Delhi District Court
Complainants vs . State, 2007 (2) Jcc 1330 Has Held That ... on 9 February, 2012
1
IN THE COURT OF MS. NAVITA KUMARI BAGHA : MM:NEW DELHI
CC No. 83/1/11
M/s. Brahma Opportunities A Ltd. & Ors.
.......Complainants
Versus
Amit Katyal & Ors.
............ Accused
Complaint U/Sec.200 Cr.P.C. against accused persons for offences
committed U/Sec.406/409/420/463/467/471/34/120B IPC
ORDER:
1. Vide this separate order, I shall dispose of the application dated 09.08.2011 of the complainant filed U/Sec.156(3) Cr.P.C. for directing the police to register FIR against the accused persons.
2. The complaint U/Sec.200 Cr.P.C against accused persons for offences U/Sec.406/409/420/463/467/471/34/120B IPC was filed by complainants against the accused persons on 09.08.2011 before the Court of Ld. ACMM01. This case was transferred to this Court by Ld. ACMM01 vide 2 order dated 16.12.2011. The brief facts of the case as narrated in the complaint are as follows: Complainant no.1 is a company incorporated and registered under the Laws of Mauritius and the complainant no.2 and 3 are companies incorporated under the Laws of Cyprus and these companies are primarily engaged in management of funds which are invested inter alia in development of townships in India. In October, 2009, the accused No.1 approached Mr. Gulbir Singh Madan, Director of complainant No.1 and represented to him that he was running a company by the name of M/s. Krrish Buildtech Pvt. Ltd. of which the entire 100% equity was owned by him and his wife i.e. accused no.1 and accused no.2 who were Directors of the said company. He further represented that he and his company M/s. Krrish Buildtech Pvt. Ltd. was owning lands in Sectors 60,61,62,63 and 65 of Gurgaon, Haryana which could be utilized for developing an integrated plotted colony township project. He showed various copies of saledeeds, power of attorneys, documents, maps, sketches representing that he was having valid and marketable title of the lands free from encumbrance. Believing the representations of accused no.1, the complainant companies agreed to invest in the project for which lands ware allegedly claimed to have been owned by accused no.1 and his company for development of township. He lured the complainant companies for making investment by making false representations that the said lands would be converted into residential and commercial plots for commercial gain resulting into financial benefit to the company. He also induced complainants to invest on false assurance that 3 additional land wouldl be acquired for this project. Accordingly, Gulbir Singh Madan became Director alongwith accused no.1 w.e.f. 29.12.2009 of M/s. Krrish Buildtech Pvt. Ltd. (now known as Brahma City Pvt. Ltd. w.e.f. 17.02.2011). Thereafter, an Investment Agreement was entered into between the complainant no.1 and the accused on 03.06.2010. In furtherance of allurement of the accused persons and the investment agreement, the complainants invested as well as brought in by way of CCD's a total amount of around Rs.367 crores in the Brahma City Pvt. Ltd. It was agreed by the accused no.1 to allot 74% of the share holding (Class A equity shares) to the first complainant and 26% (Class B shares having voting rights on the reserved matters) to the accused no.1 and accused no.3. After entering into investment agreement, the accused no.1 kept on assuring that the land allegedly owned by him would be given all clearance by the Government for development of township and he would be also purchasing more land in the vicinity which would yield more profits. The accused no.1 in criminal conspiracy with accused no. 1, 11 and 12 siphoned off huge amount of money of the Brahma City Pvt. Ltd. (approximately Rs.49 crores), supposed to be invested in the project and utilized for buying additional land and instead diverted the said money for the personal gain and personal benefit of the accused persons. The accused persons have also undertaken to sell the project land without any authority, despite there being specific bar created vide Board Resolution dated 16.08.2010 in presence of accused no.1 and misappropriated the money so received for their own benefit. Accused no.1 in conspiracy with other accused persons entered into large scale 4 transactions of project land, purchased out of the money funded by the complainants. The complainants have also come to know that in the investment agreement false representations were made by the accused no.1 and 2 that M/s. Krrish Buildtech Pvt. Ltd. had valid and marketable title to land parcels whereas they were not having any such right, title or interest as represented by them. The accused no.1 in conspiracy with other accused persons had got general power of attorneys executed in his personal name from the farmers in respect of lands purchased out of the money brought in as investment by the complainants, clearly showing that he is misappropriating the money for personal gain and benefit of the accused persons. The accused no.1 in conspiracy with accused no.2 to 4 and accused no.1, 11 to 13 siphoned off money given by the complainants for payment towards the land owners and diverted the same money to their personal gain. The money has been misappropriated by the accused persons by buying personal/private properties in and around Delhi thereby committing criminal breach of trust while acting as agent of the company. Accused no.1 in conspiracy with accused no.5 to 9 by forging various documents of the company has increased the share capital and has increased number of directors by forging minutes of Board as well as share certificates in conspiracy with other accused persons, reducing the share holding of the first complainant to minority and trying to illegally take control of the said company. The accused no.1 without any authorization and in disregard to the decision of the Board of the Brahma City Pvt. Ltd. surreptitiously entered into agreements with various individuals for sale of 5 plots in the licensed land purporting to be acting on behalf of the Brahma City Pvt. Ltd. The said unauthorized agreements were entered into by accused no.1 after the Board of Directors meeting on 16.08.2010 and 24.08.2010 knowing fully well that he had no authority to execute any such purported agreements to sell. The accused persons have committed various offences of breach of trust, cheating, forgery, etc. against the complainants by series of acts mentioned above and complainants had been induced to partwith huge sum of more than Rs.367 crores which is foreign direct investment. The intention of the accused persons was never to develop the project but to siphon off the funds received from the complainants for personal benefit. The accused persons have caused wrongful loss to the complainants and wrongful gain to themselves. The accused no.1 has not only committed act of cheating & breach of trust but in collusion with rest of the accused has also forged papers to justify a false claim and to illegally introduce coaccused as directors in the company and on account of their illegal act and such conduct, the complainants have suffered huge losses. The complainant lodged a complaint dated 01.06.2011 with SHO, P.S. Barakhamba Road for registration of FIR against accused but no action was taken by the police.
Therefore, the complainant filed the complaint alongwith the present application U/Sec.156(3) Cr.P.C. before the Court. 6
3. I have heard the arguments from the counsel for the complainant on this application filed U/Sec.156(3) Cr.P.C. and perused the record. The counsel for complainant has requested for directing the police to register FIR against the accused and to investigate the matter. It was submitted before the Ld. Predecessor Court that the complaint of the complainant was transferred from P.S. Barakhamba Road to Economic Offences Wing (EOW). When the action taken report was called from EOW, the I.O. submitted reoprts on a number of dates stating therein that the enquiry of the complaints of the parties was in progress. But the Hon'ble High Court of Delhi in Priya Gupta Vs. State, 2007 (2) JCC 1330 has held that the police has no right to refuse registration of a case on information being laid before it about the commission of cognizable offence and instead proceed with an inquiry and refuse registration as a result of the said inquiry. It is held in this case, "If it is left to be determined by the police to decide in which cases of disclosure of commission of cognizable offence it would first hold preliminary enquiry and then decide to register or not to register the case it would lead to delay in registration of the crime and the conduct of inquiry itself may entail a long period and there may be a challenge to the said enquiry which is not permissible by Law.
/ 7 / / Police officer is neither empowered nor could be allowed to assume the role of investigation before registration of FIR His role begins with registration of FIR Ends with presenting charge sheet/Challan before competent Court on alleged offence."
4. Thus neither the police could refuse to register FIR on flimsy ground based on the preliminary enquiry conducted by it nor refuse to do in name of conducting preliminary enquiry. It has been held by Hon'ble Supreme Court in Ramesh Kumari Vs. State (NCT of Delhi) and Ors., (2006) 2 SCC 677 that the provision of Sec.154 Cr.P.C. is mandatory and the officer concerned is dutybound to register the case on the basis of information disclosing cognizable offence and that the genuineness or otherwise of the information can only be considered after registration of the case. It is also held by Hon'ble High Court of Delhi in Radha Vs. State, 179 (2011) DLT 810, "Sec.154 Cr.P.C. - Cognizable Offence - FIR - Registration - Once any information disclosing commission of a cognizable offence is brought before the police officer then concerned officer is bound to register an FIR - Not the prerogative, free will or privilege of police officer to whimsically decide that in what case to register an FIR or 8 not."
5. In the present case the complainant has placed on record the copies of minutes of Board meeting held on 16.08.2010, representative MOUs allegedly fraudulently entered into by accused no.1 without any authorization from the Brahma City Pvt. Ltd., receipts issued by accused no.1, alleged forged and unauthorized sales receipts, alleged forged Form 32, Investment Agreement dated 03.06.2010 and other relevant material. Averments made in the complaint and the material placed on record, prima facie discloses a case of breach of trust, cheating, forgery, etc., which are cognizable offences. So, in view of the abovesaid caselaws and that the complaint of the complainant prima facie discloses cognizable offences, so application of complainant U/Sec.156(3) Cr.P.C. is allowed and EOW is directed to register FIR in the present case. Copy of this order be sent to EOW for compliance. Put up on 10.05.2012 for filing of status report.
(Announced in open Court on 09.02.2012) (Navita Kumari) MM(ND)/09.02.12 9 10 CC No. 83/1/11 09.02.2012 Present : Counsel for complainant.
Vide separate order the application of the complainant dated 09.08.11 filed U/Sec.156(3) Cr.P.C. is allowed and EOW is directed to register the FIR and to report on 10.05.2012. Copy of the order be sent to the EOW for compliance.
(Navita Kumari) MM(ND)/09.02.12