* 1 * W.P. 2408.2009 3.2.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2408 OF 2009 Prabodh Artha Sanchay Pvt.Ltd and anr. ...... Petitioner V/S. 1. M/s. Synthesis Equity Research Foundation Pvt. Ltd 2. The State of Maharashtra 3. The Senior Inspector of Police MRA Marg Police Station, Mumbai ...... Respondents * * * * * * Mr. Amit Desai, Senior Counsel with Mr. Rahul Karnik and Mr. Ashish Chandra Rao i/by. M and M. Legal Ventures, Advocate for the petitioner. Mr. K.G. Menon, Senior Counsel with Mr. J.L. Phoujdar, Advocate for respondent no.1. Mr. Rajesh More, APP for State-respondents no.2 and 3. Coram : Smt. R.P. SondurBaldota, J. 3 February, 2011. P.C. : . Rule, Rule made returnable forthwith. 1. This petition seeks quashing of the complaint filed by respondent * 2 * W.P. 2408.2009 3.2.2011 no.1. for the offences punishable under Sections 120B, 471 read with Sections 468, 420, 193, 403 read with Section 109 and 34 Indian Penal Code. The complaint in question is the fifth proceeding between the parties relating to a transaction involving Rs.4,25,00,000/-. According to respondent no.1, this amount was the loan advanced to petitioner no.1 with petitioners no.2 and 3 acting as guarantors for repayment of the loan in installments. The petitioners on the other hand, contend that the amount was given by respondent no.1 from time to time, as and when required, for procurement of agricultural land admeasuring 30.62 acres at Gat No. 633, Village-Bhukum, Taluka- Mulshi, District-Pune. The petitioners also contend that part of that amount was to be retained by the petitioners as their consolidation and facilitation charges. According to them, after taking accounts, infact, an amount of Rs.4,71,000/- is due from respondent no.1 to them. 2. The first proceeding filed in respect of the dispute was Suit No. 2210 of 2007 filed by the petitioners on 22nd June, 2007 in the Court of Civil Judge Senior Division, Pune for recovery of the amount. The second proceeding was the complaint filed by the petitioners in the month of July, 2007 in the Court of Judicial Magistrate First Class at Pune, against respondent no.1 in which the learned Magistrate has directed * 3 * W.P. 2408.2009 3.2.2011 inquiry under Section 156(3) Criminal Procedure Code. The third proceeding is Company Petition NO. 791 of 2007 filed on 17th August, 2007 by respondent no.1 for winding up of petitioner no.1 on the ground that it is not able to pay the debts due to respondent no.1. The petition was dismissed by this Court by its order dated 11th September, 2008, rejecting the theory of loan by respondent no.1 to the petitioners and accepting the contention of the petitioners that the amount paid was towards purchase of agricultural land. The appeal against that order is also dismissed. The fourth proceeding is Summary Suit No. 669 of 2008 filed by respondent no.1 in this Court for recovery of Rs.4,25,00,000/- from the petitioners wherein the petitioners have been granted unconditional leave to defend that Suit. The present complaint is the fifth proceeding. 3. Mr. Desai, the learned Senior Counsel, for the petitioners submits that the complaint as filed is not maintainable in view of the deicison of the Full Bench of this Court in the case of Panchabhai Popatbhai Butani & Ors. V/s. State of Maharashtra reported in 2010 (1) Mh. L.J. page 421 . He points out that respondent no.1 has filed private complaint in respect of cognizable offences before the Court of learned Metropolitan Magistrate without first approaching the concerned police station. The Full Bench of * 4 * W.P. 2408.2009 3.2.2011 our High Court has held that normally a person should invoke the provisions of Section 154 of the Code before he takes recourse to the power of the Magistrate competent to take cognizance under Section 190 of the Code alongwith Section 156(3) Criminal Procedure Code. At least an intimation to the police of commission of cognizable offence under Section 154(1) Criminal Procedure Code would be a condition precedent for invocation of the powers of the Magistrate under Section 156(3) of the Code. In the instant case, respondent no.1 not having taken any such step could not have file the complaint directly in the Court. Mr. Menon, the learned Senior Counsel, appearing for respondent no.1, submits per contra that, the decision of the Full Bench does not place an absolute bar on a citizen directly approaching the Court with his complaint. Undoubtedly, the decision of the Full Bench carves out an exception to the bar, by observing that there could be cases where the police failed to “ act instantly and the facts of the case show that there is possibility of the evidence of commission of the offence being destroyed and/or tampered with and an applicant could approach the Magistrate under Section 156(3) of the Code directly by way of an exception as the legislature has vested wide discretion in the Magistrate.” Mr. Menon, however, has not been able to point out that the present case fits into * 5 * W.P. 2408.2009 3.2.2011 any of the exceptions carved out by the Full Bench. The complaint does not contain an averment that any attempt was made by respondent no.1 to file a complaint to the police and the police had failed to act instantly. There has also been no claim that respondent no.1 had to hasten to the Court because there was an apprehension of the evidence of commission of the offence being destroyed and/or tampered with. 4. The next question arising in the situation would be about the maintainability of such a complaint. The Full Bench framed following question in that regard and answered it thus: “Question No.(ii) Whether without filing a complaint within the meaning of Section 2(d) and praying only for an action under Section 156(3), a complaint before a Magistrate was maintainable? Answer A Petition under Section 156(3) cannot be strictly construed as a complaint in terms of Section 2(d) of the Code and absence of a specific or improperly worded prayer or lack of complete and definite details would not prove fatal to a petition under Section 156(3), in so far as it states facts constituting ingredients of a cognizable offence. Such petition would be maintainable before the Magistrate”. 5. It is, therefore now required to be seen whether the complaint as filed by respondent no.1 constitutes ingredients of a cognizable offence. The petitioners contend that the complaint does not disclose the * 6 * W.P. 2408.2009 3.2.2011 ingredients constituting the alleged offences punishable under Sections 471, 468, 420, 403, 193 read with Section 120B, 109 and 34 Indian Penal Code. It is further contended that even if all the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not, prima-facie, constitute any offence or make out any case against the petitioners. Respondent no.1 is a private limited company. It has filed the complaint through it’s director Praveen Napte alleging that the petitioner and the other accused persons have committed the offence “ of criminal conspiracy, user of forged documents for the purpose of cheating the Complainant to the tune of Rs.425/- crores taken on false representations with the dishonest intention of fabricating false evidence and criminal misappropriation. The accused have thus committed the offences punishable u/s 120-B, 471 r/w 468, 420, 193 and 403 all r/w Sec. 109 & 34 of The Indian Penal Code.” 6. The details of the allegations are that towards the end of 2005 or the beginning of 2006, the petitioners had approached him in Mumbai for financial assistance for expansion of their business as well as to pay off Bank loans. They needed loan of Rs.4,00,00,000/-. They had agreed to pay interest @12% per annum. Respondent no.1 gave the financial assistance in instalments, the first instalment being of Rs.25,00,000/-, * 7 * W.P. 2408.2009 3.2.2011 then by two more instalments. The total amount paid was Rs. 4,25,00,000/-. The complaint says that the loan was for a short period but does not specify the period. Then on 14th March 2007, respondent no. 1 alleges to have demanded repayment of the loan with interest of Rs. 38,98,192/-. When the demand did not elicit any response from the petitioners, it sent Advocates notice for winding up of petitioner no.1. It has already been seen that the Company Petition filed by respondent no.1 on the very allegations is dismissed while rejecting the claim of loan transaction. 7. The complaint next refers to the transaction of purchase of agricultural land through petitioners nos.2 and 3. Out of total land of 40 acres, Praveen Napte and his wife purchased 30 acres for the consideration of Rs.1,55,00,000/- and balance 10 acres was purchased by petitioner no.2. According to the complaint, the entire consideration was paid by Napte couple directly to the vendors who executed sale deeds in their favour. 8. Thereafter come the allegation of forging of documents and use of the forged documents. At paragraph 15, it is alleged petitioner no.3 filed affidavit-in-reply to the company petition to which copies of various “ forged documents” were annexed. Paragraph 18 lists 9 documents out of * 8 * W.P. 2408.2009 3.2.2011 which 7 are Visar Pavtis executed by the vendors in the years 2006 and 2007 in favour of petitioner no.2. The other two documents are a Release Deed and Declaration by vendor original accused no.6. The release deed is in respect of easementary rights of accused no.6 over the entire land, the consideration for which was of Rs.85,00,000/- paid by petitioner no.2. Respondent no.1 contends that the documents are false and fabricated because petitioner no.1 has take three different and inconsistent stands in respect of payment of Rs.85,00,000/- in different proceedings. The other argument in support of forgery is that the claim of easementary right was not disclosed by the original owners to Napte couple. 9. As per the complaint, respondent no.1 company is not concerned with the transaction of purchase of land. The land is purchased by Napte couple. Respondent no.1 is concerned only with the alleged transaction of loan. It is not the allegation in the complaint that respondent no.1 was fraudulently or dishonestly induced to give financial assistance to the petitioner. The nine documents described in the complaints have not induced respondent no.1 to give loan to the petitioners. All these documents are of the date subsequent to the alleged transaction of loan. Therefore, the complaint does not make out the case for offences punishable under Sections 403, 420 and 468 Indian Penal Code. As * 9 * W.P. 2408.2009 3.2.2011 regards the offence punishable under Section 193 Indian Penal Code of giving false evidence in judicial proceedings is concerned, the complaint as filed is not maintenable in view of Section 195 Cr.P.C.. Such a complaint is required to be made by the court before whom the false evidence was produced or by the officer authorised by that court. It is obvious from the complaint that the dispute between the parties is essentially of a civil nature to which colour of criminal proceedings is being given. Hence, the complaint is liable to be quashed qua the petitioners. 10. The rule is made absolute in terms of prayers (a) and (b). The proceedings in C.C. No.92 /Misc./2008 pending in the court of Additional Chief Metropolitan Magistrate, 38th Court, Ballard Pier, Mumbai are quashed as against the petitioners. [Smt. R.P. SondurBaldota, J]