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The second respondent herein lodged the above referred first information report on 20.9.2009 against the applicant herein alleging commission of the offences punishable under sections 454, 457, 380 and 114 of the Indian Penal Code. The gist of the allegations made in the first information report are to the effect that the father of the first informant had started a partnership company in the name and style of Arsh Casting Corporation in plot No.244/5, situated in Waghodia GIDC, Vadodara wherein aluminium draw tubes were being produced and that the first informant, his elder brother Pankaj and his cousin brother Hitesh were partners therein. That one other firm namely, Apurva Aluminium Corporation was running in the same compound in Sheds No.244/2/3/4 respectively. Because of internal disputes, the said Arsh Casting Corporation was also closed and that the said company has not taken any kind of loan from any bank. According to the first informant, as the company was closed since 2007 the partners of the said Arsh Casting Corporation decided to sell the furniture and machinery of the firm and a purchaser having approached them, about fifteen days prior thereto, the first informant along with his cousin and Amitbhai Pravinchandra Shah and Sureshbhai Nagindas Shah visited the premises of the company and found that the locks secured on the doors of the company were opened and machineries as mentioned in detail in the first information report were found to be missing. It is further the case of the first informant that as the machineries and other equipment from their company were missing and the equipment and machineries of Apurva Aluminium were also not there, as there was a watchman at the gate of the company they inquired from him whereupon they were informed that he was deputed by the Bank of Baroda. They, therefore, went to the Bank of Baroda, Raopura Branch and upon inquiry came to know that Apurva Aluminium Corporation had obtained a loan from Bank of Baroda to the tune of Rs.4.5 crores and failed to repay the same and therefore, the assets of Apurva Aluminium Corporation had been auctioned. Thereafter upon further inquiry, the first informant learnt that a new company had been set up at Umergaon which was manufacturing goods similar to those manufactured by their company and he visited the new company Anurita Enterprises Private Limited and made inquiry posing as a customer and found that the machineries of his company were lying there without being fitted. The first informant has accordingly alleged that the responsible officers of the company of the applicant at the time of removing the assets of Apurva Aluminium Corporation which they had purchased in public auction have broken the locks of Arsh Casting Corporation and entered their company and stolen the equipment and machineries enumerated therein and thereby, committed the offences punishable under sections 454, 457, 380 and 114 of the Indian Penal Code.

Mr. P. M. Thakkar, Senior Advocate, learned counsel for the applicant invited attention to the allegations made in the first information report to submit that it is clear that the entrance of the premises of Apurva Aluminium Corporation and Arsh Casting Corporation is one and the same. Attention was also invited to the partnership deeds of Apurva Aluminium Corporation and Arsh Casting Corporation, to demonstrate that it is abundantly clear that the partners of the two firms are inter-connected and are related to each other. It was submitted that the first informant, his brother Pankaj and his cousin brother Hitesh are partners of Arsh Casting Corporation, whereas the brother of the first informant Pankaj and Hitesh are also partners of Apurva Aluminium Corporation. It was submitted that under the circumstances, it is difficult to believe that the first informant was not aware of the auctioning of the properties of Apurva Aluminium Corporation as alleged in the first information report. It was urged that only the machinery which was shown to the inspecting engineers of the company and which was offered to be purchased and actually purchased on "As is where is and whatever there is" basis, was removed, loaded and transported by the applicant under the supervision of the watchman and the officers of the creditor bank. That the removal and transportation continued for twenty-eight days, but neither the first informant nor the watchman of the bank nor the officer of the creditor bank said anything or object to the removal of the assets by the applicant. It was submitted that despite the aforesaid factual position, the first informant by making false assertions, has lodged the above referred first information report.

It is in the aforesaid factual background, that the allegations made in the first information report are required to be examined. It is the case of the first informant that there was a partnership firm of his father named, Arsh Casting Corporation, at GIDC Sector 244/5 wherein, aluminium draw tubes were being produced and that he was a partner along with his elder brother and his cousin Hitesh. That in the adjoining Sheds No.244/2, 244/3 and 244/4, Apurva Aluminium Corporation was situated and that both the companies were situated in the same compound. It is the case of the first informant that their company Arsh Casting Corporation came to be closed down in the year 2007 on account of differences between the brothers and in respect of the said company, no loan had been taken from the bank. That since the company was closed down in the year 2007, it was subsequently decided to sell the machinery and furniture and upon a purchaser approaching them, about 15 days prior to lodging of the first information report, he had gone to the company along with his cousin whereupon, he found that the locks of the company were broken open and that the machinery and furniture enumerated in the first information report were missing. That since the machinery and other articles of Apurva Aluminium Corporation were also not found there, they had inquired from the watchman at the gate who informed them that he had been deployed there by the Bank of Baroda, where after they had gone to Bank of Baroda to inquire about the same and found that Apurva Aluminium Corporation had taken loan of Rs.4.5 crores from the Bank of Baroda and as they were not repaying the same, the bank had auctioned its properties. That thereafter, they had inquired and had come to know that there was a company at Umbergaon which was manufacturing goods akin to the goods which they were manufacturing, hence, they had gone to Umbergaon posing to be customers at the new company, that is, Anurita Enterprises Pvt. Ltd. and that the aforesaid machineries were lying there without being fitted and accordingly, it is alleged that at the time when the persons of Anurita Enterprises were taking the machineries which they had kept in the auction of Apurva Aluminium Corporation, they had also broken open the locks of the premises of their company and had taken away all their goods and stolen away their machineries.

On a bare reading of the first information report, it is apparent that the first informant is not aware of the exact date of the alleged offence. According to him, the premises of Arsh Casting Corporation were closed and that it was only when they wanted to sell the machinery and furniture of the said company that they had visited the premises of the said company and found that the machinery and furniture are missing. On a reading of the entire first information report, there is not even a whisper that there is any relationship between the partners of Apurva Aluminium Corporation and Arsh Casting Corporation. From the documents annexed along with the application, which is in the nature of the documents from the Registrar of Firms, it is apparent that the brother and cousin of the first informant are partners in both the above-referred companies. Under the circumstances, it is not possible to believe that the first informant was not aware of the fact that the machineries and furniture of Apurva Aluminium Corporation had been auctioned. Moreover, a perusal of the document at page 61 of the compilation shows that the plot No.244/5 stands in the name of Apurva Aluminium Corporation which is the plot on which it is alleged that Arsh Casting Corporation is situated. Thus, it appears that the facts stated in the first information report that Arsh Casting Corporation is situated at plot No.244/5 is incorrect and that the said plot also belongs to Apurva Aluminium Corporation. The learned counsel for the applicant is justified in submitting that the entire basis of the first information report falls and is without any basis inasmuch as Arsh Casting Corporation is not situated on plot No.244/5 and that the said premises also belongs to Apurva Aluminium Corporation. The document at page 60 of the compilation indicates that Arsh Casting Corporation is situated at plots No.244/6 and 244/7 and not at plot No.244/5, as stated in the first information report.