1 crwp2465.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2465 OF 2009 Dilip Bachubhai Patel and another ...... Petitioners. V/s State of Maharashtra and Ors. ..... Respondents. Mr. A.H.H. Ponda i/b Pravina Kanani & Vidya Dongre for Petitioners. Mr. I.A. Bagaria with Mr. V.M. Thorat for Respondent No.4. Mrs. P.P. Bhosale, APP for the State. CORAM: V. M. KANADE, J. DATE : 20th July, 2010. P.C.:- 1. By this Petition filed under Article 227 of the Constitution of India and under section 482 of the Criminal Procedure Code, Petitioners are seeking appropriate writ order or direction for quashing the order dated 31st July, 2009 passed by the learned Additional Chief Metropolitan Magistrate, 38th Court, Ballard Pier, Mumbai in C.C. No. 28/SW/2009. 2 crwp2465.09 2. In the said complaint, it was alleged that the Respondent No.4 – original complainant was the Managing Director of M/s Genelec Limited which was registered at Kolkatta under the Companies Act and BIFR proceedings were initiated in 1990. However, the said Company could not be revived despite all efforts taken by number of persons and, finally, in the year 2005-2006, a proposal was given by the complainant and few others to the former Directors and, thereafter, they took over the operations of the said Company. According to the complainant, it was agreed that the new inductee Directors would take over and settle the pending dues, liabilities of the said Company with all concerned authorities by bringing in funds and 27% of the shareholding would be transferred in favour of the new Directors. It is the case of the complainant that Petitioner No.1 was known to him for several years since he was dealing in investments and was capable of assisting him in settling the issues of the said Company. According to the complainant, accused No.1 suggested that two additional persons should be appointed to assist him and he introduced accused Nos. 2 i.e. Petitioner No.2 herein and one Mangilal Jain - accused No.3. It was further stated in the complaint that the accused informed the complainant that a sum of Rs 70 lakhs was required to settle Bank claims and, therefore, on 03/04/2007, a Demand Draft No.500079 was handed over to the accused No.3 in his name. It was alleged that, thereafter, the accused stopped attending the office and were not available and, finally, accused No.3 was traced and 3 crwp2465.09 he informed that he was prevailed upon by other two accused to deposit the Demand Draft in his personal account. It was further alleged that the blank cheque book signed by him was in possession of other accused persons. It was then alleged that the accused No.3 issued a personal cheque for an amount of Rs 70 lakhs in favour of Company in July 2007. However, when the said cheque was deposited, it was dishonoured and was returned unpaid. Notice under section 138 of the Negotiable Instruments Act was issued against the accused No.3. According to the complainant, thereafter, internal inquiry was undertaken to scrutinize the books of accounts, statements and status of the settlement of issues with various parties. At that time, it was discovered that the accused No.1 had misused the funds to the tune of Rs 20 lakhs some time in March, 2007 by converting it for his personal benefit and gain. It was then alleged that though the said amount of Rs 20 lakhs was for payment to D.R.T.-II by two Demand Drafts bearing Nos. 518812 for Rs. 15 lakhs and 518813 for Rs. 5 lakhs respectively, the said amount was misused and it was converted by accused No.1 to purchase a flat in his personal name at public auction by D.R.T. It was also alleged that an amount of Rs 31 lakhs was siphoned off from the Bank Account wherein the funds belonging to Sr. Staff Superannuation Fund were misappropriated in a similar manner. A complaint vide FIR No.251 of 2008 dated 08/07/2008 was registered against the accused No.1 i.e Petitioner No.1 herein and a direction was given by him to 4 crwp2465.09 the Company’s Banker to render the said account inoperative and suspend the said account. It was further alleged that the accused had misappropriated, misused and converted the funds to the tune of Rs 1 crore. It was further alleged that the accused had conspired with each other and had committed an offence punishable under sections 403, 406, 409, 418, 420, 120(B) and 34 of the Indian Penal Code as also under section 380 of the Indian Penal Code. 3. The learned Magistrate, by his order dated 31/07/2009, was pleased to direct the police to investigate under section 156(3) of the Criminal Procedure Code. Initially, an order was passed on 16/09/2009 by the learned Judge (Coram: S.A. Bobde, J.) in which a direction was given that coercive steps should not be taken against the Petitioners. Thereafter, on 23/09/2009, the matter was adjourned to 01/10/2009 and the interim order was directed to continue till then. Leave to amend was also granted. Thereafter, on 07/10/2009 it was mentioned that the dispute between them was pending determination by the Full Bench and, therefore, the matter was adjourned to 23/11/2009. It was further observed that earlier order restraining coercive steps against the Petitioners was continued. Thereafter, respondents mentioned the matter and the matter appeared on Board on 02/07/2010 and a direction was given that the Petition should be placed on board on Tuesday, 6th July, 2010 on urgent admission board at 3 p.m. Thereafter, the matter did not appear on board on 06/07/2010 and, therefore, the 5 crwp2465.09 matter was kept on 07/07/2010. The matter was, thereafter, adjourned to 12/07/2010. Thereafter again on 13/07/2010, a direction was given to place this Writ Petition alongwith other matters and it was adjourned to 20/07/2010. 4. It appears that on 19/07/2010 Petitioner No.1 was arrested. A grievance was made by the learned Counsel appearing on behalf of the Petitioners that though the interim order passed by this court that no coercive action should be taken against the petitioners was in force, Petitioner No.1 was arrested malafidely. He invited my attention to the order passed by brother S.A. Bobde, J. He submitted that since the order mentioned that the interim order should continue in the meanwhile, it means that the said order was still in force and, therefore, Police had committed breach of the interim order. He submitted that the learned Single Judge of this Court had an occasion to consider the meaning of the words “in the meanwhile” and the learned Judge had, in the said case, observed that the words “in the meanwhile” mean till the hearing and final disposal of the case. He relied upon the judgment of the learned Single Judge of this Court in Govinda Bhagoji Kamable & others vs. Sadu Bapu Kamable & others1. It is submitted that though the interim order was still in operation, the Investigating Officer has arrested the Petitioner No.1 herein. It is, therefore, submitted that the Petitioner No.1 be released on bail. 1 2004(6) Bom.C.R.552 6 crwp2465.09 5. In the present case, it is an admitted position that when the matter was on Board before brother S.A. Bobde, J., interim order was continued from time to time. However, thereafter, the matter appeared on board before this Court on number of dates. No application was made for continuation of the interim order. On 15/07/2010, both the learned Counsel jointly requested that the matter should be kept on 20/07/2010. At that time, the Counsel for the complainant specifically alleged that the interim order is not continued. The learned Counsel appearing on behalf of the Petitioners, however, stated that the interim order is still in operation and, thereafter, the matter was adjourned to 20/07/2010. 6. The fact remains that when the matter appeared before this Court, no request was made for continuation of the interim order. Therefore, it cannot be said that the order passed by brother S.A. Bobde, J. on 07/10/2009 continued indefinitely. There cannot be any dispute regarding the ratio of the judgment in Govinda Bhagoji Kamable (supra). However, the ratio of the said judgment will not apply to the facts of the present case. I must however mention here that the Investigating Officer ought to have taken clarification from this Court before arresting the Petitioner No.1. Since the Petitioner No.1 is now arrested, he is at liberty to file an application for bail which application, if filed, may be decided expeditiously by the competent court. 7 crwp2465.09 7. Mr Ponda, the learned Counsel appearing on behalf of Petitioners submitted that from the documents on which reliance is placed by the complainant, it could be established that the Petitioners are not signatories of the cheques as alleged in the complaint. It is submitted that, in fact, the complainant himself was the signatory of the said cheques of Rs 70 lakhs and Rs 20 lakhs. He filed a compilation of following documents viz. (i) copy of the cheque bearing No. 547298 dated 03/04/2007 drawn on Dena Bank for Rs 70,05,893/-, (ii) copy of the cheque bearing No.5472988 dated 02/03/2007 drawn on Dena Bank for Rs 20,01,824/-, (iii) copy of the Pay Order bearing No.518812 dated 02/03/2007 issued by Dena Bank for Rs 15,00,000/- in favour of Recovery Officer DRT/II, (iv) copy of the Pay Order bearing No.518813 dated 02/03/2007 for Rs 5,00,000/- issued by Dena Bank in favour of Recovery Officer DRT/II (v) copy of the offer/bid application dated 02/03/2007 signed and filed by the first informant as a Bidder and (vi) copy of the order passed by the learned Sessions Judge in Bail Application No. 395 of 2009 filed by the first informant in MECR No.9 of 2008 registered by Andheri Police Station. On the basis of these documents, it is alleged that the said cheques were signed by the complainant himself and, therefore, the allegations made by the complainant in the complainant were palpably false. 8. It is submitted that, in fact, a complaint was filed 8 crwp2465.09 against the complainant prior in point of time to his complaint for various offences under the IPC. It is submitted that the complainant had suppressed material facts from the court and, therefore, on that ground alone, the said complaint is liable to be quashed. He relied upon the judgments of the Apex Court in S.P. Chengalvaraya Naidu (dead) by L,Rs vs. Jagannath (dead) by L.Rs.1 and in A.V. Papayya Sastry and others vs. Govt. of A.P. and others2. The learned Counsel appearing on behalf of Petitioners invited my attention to the various paragraphs of the said judgments in support of his contentions. It is further submitted that a report has been filed by Police dated 13/10/2008 in which it is stated that dispute is of civil nature and there is no irregularity in the said transaction between complainant and the accused. It is then urged that the said complaint was filed malafidely and it is apparent from the documents which are on record. It is, therefore, urged that the said complaint is liable to be quashed on that ground. The learned Counsel appearing on behalf of the Petitioners relied upon the judgment in State of Haryana vs. Bhajan Lal3 and several other judgments on the same point. 9. Mr. Bagaria, the learned Counsel appearing on behalf of Respondent No.4, on the other hand, submitted that pursuant to the directions given by the Magistrate, FIR was registered by the Police and the investigation was going on 1 AIR 1994 SC 853 2 (2007) 4 SCC 221 3 1992 Supp (1) SCC 335 9 crwp2465.09 and, therefore, in view of various judgments of the Apex Court, this Court should be slow in quashing the FIR and stopping the investigation of the cognizable offence. It is submitted that so far as an amount of Rs 70 lakhs is concerned, the said amount was deposited by Mr. Jain in his own account and an amount of Rs 20 lakhs which was for payment to DRT was utilized by the Petitioner No.1 herein for purchasing the flat in his own name. He submitted that police have in their possession several documents to show the commission of the said offence. 10. After having heard the learned Counsel appearing for the parties at length, in my view, this is not a fit case for exercising inherent powers of this Court or jurisdiction of this Court under section 482 of Cr.P.C or under section 227 of the Constitution of India to quash the criminal complaint filed against the present Petitioners. Serious allegations have been made in the complaint of misappropriation and embezzlement. The complainant initially had filed the complaint before the police. However, since no action was taken by the police, he was constrained to file complaint before the learned Magistrate. There is no substance in the submissions made by the learned Counsel appearing on behalf of the Petitioners that the complainant had suppressed material facts and on that ground the complaint is liable to be dismissed. It is a well settled position in law that the criminal complaint is not supposed to be an encyclopedia of all facts and circumstances. It is supposed 10 crwp2465.09 to disclose a commission of cognizable offence and after the direction is given to the police to investigate the said offence, police, during investigation, may unearth the entire material on the basis of which a decision could be taken by them whether to proceed with the case or not to proceed with the case. In several judgments, the Apex court has cautioned the High Court in exercising its inherent powers for quashing the FIR or granting stay to the investigation of cognizable criminal complaint. Secondly, at this stage, the High Court is not expected to go into the correctness of the allegations which are made in the complaint or to appreciate the documents on record for the purpose of deciding whether on the facts mentioned in the complaint, accused are likely to be convicted or acquitted. 11. Similarly, in my view, there is no substance in the submission made by the learned Counsel appearing on behalf of the Petitioners that the prosecution has been launched with malafide intention. In my view, there is no material on record to come to the said conclusion at this stage. In the present case, allegations and counter allegations have been made by two sets of Directors of the Company which has filed an application for revival before the BIFR. At this stage, it would be difficult to come to the conclusion whether the complainant or Petitioners have instituted cases against each other with malafide intention. The investigation of the case, therefore, under such circumstances, ought not to be stayed. On the basis of 11 crwp2465.09 documents which are produced before me also, it is difficult to come to any definite conclusion. Number of judgments have been cited by the learned Counsel appearing on behalf of the Petitioners. In my view, law on this point is quite well settled and I do not deem it necessary to deal with each and every judgment which is relied upon by the learned Counsel appearing on behalf of the Petitioners. 12. Under these circumstances, in my view, this is not a fit case for interfering with the order passed by the learned Magistrate. Writ Petition is dismissed and disposed of accordingly. (V.M. KANADE, J.) 12 crwp2465.09