IN THE HIGH COURT OF JHARKHAND AT RANCHI. ----- W. P. (Cr.) No. 133 of 2015 ---- 1. Santosh Kumar Bhuwania 2. Om Prakash Bhuwania 3. Shakuntala Bhuwania 4. M/s Anirox Pigments Limited . . . Petitioners. Versus 1. State of Jharkhand 2. Krishna Kumar Dokania @ Kanhaiya. . Respondents. ----- CORAM : HON'BLE MR. JUSTICE PRASHANT KUMAR ----- For the Petitioners : M/s. R.S.Mazumdar,Sr.Advocate and A.K.Pathak For the State : Mr. J.Rahman, JC to GP-III For the Respondent : Mr. Sachin Kumar Reserved on 17.09.2015 Delivered on 07 /12 /2015 ----- Prashant Kumar,J.
This writ application has been filed for quashing the First Information Report of Govindpur P.S.case no. 112 of 2015, corresponding to G. R. no. 1317/2015 registered under sections 420, 406 and 120(B) of the Indian Penal Code.
2. It appears that the complainant/respondent no.2 filed a complaint in the court of Judicial Magistrate, Dhanbad vide C.P. Case no. 336/2015. The said complaint case sent to the Govindpur Police Station for institution of case and investigation under section 156(3) Cr. P.C. Accordingly, Govindpur P.S. case no. 112/2015 instituted. In the said complaint petition, respondent no.2 alleged that petitioners are directors and promoters of M/s Anirox Pigments Limited and they are related to the complainant ( respondent no.2). It is also stated that petitioner no.1 and 2 are also Directors of M/s Elementies Coke Private Limited. It is alleged that in the year 2004-05, petitioners invited respondent no.2 and his father namely,Late Ganesh Ram Dokania in their factory premises for some important discussions relating to their business. It is stated that in -2- response to the aforesaid invitation, respondent no.2 and his father went to the petitioners' residence at Amaghata, Govindpur, where petitioners requested respondent no.2 and his father for help in their business, as the petitioners' company namely, M/s Anirox Pigments Ltd. was facing serious financial crisis . It is also requested that if respondent no.2 and his father will invest money in the company, they will earn a handsome profit. It is further alleged that on the said persuasion, the respondent no.2 and his father invested crores of rupees in the petitioners' company as creditor, but the petitioners had shown the above investment as purchasers of shares. It is further stated that the petitioners appointed the respondent no.2 and his father as Directors of the Company. However, within five months respondent no.2 and his father resigned from the Directorship.
3. It is stated that later on respondent no.2 and his father found that the Company was facing serious financial crisis, therefore, they asked the accused/petitioners to return their money. It is stated that in lieu of said demand, the accused-petitioners had executed three promissory notes on 27.09.2005, 02.06.2008 and 03.06.2008 in favour of respondent no.2 and his father for total sum of Rs.22,25,00,000/-. It is stated that thereafter, accused/petitioners received crores of rupees on many occasions, but instead of paying a single penny to respondent no.2 and his father, they only gave assurances to pay back the dues within a short period.
4. It is further alleged that in the year 2013, accused /petitioners called respondent no.2 and told him that they have negotiated with IDBI Bank and the Kotak Mahindra Bank for one time settlement and for that purpose they need ₨. 50,00,000/- so that the same can be deposited with the IDBI Bank and Kotak Mahindra Bank. It is alleged that -3- accused/petitioners assured that if the said amount will be deposited in the I.D.B.I. Bank, there will be no impediment in selling the company namely, M/s Anirox Pigments Ltd. It is stated that on the aforesaid request and inducement, the complainant gave two demand drafts of Rs. 50,00,000/- to the petitioners and the said demand drafts deposited in the respective banks. It is stated that after deposit of said demand draft, the IDBI Bank instructed the petitioners to arrange a meeting with the creditors of M/s Anirox Pigments Ltd. for one time settlement. But the accused/petitioners fraudulently and intentionally ignored the aforesaid instruction of the bank, due to which complainant had suffered wrongful loss of Rs. 50,00,000/- in addition to what was earlier given to the accused/ petitioners. It is then alleged that thereafter, respondent no.2 requested the accused /petitioners to refund the amount, whereupon the accused petitioners had executed a "Memorandum of Understanding" and an "Authority Letter" in favour of respondent no.2 for search of proposed investor/buyers for M/s Anirox Pigments Ltd. It is alleged that while executing the aforesaid memorandum, the accused/petitioners assured respondent no.2 that after disposal of M/s Anirox Pigments Ltd. all the amount obtained from the respondent no.2 and his father will be returned along with 10% commission of total sale consideration. It is stated that on 04.04.2014 accused-petitioners executed a registered Power of Attorney in favour of complainant for finalization of investor/buyers for the aforesaid M/s Anirox Pigments Ltd. It is stated that on 09.01.2015, the complainant-respondent no.2 came to know from the newspaper notice published in Prabhat Khabar that the accused persons had revoked the Power of Attorney vide registered deed dated 05.01.2015 on false and frivolous ground. It is stated that thereafter, respondent no.2 along with his friend approached the accused for refund of their money. At -4- that time, accused -petitioners had threatened him to finish his life. It is stated that the accused/petitioners had acknowledged in writing that a sum of Rs. 46,00,00,000/- is payable to the respondent no.2. Accordingly, the present case has been filed.
5. Sri R.S.Mazumdar, learned senior counsel appearing for the petitioners, submits that even if the allegation narrated in the F.I.R. are taken to be true, then also no offence, under sections 420 and 406 of the Indian Penal Code, made out. It is submitted that this is a pure and simple case of money lending and for recovery of which a civil suit is maintainable and the petitioners cannot be held criminally liable for the same. Sri Mazumdar further submits that from the various documents attached with the complaint petition, it is clear that respondent no.2 and his father had invested in the Company as a share holder. They were appointed as Directors of the Company. But later on, they resigned due to some personal reason. Thus, claim of respondent no.2 that they gave money as creditors to the petitioners is not correct. It is further submitted that from Annexure-4 to the writ application, it is clear that IDBI Bank had removed the 'Lien' mark standing in the name of father of respondent no.2 with a view to facilitate him to withdraw Rs.50,00,000/- deposited by them. Under the said circumstance, the allegation of respondent no.2 that he has further suffered a loss ofRs. 50,00,000/- is incorrect. It is further submitted that in the Power of Attorney, there is a stipulation that respondent no.2 has no power to transfer the property and the Power of Attorney shall be revokable, if the respondent no.2 wishes so. It is submitted that complainant with a view to mislead the court had quoted only half portion of the above Clause of the Power of Attorney and stated that the said Power Attorney has been revoked without the consent of respondent no.2. It is submitted that in fact, respondent no.2 was trying to -5- sold the entire property of the company, therefore, as per Clause 5 of the Power of Attorney petitioners revoked the same. Thus, by doing so they have not cheated respondent no.2. It is submitted that from the facts and circumstances of this case, no offence under sections 420, 406 read with section 120(B) of the Indian Penal Code made out.
6. On the other hand, Mr. Sachin Kumar, appearing for the respondent no.2 submits that from the first instance, accused-petitioners had intention to cheat respondent no.2 and his father. It is submitted that with above intention they persuaded respondent no.2 and his father for investing crores of rupees in the petitioners' company. It is submitted that petitioners persuaded that after receiving the aforesaid money, they will pay the dues of the respondent no.2 and further pay 10% commission , but the petitioners had no such intention to sale the company, therefore, they had revoked the Power of Attorney. Accordingly, Sri Kumar submits that offence under sections 420/406 of the Indian Penal Code made out. Sri Kumar further submits that it is well settled that if from the same sets of facts both the criminal liability as well as civil liability made out, then both types of cases maintainable. He further submits that from the allegation made in the FIR, criminal case is also made out, therefore, the present writ application is liable to be dismissed.
7. Having heard the submissions, I have gone through the records of the case.
8. From perusal of documents attached with the complaint petition, which was brought on record through supplementary affidavit, I find that in fact respondent no.2 had shown its interest for making investment in the company namely, M/s Anirox Pigments Ltd. for its rehabilitation. One of such letter is attached with the supplementary affidavit. It further appears from Annexure-2 to the writ application that respondent no.2 was -6- appointed as one of the Director of M/s Elements Coke Private Limited and from the that post he resigned due to some personal reason. Annexure-4 to the writ application shows that 50 lakhs rupees deposited by M/s Ganesh Ram Dokania was released by the I.D.B.I. Bank by removing the 'Lien' mark of its current account. It further appears from the promissory notes, the photocopy of the same annexed with the supplementary affidavit, that petitioner acknowledged that they have taken loan from M/s Ganesh Ram Dokania and Krishna Kumar Dokania on different dates and they have promised to return the same with 14.50% interest. Under the aforesaid circumstance, I find that petitioners have not taken any amount from respondent no.2 and/or and his father by making any misrepresentation of fact. Even in the Memorandum of Understanding , which has been annexed with the supplementary affidavit, it is clearly mentioned that petitioners had informed respondent no.2 regarding the condition of the company and had requested respondent no.2 to search a suitable investor for reviving the said company. Thus, it prima facfie appears that petitioner had not concealed any fact from respondent no.2 and/or his father. This fact is also mentioned in the Power of Attorney. It is worth mentioning that at Clause 5 of the Power of Attorney, reads as follows :- "The party of the second part shall have no power to transfer the property and the Power of Attorney shall be revocable at any time if the party of the Second Party wishes so." 9. Thus, from perusal of aforesaid stipulation, it is clear that if second party of the Power of Attorney ( respondent no.2) will take any step for transfer of property then in that event, the power of attorney shall be revocable. From perusal of Annexure-3, it appears that respondent no.2 had negotiated with different persons, which goes against the interest of the company, therefore, petitioners have cancelled Power of Attorney. -7- Thus, prima facie it appears that Power of Attorney has been revoked as per terms and conditions mentioned in Clause 5 of the power of attorney.
10. In view of the aforesaid facts and circumstances, narrated herein above, I find that there is no ingredient of cheating and/or criminal breach of trust available in the F.I.R. I also do not find any ingredient of criminal conspiracy. Thus, I conclude that no offence under sections 420/406/120(B) of the Indian Penal Code made.
11. In view of the discussions made above, I allow this writ application and quash the First Information Report of Govindpur P.S. case no. 112 of 2015, corresponding to G. R. no. 1317/2015 pending in the court of Judicial Magistrate,Dhanbad. Sd/- ( Prashant Kumar, J.
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