Orissa High Court
Shripal Kothari vs State Of Odisha .... Opp. Party on 31 October, 2023
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
ABLAPL No. 7033 of 2023
Shripal Kothari ....
Petitioner
Mr. H.S. Satapathy, Advocate
-versus-
State of Odisha .... Opp. Party
Mr. S.Patra, ASC
Mr. S.S. Das, Sr.Advocate
For the Informant
AND
ABLAPL No. 7625 of 2023
h Suresh Kothari .... Petitioner
Mr. Rakesh Kumar Mallick, Advocate
-versus-
of State of Odisha .... Opp. Party
Mr. S.Patra, AGA
Mr. S.S.Das, Sr.Advocate
For the Informant
CORAM:
JUSTICE CHITTARANJAN DASH
ORDER
Order No. 31.10.2023
06. 1. Since both the applications stem from the Jonk PS Case No.49 of 2022 corresponding to CT Case No.143 of 2022 pending in the court of learned SDJM, Nuapada are taken up together for convenience.
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2. Heard the learned counsels for the Petitioners, the Informant and the State.
3. By means of this application, the Petitioner seeks grant of anticipatory bail U/s.438 of CrPC in apprehension of arrest for his alleged involvement in the offences under Sections 420/406/409/467/471/120-B of IPC in connection with above referred Jonk PS Case No.49 of 2022 corresponding to CT Case No.143 of 2022 pending in the court of learned SDJM, Nuapada.
4. The background facts of the case are that the complainant Manju Surana filed one 1CC Case No.5 of 2021 before the Court of the learned SDJM, Nuapada which was referred to the police under Section 156(3) of CrPC for registration and accordingly the same was registered against Jonk PS Case No.49 of 2022. It is further alleged that in the year 2002, when the complainant along with her husband had come to her parents' house in Khariar Road to attend a family function, the accused persons, namely, Suresh Kothari along with his wife Kusum Kothari and Chartered Accountant Shripal Kothari, visited her parents' house at Khariar Road and could convince her and her husband to invest shared in Rajat Buildcon India Pvt. Ltd., Durg, Chhattisgarh. As such, the complainant paid them, a cash of Rs.19,900/- instantly and they purchased shares in the said company being influenced by them. On 10.12.2002, the complainant was allotted another 1990 shares in the said company.
5. On 30.03.2003, the complainant and Kusum Kothari retired from the post of the Directors of the company and at the same time, Petitioner Suresh Kothari and one Prakash Jayaswal of Kalkata Page 2 of 6 // 3 // were inducted as the Directors of the said company. In the year 2020 Rajat Surana downloaded the records from MCA and came to know that her mother is the shareholder of the company as per records in ROC, Bilaspur as he. Later he came to know that her mother is the shareholder of 2000 shares in Rajat Buildcon Pvt. Ltd. On 10.10.2007, the annual return of the company prepared by the Chartered Accountant Shripal Kothari i.e. the present Petitioner revealed that the 200 shares of the complainant has been illegally and fraudulently lessened to 100 shares and the accused persons have swallowed an amount of Rs.1,37,46,803/-. The rest 1000 shares of the complainant continued in her name till 2014 as per the Annual Return Report. Further, it was shown that out of the rest 1000 shares, 564 numbers of shares was shown in the name of the Petitioner Suresh Kothari and the rest 436 shares were shown in the name of the husband of the complainant Anjay Surana and in this manner the present Petitioners Shripal Kothari and Suresh Kothari illegally and fraudulently cheated the complainant for cash worth Rs.2,15,00,000/-.
6. It is submitted by the learned counsels that the Petitioner Shripal Kothari is a professional Chartered Accountant and he is no way connected in the business save and except to deal with the professional part required for the management of the business in the family. It is further submitted that as regards the question of fraud and manipulation raised in the matter as pending before the NCLAT is a matter of fact which would be resolved by a competent civil court and no manner of criminal liability can be attributed to the Petitioners.
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7. Mr. S. S. Das, learned Sr. counsel appearing on behalf of the Informant, inter alia, submitted that the Petitioners are the mastermind of the whole conspiracy. Petitioner Shripal being a having access to all offices and documents under statute being a professional chartered accountant actively participated in the commission of fraud in connivance with the Petitioner Suresh Kathari. He further submitted that the Petitioner Shripal Kothari being in the helm of affairs, in the guise of his professional activities, is managing the entire business and preparing the documents and is as such responsible in defrauding the Informant in connivance with Petitioner Suresh Kothari. It is also submitted by Mr. Das, that the act alleged is absolutely a criminal act since fraud has been perpetrated behind the back of the Informant by manipulating the documents which remained in the custody of Petitioner Suresh Kothari and even though he has shown to have resigned sine long are actively involved in the affair of the business along with Shripal Kothari having criminal intent. He also pointed out that the Petitioner Suresh Kothari though seem to have resigned is absolutely in the helm of affairs and is actively participating in connivance with the said Shripal, the other Petitioner being the custodian of the documents and both are responsible in hatching the conspiracy manipulating the documents suitable to them and detrimental to the interest of the Informant.
8. Having heard the submission of the learned counsel for the parties and perusal of the documents so also submissions made by the learned Additional Standing Counsel, there is material prima facie to deduce that the Petitioner along with Suresh Kothari have Page 4 of 6 // 5 // active participation in the affairs of the business. There is also material on record that apparently shows the shares held by the Informant got automatically reduced without their intervention in any manner as held in their names. Figures shown in the record originally held by the Informant that got reduced and held in the name of the father of the co-accused are matters of investigation and cannot be ignored taking a lame excuse calling it a dispute of civil nature. Admittedly, the part of dispute shown before the NCLAT has to be adjudicated by the said authority for alleged manipulation of share by crediting in favour of another reducing it from one of the shareholders without his intervention are act that involves criminal intent.
9. The submission of learned counsels for the Petitioner that the Petitioner Shripal Kothari is responsible for discharging the professional duty in the business firm of the Informant, are matters of investigation but there is abundant material to show that Shripal Kothari and Petitioner Suresh Kothari have active involvement in the whole conspiracy and fraud allegedly taken place in the firm right from showing the resignation of the directorship so also induction of others as directors, reduction of share without any inkling to other shareholders are matters which requires a thorough custodial investigation.
10. In view of the discussions as above this Court is not inclined to grant anticipatory bail to the Petitioners. However, if the Petitioners would be cooperative in all respect in the opinion of the investigating agency they may deal with custody of the Petitioners Page 5 of 6 // 6 // in accordance with law. Both the ABLAPLs stand disposed of accordingly.
(Chittaranjan Dash) Judge AKPradhan Signature Not Verified Digitally Signed Signed by: ANANTA KUMAR PRADHAN Designation: Sr. Steno Reason: Authentication Location: HIGH COURT OF ORISSA Date: 02-Nov-2023 18:44:30 Page 6 of 6