluru and allotted shares as well.
9. A5/Madhu Jindal was appointed as Director of M/s Norte Technologies India Pvt. Ltd. on 27th May 2015 and subsequently 16,668 shares were allotted to her after- wards. Meanwhile, A1/Praveen Surendiran was forced to resign from M/s OPC Asset Solutions, as it came to know 18 about his working for M/s Norte Technologies India Private Limited. He later started working fulltime from October 2015 onwards. At this juncture, the complainant was working from Delhi, A2/Sreekumar Sundaramoorthy, A5/ Madhu Jindal and A1/Praveen Surendiran were working from Bengaluru, whereas A3/Sandeep Gururaj was providing financial consultancy services and offered investment/loan to M/s Norte Technologies India Private Limited. The copy of invitation for appointment, AGM minutes and appointment of Madhu Jindal as Director is herewith produced as Annexure-5.
10. Accused 1 to 5 forged the signature of complainant and prepared document purporting to be resignation letter from Board of Directors and another document purporting to be resignation letter from Director of M/s NTI Pvt. Ltd., Bengaluru, both dated 31-12-2015. Downloaded copies from ROC web portal are herewith produced as Annexures-6 and 7.
11. To the utmost surprise and shock to the complainant, the complainant found that his name as a shareholder and director from M/s NTI Private Limited was deleted from the documents, which were filed with Registrar of Companies. The complainant was shown as "RESIGNED" as on 31st December 2015 from the Board of Directors. The copy of the Form No.DIR-12, authorized by the Board of Directors of the Company vide No.4 dated 29.01.2016 showing resignation details of complainant as Director and from the Board of Director with forged signatures is herewith produced as Annexure-8.
12. It was reliably learnt from ROC documents that A1/Praveen Surendiran and A4/Nitin Mehra were appointed as Directors in M/s NTI Private Limited, Bengaluru on 29th January 2016 and A3/Sandeep Gururaj was appointed as an Additional Director on 1st February 2016 in M/s NTI Private Limited, Bengaluru and 2.0% share were allotted to A3/Sandeep Gururaj for `50.00 lakh. Appointment of A1/ Praveen Surendiran, A4/Nitin 19 Mehra & A3/Sandeep Gururaj was done without the consent or knowledge of the complainant. A3/Sandeep Gururaj was later appointed as Director in the company, M/s NTI Pvt. Ltd., Bengaluru. The copy of the same is herewith produced as Annexure-9.
13. Further, the complainant came to know about the forgery, with his CA downloaded the latest balance sheet and other documents from ROC web portal. The complainant was shocked and surprised to see the cheating and forgery, committed by the Accused, to cheat the complainant and when the complainant objected to their misdeeds, A3/Sandeep Gururaj, A1/Praveen Surendiran and A2/Sreekumar Sundaramoorthy threatened the complainant with dire consequences and threat to his life, if the complainant report it to competent authorities against their misdeeds.
14. M/s NTI Pvt. Ltd., Bengaluru/ by accused 1 to 5 appointed A7/Nagaraju as statutory Auditor on 25.02.2015. Copy of which is produced as Annexure-10. A6/Jyotika Kamath was assisting the company in maintaining books of accounts etc.
15. The complainant's 50% shares (25,000 shares)were illegally transferred & uploaded the same with ROC. Shareholding patterns of 50,000 shares as per the annual return of financial year 2014-15, 2015-16, 2016-17 and 2017-18 shows as following and the same is herewith produced as Annexure-11 to 14 respectively.
Number of Shares
Names FY FY FY FY
2014- 2015- 2016- 2017-
15 16 17 18
Saurabh Kumar 25,000 0 0 0
Singh
(complainant)
A2/Sreekumar 25,000 16,666 16,666 16,666
Sundaramoorthy
A5/Madhu Jindal NA 16,668 16,668 0
20
A1/Praveen NA 15,666 15,666 33,334
Surendiran
A3/Sandeep NA 1,000 1,000 0
Gururaj
A4/Nitin Mehra NA 0 0 0
16. The said activities of Accused 1 to 5 indicates that A1/ Praveen Surendiran, A5/Madhu Jindal and A3/Sandeep Gururaj were the Directors, beneficiary of the forgery committed by the accused, for cheating the complainant, using the forged documents as geuine.
17. A1/Praveen Surendiran. A2/Sreekumar Sundaramoorthy, A5/Madhu Jindal and A3/Sandeep Gururaj kept ignoring the complainant's repeated mails, messages and phone calls. The complainant was very disappointed, distressed and went into depression. The complainant also reported the issue to their CA A7/Nagaraju A and CS A6/Jyotika Kamath as they were responsible for the compliance, as this was very serious non-compliance and fraud on their part too, but all efforts went in vain. The copy of the same is herewith produced as Annexure-15.
18. All the accused, including A3/Sandeep Gururaj, A1/Praveen Surendiran, A5/Madhu Jindal, A7/Nagaraju A & A6/Jyotika Kamath forced, coerced and threatened the complainant to sign a document (which was not read over to the complainant or not allowed him to read), take part of the money, the complainant had invested or to face dire consequences of the complainant's life, if he comes to Bengaluru again.
19. The complainant refused to sign such a document as he was suspicious about the activities of accused and their planned investment deal with M/s Europ Assistance, French Company, having office at Mumbai, India at a much higher valuation. Hence, the complainant demanded the proportionate share in the upcoming transaction with M/s Europ Assistance, French Company, having office at Mumbai, India. They/Accused continued to refuse the complainant's demand, so the complainant called and spoke to A3/Sandeep Gururaj in the month of May 2017, As A3/Sandeep Gururaj was actively involved 21 in the company - M/s Norte Technologies India Pvt.Ltd., to respect the complainant's legitimate demand. A3/Sandeep Gururaj then asked the complainant to sign the no objection agreement and take back complainant's investment money and also threatened the complainant with dire consequences to the complainant's life, if he do not sign the agreement. Also, A3/Sandeep Gururaj even refused to return the complainant's initial investment without signing the document. The complainant was scared and felt threatened, so he agreed to their demand unwillingly. A4/Nitin Mehra reached Delhi and the complainant met him on 3rd August 2017 at Nehru Palace, Delhi. The complainant signed the no objection agreement there only, under threat and coercion. Subsequently, A1/ Praveen Surendiran online transferred Rs.20/- lakhs on the same day to Bank account of complainant, from his personal account to cover up their crime.
20. Later the complainant learnt from Neswspaper and other sources that accused transferred all rights of M/s NTI Private Limited, Bengaluru to M/s Europ Assistance through M/s ONB Technologies, India, at Bengaluru and all shareholders/Directors got benefitted of USD 1.00 million (equivalent to `7.00 crore) at least. They formed another company namely M/s ONB Technologies Pte, Singapore.
At this point of time, A1/Praveen Surendiran & A2/ Sreekumar Sundaramoorthy were Directors of M/s ONB Technologies Pte.Ltd., Singapore and A5/Madhu Jindal & A4/Nitin Mehra are Directors in M/s ONB Technologies, India. M/s ONB Technologies Pre, Singapore holds 99.99% share in M/s ONB Technologies India and A4/Nitin Mehra is representing M/s ONG Technologies, Singapore in its Indian subsidiary.
21. This activities of Accused traumatized the complainant completely and the complainant suffered depression for several months and lost hope in life. With the support of complainant's family & friends, somehow the complainant got encouraged and re-started his life from the scratch. During all these days, the complainant could not get 22 enough courage to report the crime committed by all the accused.
22. Recently after coming to know about the misdeeds of A3/Sandeep Gururaj from Newspaper, the complainant got some courage to file complaint and requested to take appropriate legal action against A1/Praveen Surendiran, A2/Sreekumar Sundaramoorthy, A3/Sandeep Gururaj, A4/Nitin Mehra, A5/Madhu Jindal, A6/Jyotika Kamath and A7/Nagaraju A, for the misdeeds committed by them, by filing a complaint, dated 16.07.2019, before Cubbon Park Police Station, Bengaluru.
No serious action has been taken by the said Police Station. It was brought to the notice of jurisdictional SP/DCP. Hence, this complaint. The copy of the complaint dated 16-07-2019 and the acknowledgements are herewith produced as Anenxures-16.
23. Consequently, due to the offences committed by all the accused, the complainant has suffered loss of `50/- lakhs, initial funding to M/s NTI Pvt.Ltd., Bengaluru, 50%of amount from proceeds of transfer of all rights of M/s NTI Pvt.Ltd., Bengaluru to M/s Europ Assistance, as stated earlier, for `7/- crores, i.e., `3.5 crores and in total `4/- crores. Hence, this complaint.
PLACE OF OFFENCE:
24. As the alleged offences as detailed in paras 7 of this complaint took place at Vittal Mallya Road, in the office of MEMG, have been committed by accused within the jurisdiction of Cubbon Park Police Station, which is within the jurisdiction of this Hon'ble Court at Bengaluru.
JURISDICTION:
25. Since the offence is committed at Bengaluru as stated above, within the jurisdiction of this Hon'ble Court. Hence, this Hon'ble Court has jurisdiction to try the accused for the offence punishable u/Sec. 120-B IPC, Sec. 420 r/w Sec.149 IPC, Sec.423 r/w Sec.149 IPC., Sec.465 r/w Sec.149 IPC, Sec.468 r/w Sec. 149 IPC, Sec. 471 r/w 23 Section 149 IPC, Sec.506 r/w Sec.149 IPC and hence, this complaint is presented before this Hon'ble Court.
LIMITATION
26. This petition is within time, in view of provisions u/s sec. 468 of Cr.P.C., as the offence punishable u/secs. 120-B IPC Sec. 420 r/w Sec.149 IPC, Sec.423 r/w Sec.149 IPC., Sec. 465 r/w Sec.149 IPC, Sec.468 r/w Sec. 149 IPC, Sec. 471 r/w Section 149 IPC, Sec.506 r/w Sec.149 IPC and certain offences are punishable with imprisonment for 7 years and fine, cognizable, non-bailable and triable by Court of JMFC/CJM, at Bengaluru.
PRAYER WHEREFORE, the complainant prays that this Hon'ble Court be pleased to take cognizance of offence, punishable u/Sec. 120-B IPC, Sec. 420 r/w Sec.149 IPC, Sec.423 r/w Sec.149 IPC., Sec.465 r/w Sec.149 IPC, Sec.468 r/w Sec. 149 IPC, Sec. 471 r/w Section 149 IPC, Sec.506 r/w Sec.149 IPC against all the Accused, on this complaint and proceed u/sec.200 Cr.P.C. and try the accused, in accordance with law, in the interest of justice.
In the alternative Refer the complaint u/sec.156(3) Cr.P.C. to the Cubbon Park Police Station, Bengaluru to investigate and report, in accordance with law, in the interest of justice."
(Emphasis added) The complainant narrates several circumstances right from 2015 to 2019. It is his claim that he comes to know of cheating and forgery committed by the accused in the year 2018-19 when the share 24 holding pattern changed. The complainant also narrates that he was threatened on several occasions. This complaint leads to directing investigation to be conducted by the jurisdictional police by referring the matter under Section 156(3) of the Cr.P.C., The reference leads to conduct of investigation. The conduct of investigation leads to filing of charge sheet. The filing of charge sheet as obtaining in Column No.7 reads as follows:
"7. ¢:23/07/2019 gÀAzÀÄ ªÀiÁ£Àå 8£Éà J¹.JA.JA £ÁåAiÀiÁ®AiÀÄ ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀ gÀªÀjAzÀ ¹éÃPÀj¹zÀ ¦.¹.Dgï £ÀA: 9076/2019 gÀ zÀÆj£À ¸ÁgÀA±ÀªÉãÉAzÀgÉ ¸ÁQë 1 gÀªÀgÁzÀ ²æà ¸ËgÀ¨ï PÀĪÀiÁgï ¹AUï gÀªÀgÀÄ DgÉÆæ 2 ²æÃPÀĪÀiÁgï ©£ï ¸ÀÄAzÀgïªÀÄÆwð gÀªÀgÀ eÉÆvÉ ¸ÉÃj £ÁxÀð mÉPÀ£Á®f ¥ÉæöÊ ° JA§ PÀA¥À¤AiÀÄ£ÀÄß 2015 gÀ ¥sÉçæªÀj wAUÀ½£À°è ¥ÁægÀA©ü¹zÀÄÝ, £ÀAvÀgÀ DgÉÆæ -2 gÀªÀgÀ §½ ºÀÆrPÉ ªÀiÁqÀ®Ä ºÀt«®èzÀ PÁgÀt ¸ÁQë 1 gÀªÀgÉ PÀA¥À¤AiÀÄ ¨É¼ÀªÀtÂUÉUÁV MlÄÖ 40 ®PÀë gÀÆUÀ¼À£ÀÄß ºÀÆrPÉ ªÀiÁrgÀÄvÁÛgÉ. £ÀAvÀgÀ ¸ÁQë 1 gÀªÀjUÉ w½AiÀÄzÀ ºÁUÉ DgÉÆæ 1 ¥Àæ«Ãt ¸ÀÄgÉAzÀæ£ï gÀªÀgÀÄ DgÉÆæ 2 jAzÀ 5 gÀªÀgÉÆA¢UÉ ¸ÉÃj M¼À¸ÀAZÀÄ £Àqɹ, ªÀAZÀ£É ªÀiÁqÀĪÀ ¸ÀªÀiÁ£À GzÉÝñÀ¢AzÀ ¢£ÁAPÀ: 27/05/2015 gÀAzÀÄ DgÉÆæ 1 gÀªÀgÀ ºÉAqÀw DgÉÆæ 5 gÀªÀgÀ£ÀÄß AiÀiÁªÀÅzÉà ºÀÆrPÉ ºÀt«®èzÉ, PÀA¥À¤AiÀiÁ qÉÊgÉPÀÖgï DV ¸ÉÃj¹PÉÆAqÀÄ £ÀAvÀgÀ 2015 gÀ r¸ÉA§gï wAUÀ½£À°è DgÉÆæ 1 jAzÀ 5 gÀªÀgÀÄ ¸ÉÃj¹PÉÆAqÀÄ, ¸ÁQë 1 gÀªÀgÀ gÁfãÁªÉÄ ¥ÀvÀæªÀ£ÀÄß vÀAiÀiÁj¹ CzÀPÉÌ ¦AiÀiÁðzÀÄzÁgÀgÀ PÉÆnÖ ¸À» ªÀiÁr ¦AiÀiÁðzÀÄzÁgÀgÀ£ÀÄß PÀA¥À¤AiÀÄ ¨ÉÆÃqïð D¥sï qÉÊgÉPÀÖgï ºÁUÀÆ µÉÃgÀÄzÁgÀgÀ ¥ÀnÖ¬ÄAzÀ vÉUÉzÀĺÁQgÀÄvÁÛgÉ. ¸ÀzÀj «µÀAiÀĪÀ£ÀÄß ¸ÁQë 1 gÀªÀgÀÄ PÀA¥À¤AiÀÄ qÉÊgÉPÀÖgï DV £ÉêÀÄPÀªÁVgÀÄvÁÛgÉ. £ÀAvÀgÀ ¸ÁQë 1 gÀªÀgÀÄ ºÀ®ªÁgÀÄ ¸Áj DgÉÆæUÀ¼À£ÀÄß ºÀÆrPÉAiÀÄ ªÉÆvÀÛªÀ£ÀÄß ªÁ¥À¸ï PÉÆqÀĪÀAvÉ PÉýzÀÄÝ DgÉÆæUÀ¼ÀÄ M¦àgÀĪÀÅ¢®è. £ÀAvÀgÀ 2017 gÀ DUÀ¸ïÖ wAUÀ½£À°è ¸ÁQë 1 gÀªÀgÀ£ÀÄß PÀgɹPÉÆAqÀÄ 20 ®PÀë ºÀtªÀ£ÀÄß ¤Ãr, MvÁÛAiÀÄ¢AzÀ ¸ÁQë 1 gÀªÀgÀ §½ ¸À¥sÀgÉñÀ£ï DVæªÉÄAmï UÉ ¸À» ºÁQ¹gÀÄvÁÛgÉ, ¸ÀzÀj µÉÃgÀÄUÀ¼À£ÀÄß PÉÆqÀ®Ä PÉýzÁUÀ DgÉÆæUÀ¼ÀÄ ¥Áæt ¨ÉzÀjPÉ ºÁQgÀÄvÁÛgÉ.
DzÀÝjAzÀ DgÉÆæ 1 jAzÀ 5 gÀªÀgÀUÀ¼À «gÀÄzÀÞ ªÉÄîÌAqÀ PÀ®A ¥ÀæPÁgÀ zÉÆõÁgÉÆÃ¥Àt ¥ÀnÖ."
(Emphasis added) 25 The charge sheet was initially filed and additional charge sheets have been filed in the case at hand. The entire issue revolves around maize of facts which are seriously disputed. There are opinions of Foreign Science Laboratories, one of which forms part of original charge sheet and the other which forms part of additional charge sheet, both of which indicate that there appears to be forgery of the signature of the complainant qua the letter of resignation. The opinion of the Foreign Science Laboratory which forms part of the charge sheet initially filed against A1 to A5 is opinionated as follows:
"OPINION In view of the above noted observations and considering them cumulatively, the following is my opinion:-
The Disputed signature marked Q-1 on the letter addressed to the Board of Directors Norte Technologies India private limited dated 31-12-2015 provides a strong prima facie evidence of not having been written by the author of the standard signature marked S-series.
RECOMMENDATION At the present report is based on the examination of the signatures (disputed and standard) available on the Xerox copies, it is necessary and desirable to examine their originals extensively at an appropriate stage.
Sd/- (ASHOK KASHYAP) EXAMINER OF QUESTIONED DOCUMENTS.
Dated: 29-08-2019."26
The opinion is secured by the prosecution from a particular laboratory by name Kashyap's International Forgery Detection Bureau. A second opinion is also taken from Truth Labs which also confirms the disputed signature as observed hereinabove. What would unmistakably emerge is that, if there is a doubt with regard to the signature of the foundational document to the entire proceedings i.e., the letter of resignation said to have been tendered by the complainant, it requires evidence in the least. It is always open to the concerned criminal Court to draw a further forensic examination of documents in the event of need arising at the time of conduct of further proceedings. Voluminous papers as charge sheet and additional charge sheets are filed against the petitioners in all these cases barring writ petition which is filed by the complainant. Therefore, in these circumstances of seriously disputed questions of fact, whether this Court could interfere on the plea set up by the petitioners is required to be considered. The consideration of which need not detain this Court for long, as the Apex Court from time to time has observed that when the High Court exercising its jurisdiction under Section 482 of the Cr.P.C., is posed with seriously disputed questions of fact, it should be loathe 27 to interfere to quash the proceedings. The case at hand has travelled a little further, as charge sheet and additional charge sheets are filed and the matter is set down for trial.
9. It is not a case where this Court can indulge in a rowing enquiry of examination of each of the documents and consider the case of the petitioners and obliterate the crime. Therefore, I deem it appropriate to notice the line of law as observed by the Apex Court which directs non-interference in the cases of the kind at hand, which involve offences of forgery and cheating and those being prima facie made qua plethora of documents which form part of the charge sheet or additional charge sheet.
10. The Apex Court in the case of M.VISWANATHAN v. S.K. TILES AND POTTERIES PRIVATE LIMITED1 has held as follows:
"12. "8. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order 1 (2008) 16 SCC 390 28 under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice.
It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle 'quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest' (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what 29 the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
9. In R.P. Kapur v. State of Punjab [AIR 1960 SC 866] this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings: (AIR p. 869, para 6)
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
10. In dealing with the last case, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed 30 over to an accused to short-circuit a prosecution and bring about its sudden death.
11. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335: 1992 SCC (Cri) 426]. A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows: (SCC pp. 378-79, para 102) '(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a 31 just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.' As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard- and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305: 1993 SCC (Cri) 36] and Raghubir Saran (Dr.) v. State of Bihar [AIR 1964 SC 1].] It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the 32 proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. [See Dhanalakshmi v. R. Prasanna Kumar [1990 Supp SCC 686: 1991 SCC (Cri) 142], State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222: 1992 SCC (Cri) 192: AIR 1991 SC 1260], Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194: 1995 SCC (Cri) 1059], State of Kerala v. O.C. Kuttan [(1999) 2 SCC 651: 1999 SCC (Cri) 304: AIR 1999 SC 1044], State of U.P. v. O.P. Sharma [(1996) 7 SCC 705: 1996 SCC (Cri) 497], Rashmi Kumar v. Mahesh Kumar Bhada [(1997) 2 SCC 397: 1997 SCC (Cri) 415], Satvinder Kaur v. State (Govt. of NCT of Delhi) [(1999) 8 SCC 728: 1999 SCC (Cri) 1503: AIR 1999 SC 3596] and Rajesh Bajaj v. State (NCT of Delhi) [(1999) 3 SCC 259 : 1999 SCC (Cri) 401] .]"
The above position was recently highlighted in Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122: 2005 SCC (Cri) 283] , at SCC pp. 127-30, paras 8-11.
13. In the instant case, the only conclusion arrived at by the High Court is in para 23 of the 33 judgment which has been quoted above. The High Court has wrongly come to the conclusion that the matter in issue has to be decided by a civil court or the Company Law Board. The High Court had referred to four types of allegations. Some of the allegations are certainly not adjudicable by the civil court or the Company Law Board. That being so the exercise of jurisdiction by the High Court in terms of Section 482 CrPC cannot be maintained. The impugned order is indefensible and is set aside."
(Emphasis supplied) The Apex Court in the case of CHIRAG M.PATHAK v. DOLLYBEN KANTILAL PATEL2 has held as follows:
"22. In our view, such issues and many more, namely, the nature and manner of conspiracy, whether it was confined to each society or there was one or larger conspiracy, how and in what manner it was accomplished, who were parties to it, who were those persons who secured financial benefits, what was the modus operandi for misappropriation of the funds of each society and how the funds were siphoned off from each society, etc., need detailed investigation with respect to each cooperative society. Once the investigation is complete in relation to each society, the same would form part of the separate charge- sheet for being proved with the aid of evidence in a competent court against each society and persons involved in the scam. It is for the court to examine the factual issues arising in every case by appreciating the evidence once adduced in support thereof and pass appropriate orders in accordance with law.
23. The High Court, in exercise of its powers under Section 482 of the Code, cannot undertake a detailed examination of the facts contained in the FIRs by acting as an appellate court and draw its own 2 (2018) 1 SCC 330 34 conclusion. It is more so when investigation in other societies is not yet complete."
(Emphasis supplied) Later, the Apex Court in the case of DR. LAKSHMAN v. STATE OF KARNATAKA3 has held as follows:
"9. The learned Senior Counsel Shri R. Basant appearing for the accused, in support of his case, relied on the judgment of this Court in S.W. Palanitkar v. State of Bihar [S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241: 2002 SCC (Cri) 129] and submitted that every breach of contract may not result in a penal offence, but in the very same judgment, this Court has held that breach of trust with mens rea gives rise to a criminal prosecution as well. In a given case, whether there is any mens rea on the part of the accused or not is a matter which is required to be considered having regard to the facts and circumstances of the case and contents of the complaint, etc. In the case on hand, it is clearly alleged that even before entering into the agreement dated 26-9-2012, lands were already sold to third party, which were agreed to be procured in favour of the appellant. Not only that, it is the specific allegation of the complainant that the cheques were issued towards security from the account which was also closed much earlier to the date of agreement itself.
10. The learned counsel also relied on the judgment in Anil Mahajan v. Bhor Industries Ltd. [Anil Mahajan v. Bhor Industries Ltd., (2005) 10 SCC 228: (2006) 1 SCC (Cri) 746] but in the very same judgment it is also held that where there exists a fraudulent and dishonest intention at the time of the commission of the offence, law permits the victim to proceed against the wrongdoer for having committed an offence of criminal breach of trust or cheating. In another case relied on by the learned counsel viz. Inder Mohan 3 (2019) 9 SCC 677 35 Goswami v. State of Uttaranchal [Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1: (2008) 1 SCC (Cri) 259] this Court has reiterated the scope of power of the High Court under Section 482 CrPC. Having regard to the facts of the case, we are of the view that the said judgments relied on by the learned counsel would not support the case of the respondents. It is also to be noticed that in the complaint filed in PCR No. 14420 of 2015, investigation has been completed and charge-sheet was also filed on 22-12-2015."
(Emphasis supplied) After all the afore-quoted judgments, the Apex Court in the case of KAPTAN SINGH v. STATE OF UTTAR PRADESH4 has held as follows:-
"9.1. At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 CrPC has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 CrPC quashed the criminal proceedings, by the time the investigating officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 4 (2021)9 SCC 35 36 CrPC was at the stage of FIR in that case the allegations in the FIR/complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation.
Even at this stage also, as observed and held by this Court in a catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai Patel v. State of Gujarat, (2018) 3 SCC 104 : (2018) 1 SCC (Cri) 683] in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the investigating agency nor can exercise the powers like an appellate court. It is further observed and held that that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the investigating authority at such stage to probe and then of the court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.
9.2. In Dhruvaram Murlidhar Sonar [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 :
(2020) 3 SCC (Cri) 672] after considering the decisions of this Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , it is held by this Court that exercise of powers under Section 482 CrPC to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 CrPC though wide is to be exercised 37 sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in the section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 CrPC. Similar view has been expressed by this Court in Arvind Khanna [CBI v. Arvind Khanna, (2019) 10 SCC 686 : (2020) 1 SCC (Cri) 94] , Managipet [State of Telangana v. Managipet, (2019) 19 SCC 87 : (2020) 3 SCC (Cri) 702] and in XYZ [XYZ v. State of Gujarat, (2019) 10 SCC 337 : (2020) 1 SCC (Cri) 173] , referred to hereinabove.
9.3. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.
10. The High Court has failed to appreciate and consider the fact that there are very serious triable issues/allegations which are required to be gone into and considered at the time of trial. The High Court has lost sight of crucial aspects which have emerged during the course of the investigation. The High Court has failed to appreciate and consider the fact that the document i.e. a joint notarised affidavit of Mamta Gupta Accused 2 and Munni Devi under which according to Accused 2 Ms Mamta Gupta, Rs 25 lakhs was paid and the possession was transferred to her itself is seriously disputed. It is required to be noted that in the registered agreement to sell dated 27- 10-2010, the sale consideration is stated to be Rs 25 lakhs and with no reference to payment of Rs 25 lakhs to Ms Munni Devi and no reference to handing over the possession. However, in the joint notarised affidavit of the same date i.e. 27-10-2010 sale consideration is stated to be Rs 35 lakhs out of which Rs 25 lakhs is alleged to have been paid and there is a reference to transfer of possession to Accused 2. Whether Rs 25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said document and payment of Rs 25 lakhs as mentioned in the joint notarised affidavit dated 27-10-2010. It is also required to be considered that the first agreement to sell in which Rs 25 lakhs is stated to be sale consideration and there is reference 38 to the payment of Rs 10 lakhs by cheques. It is a registered document. The aforesaid are all triable issues/allegations which are required to be considered at the time of trial. The High Court has failed to notice and/or consider the material collected during the investigation.
11. Now so far as the finding recorded by the High Court that no case is made out for the offence under Section 406 IPC is concerned, it is to be noted that the High Court itself has noted that the joint notarised affidavit dated 27-10-2010 is seriously disputed, however as per the High Court the same is required to be considered in the civil proceedings. There the High Court has committed an error. Even the High Court has failed to notice that another FIR has been lodged against the accused for the offences under Sections 467, 468, 471 IPC with respect to the said alleged joint notarised affidavit. Even according to the accused the possession was handed over to them. However, when the payment of Rs 25 lakhs as mentioned in the joint notarised affidavit is seriously disputed and even one of the cheques out of 5 cheques each of Rs 2 lakhs was dishonoured and according to the accused they were handed over the possession (which is seriously disputed) it can be said to be entrustment of property. Therefore, at this stage to opine that no case is made out for the offence under Section 406 IPC is premature and the aforesaid aspect is to be considered during trial. It is also required to be noted that the first suit was filed by Munni Devi and thereafter subsequent suit came to be filed by the accused and that too for permanent injunction only. Nothing is on record that any suit for specific performance has been filed. Be that as it may, all the aforesaid aspects are required to be considered at the time of trial only.
12. Therefore, the High Court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was exercising the appellate jurisdiction and/or conducting the trial. The High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.
3913. Even the High Court has erred in observing that original complaint has no locus. The aforesaid observation is made on the premise that the complainant has not placed on record the power of attorney along with the counter filed before the High Court. However, when it is specifically stated in the FIR that Munni Devi has executed the power of attorney and thereafter the investigating officer has conducted the investigation and has recorded the statement of the complainant, accused and the independent witnesses, thereafter whether the complainant is having the power of attorney or not is to be considered during trial.
14. In view of the above and for the reasons stated above, the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 CrPC is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Now, the trial is to be conducted and proceeded further in accordance with law and on its own merits. It is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 CrPC only and the trial court to decide the case in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us hereinabove. The present appeal is accordingly allowed."
(Emphasis supplied) On a coalesce of the judgments rendered by the Apex Court, what would unmistakably emerge is that, this Court should display hands off when the issue that is brought before it involves maize of facts which are seriously disputed. It is not as simple as projection of the petitioners qua the issues, they involve cheating, forgery and 40 conspiracy, all of which require a full blown trial for the petitioners to come out clean.
11. Particularly in the cases involving forgery, the Apex Court in the case of STATE OF MADHYA PRADESH v. YOGENDRA SINGH JADON5 has held as follows:
"5. We find that the High Court has examined the entire issue as to whether the offence under Sections 420 and 120-B IPC is made out or not at pre-trial stage. The respondents are beneficiary of the grant of cash credit limit when their father was the President of the Bank. The power under Section 482 of the Code of Criminal Procedure, 1973 cannot be exercised where the allegations are required to be proved in court of law. The manner in which loan was advanced without any proper documents and the fact that the respondents are beneficiary of benevolence of their father prima facie disclose an offence under Sections 420 and 120-B IPC. It may be stated that other officials of the Bank have been charge-sheeted for an offence under Sections 13(1)(d) and 13(2) of the Act. The charge under Section 420 IPC is not an isolated offence but it has to be read along with the offences under the Act to which the respondents may be liable with the aid of Section 120-B IPC.
6. Consequently, we find that the order [Yogendra Singh Jadon v. State of M.P., CRR No. 260 of 2014, order dated 2-5-2016 (MP)] of the High Court quashing the charges against the respondents is not sustainable in law and the same is set aside. The appeal is allowed. It shall be open to the respondents to take such other action as may be available to them in accordance with law."5
(2020) 12 SCC 588 41 The Apex Court sets aside the order of the High Court which had quashed the charge sheet so filed in an offence involving Sections 420 and 120-B of the IPC. The Apex Court holds that if there is prima facie material, this Court would not interfere under Section 482 of the CrPC. Again the Apex Court in the case of RAJEEV KOURAV v. BAISAHAB6 has held as follows:
"8. It is no more res integra that exercise of power under Section 482 CrPC to quash a criminal proceeding is only when an allegation made in the FIR or the charge-sheet constitutes the ingredients of the offence/offences alleged. Interference by the High Court under Section 482 CrPC is to prevent the abuse of process of any court or otherwise to secure the ends of justice. It is settled law that the evidence produced by the accused in his defence cannot be looked into by the court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 CrPC for quashing criminal proceedings. It is clear from the law laid down by this Court that if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding.
... ... ...
10. We do not agree with the submissions made on behalf of Respondents 1 to 3. The conclusion of the High Court to quash the criminal proceedings is on the basis of its assessment of the statements recorded under Section 161 CrPC. Statements of witnesses recorded under Section 161 6 (2020) 3 SCC 317 42 CrPC being wholly inadmissible in evidence cannot be taken into consideration by the Court, while adjudicating a petition filed under Section 482 CrPC [Rajendra Singh v. State of U.P., (2007) 7 SCC 378: (2007) 3 SCC (Cri) 375] .
11. Moreover, the High Court was aware that one of the witnesses mentioned that the deceased informed him about the harassment meted out by Respondents 1 to 3 which she was not able to bear and hence wanted to commit suicide. The High Court committed an error in quashing criminal proceedings by assessing the statements under Section 161 CrPC."
(Emphasis supplied) The Apex Court holds that the statements relied on by the accused in his defence cannot be looked into in the event they would require evidence and the facts therein are seriously disputed. These are few of the judgments which are rendered by the Apex Court which direct non-interference. The Apex Court, has further, in plethora of judgments has followed the very principle. Referring to them would only result in the bulk of the present order, as they are all settled principles of law. Interference by this Court under Section 482 of the CrPC cannot be a blanket sweeping exercise. It has to be on a case to case basis.
12. In the light of the judgments rendered by the Apex Court, the considered view of this Court is that, the matter would not 43 require any interference at this stage, as it is shrouded with seriously disputed questions of fact. The only legal contention that merit consideration to be answered is, the order of reference by the learned Magistrate to the jurisdictional Police Station for investigation, as the contention is that it bears no application of mind and is contrary to the judgment of the Apex Court in the case of PRIYANKA SRIVASTAVA v. STATE OF U.P. (supra). Both these submissions do not hold water, as the order of reference by the learned Magistrate under Section 156(3) does bear application of mind, though it is wrongly worded as order of taking cognizance.
The order reads as follows:
"ORDER OF TAKING COGNIZANCE This is a private complaint filed by the complainant against the accused persons u/s 200 of CrPC praying to refer the matter for investigation to SHO of Cubbon Park Police Station.
2. Perused the case papers available on record along with the affidavit submitted by the complainant. On perusal of the affidavit and documents it is evident that the complainant has approached the SHO, Cubbon Park Police Station and DCP, Central Zone, Cubbon Park, Bangalore to take action against the accused persons but they have not taken any action.
3. On perusal of the offences made out in the complaint it can be seen that the alleged offences are cognizable offences and cheating and forgery are involved.44
As such, in order to find out the truth it is just and necessary to refer the matter to SHO, Cubbon Park Police Station for investigation and submit the report. Accordingly, by invoking provisions of Section 156(3) CrPC the matter is hereby referred to SHO, Cubbon Park Police Station for investigation and submit report.
Await report. Call on 20-08-2019."
The aforementioned order cannot be dubbed as one that suffer from non-application of mind. For reference to investigation what is recorded by the concerned Court on 22-07-2019, in the considered view of the Court, would suffice.
13. The other submission with regard to non-compliance with the judgment of the Apex Court in the case of PRIYANKA SRIVASTAVA (supra) would again tumble down, as the complaint clearly narrated the efforts that the complainant has made while seeking to register the complaint before the jurisdictional Police and also to the higher authorities as is necessary under Section 154(1) and 154(3) of the CrPC.
14. The other ground is with regard to delay in registering the private complaint. The complaint narrates the reason for such delay 45 and it is not the law that delay in all cases would vitiate the proceedings. It is only unexplained delay that would vitiate the proceedings. The complainant narrates as to when the complainant comes to know of the act of transfer of shares standing in his name and that fact becomes a triggering point for registration of the complaint, initially before the jurisdictional police and later a private complaint before the learned Magistrate. All these factors would require evidence for the petitioners to come out clean. The case does not come within the postulates laid down by the Apex Court in the case of STATE OF HARYANA v. BHAJAN LAL - 1992 Supp (1) SCC 335 as followed in NEEHARIKA INFRASTRUCTURE PRIVATE LIMITED v. STATE OF MAHARASHTRA7 wherein the Apex Court has held as follows:
"Conclusions:
80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr. P.C. and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr. 7
2021 SCC OnLine SC 315 46 P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/ complaint/FIR in exercise of powers under Section 482 Cr. P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;47
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-
interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported.
Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr. P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) 48 and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr. P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr. P.C. and/or under Article 226 of the Constitution of India.
However, an interim order of stay of
investigation during the pendency of the
quashing petition can be passed with
circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr. P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/charge sheet is filed under Section 173 Cr. P.C., while dismissing/disposing of the quashing petition under Section 482 Cr. P.C. and/or under Article 226 of the Constitution of India.
49xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr. P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunder-stood and/or misapplied."
15. Insofar as Criminal Petition preferred by the complainant in Criminal Petition No.10125 of 2021 is concerned, the same need not be considered in the light of non-entertainment of petitions preferred by the accused. Therefore, the same would also merit rejection.
16. Therefore, in the light of the facts obtaining in the cases at hand and the judgments rendered by the Apex Court noticed 50 supra, I do not find any warrant to interfere with the impugned proceedings and accordingly all the petitions are dismissed.
Consequently, pending applications if any, also stand disposed.
It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of the petitioners under Section 482 of the Cr.P.C. and the same would not bind or influence the pending proceedings against any other accused including the petitioners.
Sd/-
JUDGE Bkp CT:MJ