Soonee Piyush And Another vs State Of U.P.And Another
2022 Latest Caselaw 145 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 84
 

 
Case :- APPLICATION U/S 482 No. - 29510 of 2021
 
Applicant :- Soonee Piyush And Another
 
Opposite Party :- State Of U.P.And Another
 
Counsel for Applicant :- Kartikeya Saran,Varun Singh
 
Counsel for Opposite Party :- G.A.,Vinayak Mithal
 
Connected with
 
Case :- APPLICATION U/S 482 No. - 29467 of 2021
 
Applicant :- Dr. Mahipal Singh Sachdev And 3 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Rajrshi Gupta,Rizwan Ahamad,Sr. Advocate
 
Counsel for Opposite Party :- G.A.,Pavan Kishore,Vinayak Mithal
 

 
Hon'ble Ajit Singh,J.

1- Heard Mr. G.S. Chaturvedi, learned Senior Counsel, assisted by Mr. Kartikeya Saran, Mr. Dileep Kumar, learned Senior Counsel, assisted by Mr. Rajarshi Gupta, learned counsel appearing for the applicants, learned A.G.A. for the State of U.P./opposite party no. 1 and Mr. Vinayak Mithal, learned counsel appearing for opposite party no. 2 at length. Since both the applications are arise from the same impugned order, they are being heard together.

2- This application under Section 482 Cr.P.C. has been filed by the applicants to quash the summoning order dated 13.09.2021 and proceedings of Case No. 10471 of 2021 (Dr. Roop Vs. Sardar Mahipal Singh Sachdeva and others), under Sections 417, 468, 471, 120B IPC, Police Station Civil Lines, District Meerut pending in the court of Additional Chief Judicial Magistrate, Court No. 5, Meerut.

3- The brief facts of the case, which are required to be stated are that the complainant - Dr. Roop/opposite party no.2 has filed a complaint on 02.07.2021 against the applicants and eight others, namely, Ashish Mohapatra, Arvind Lal, Raj Kamal Agarwal, Sardar Mahipal Singh Sachdeva, Alka Sachdeva, Ritika Sachdeva Gupta, Shimant Bhushan Chaddha, Sarkari Piroj Shaw, Soni Piyush, Gaurav Sadh and Kapil Dev Kukreja alleging that he is a renowned Eye Specialist of Meerut District. The applicants and five other persons, namely, Ashish Mohapatra, Arvind Lal, Raj Kamal Agarwal, Alka Sachdeva, Ritika Sachdeva Gupta, Shimant Bhushan Chaddha, Sarkari Piroj Shaw and Soni Piyush are the Directors of M/s New Delhi Centre for Sight Ltd. (hereinafter referred as "NDCFS") located at First Floor, Flat No. 101, B Wing, Dhruv, CHSL, Gulmohar, Main Road, Juhu, Village Parle, Mumbai and co-accused Sardar Mahipal Singh Sachdeva is the Managing Director of the aforesaid company. Co-accused Gaurav Sadh and Kapil Dev Kukreja are the Secretary and Authorized Signatory respectively of the aforesaid company. All the accused are/were jointly looking after the daily affairs of the company, that's why all the accused are personally and jointly answerable for all the affairs of the company. The complainant and his wife, namely, Dr. Sangeeta are the shareholders of the accused's company and the complainant is also a member of the Board of the company. The complainant is running the Centre For Sight Eye Hospital Private Ltd. (hereinafter referred as CFSEHPL) at Meerut and the complainant and his wife Dr. Sangeeta are working as Eye Specialists in the Centre For Sight Eye Hospital Private Ltd. On 29.10.2020, the accused's company sent an email to the complainant which was received by the complainant when he was at his residence at Meerut. From perusal of the email, the complainant got the information about the documents of the proceedings filed by the accused before National Company Law Tribunal, Mumbai in CP(CAA) No. 1071 (MB) 2020 CA (CAA) No. 1031 (MB) under Sections 230, 232 of the Companies Act for merger of the company M/s New Delhi Centre for Sight Ltd. with different companies, namely, Gayatri City Eye Hospital Pvt. Ltd., C.F.S. Eye Hospital Pvt. Ltd., New Vishal Laser Centres (Hyderabad) Pvt. Ltd., New Vision Laser Centres (Rajkot) Ltd. and Shri Hightech Clinics Pvt. Ltd. The complainant further got the information from the documents received through the same email that the accused have filed affidavit and consent letter dated 25.06.2020 of the complainant and his wife Smt. Sangeeta before the National Company Law Tribunal. In the affidavit and consent letter, the accused have mentioned that the complainant and his wife Smt. Sangeeta are ready for merger of the aforesaid companies without any terms and conditions. The affidavit and consent letter of the complainant and his wife which has been filed by the accused before the National Company Law Tribunal does not bear the signatures of the complainant and his wife. The accused as per their pre-planned scheme and by doing criminal conspiracy, purchased the stamp papers in the name of the complainant and his wife with the objective of causing financial loss and they have made forged signatures of the complainant and his wife in the affidavit and consent letter dated 25.06.2020 and filed the forged affidavit and consent letter before the National Company Law Tribunal, Mumbai. The complainant and his wife Smt. Sangeeta are suffering from extreme mental agony on account of the alleged act of the accused. The complainant in this regard enquired from the accused about filing of the said forged affidavit and consent letter before the National Company Law Tribunal but the accused did not give any satisfactory reply, then the complainant on 30.03.2021 informed the National Company Law Tribunal, Mumbai through email. The complainant so as his wife got examined the signatures made by the accused on the affidavit and consent letter dated 25.06.2020 by M/s Anil Gupta Forensic Services, Noida, on which after examination, M/s Anil Gupta Forensic Services Noida has given examination report dated 22.04.2021. In the said examination report, it has been found that the signatures of the complainant and his wife were forged. The act of the accused is punishable under Sections 420, 467, 468, 471, 120B IPC.

4- The Additional Chief Judicial Magistrate after examining the complainant, namely, Dr. Roop and his wife, namely, Dr. Sangeeta on oath under Section 200 Cr.PC and 202 Cr.P.C. respectively summoned the applicants and other co-accused persons vide impugned order dated 13.09.2021 to face trial under Sections 417, 468, 471, 120B IPC which is the subject matter of challenge in this application.

5- Mr. G.S. Chaturvedi, learned Senior Counsel, assisted by Mr. Kartikeya Saran learned counsel appearing for the applicants assailing the impugned order dated 13.09.2021 submits that:-

(i) the NDCSF Company of the applicants is a Delhi based Company. The stamp papers in question were purchased from Delhi. As per the prosecution case, alleged forgery took place in Delhi and the said documents in question were filed in NCLT, Mumbai. Since no part of offence has been committed in district Meerut, therefore, the Court at Meerut has no jurisdiction to entertain the complaint in view of provisions of Section 177 Cr.P.C. The Court at Delhi or at Mumbai might have jurisdiction but not at Meerut. It is submitted that residence of the aggrieved persons does not confer jurisdiction on Courts trying a criminal offence.

(ii) general and vague allegations have been levelled in the complaint against 11 persons without attributing any specific role played by them in their capacity. From perusal of the complaint, it is also not clear as to who has forged the documents in question. Omnibus allegations have been levelled against the applicants by opposite party no. 2 which is not permissible in law, therefore, on such bald allegations, the Magistrate ought not to have summoned the applicants.

(iii) the alleged handwriting expert report dated 22.04.2021 of private analyst M/s Anil Gupta Services, Noida is not admissible at this stage as he has not been examined on oath under Section 202 Cr.P.C. It is pointed out that the expert is also a resident of an area outside the territorial jurisdiction of the Court below. The alleged expert report on which case of the complainant is based, has also not been filed along with the complaint.

(iv) none of the accused in this case is resident of Meerut district, but learned Magistrate has issued summon without meeting the mandatory requirement of Section 202 Cr.P.C. The provisions of Section 202 Cr.P.C. were amended vide Amendment Act, 2005, making it mandatory to postpone the issue of process where the accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned and it is obligatory upon the Magistrate to enquire into the case himself or to direct investigation to be made by a police officer or by such person as he thinks fit for the purpose of finding out whether or not, there was sufficient ground for proceeding against the accused before issuing summons, but said exercise has not been done in this case.

(v) except the bald allegation, there is no material evidence on record to establish the act of conspiracy between the accused persons. Much emphasis has been given by contending that the basic ingredients of conspiracy are lacking in this case.

(vi) sending letters or documents by email is not a deception, therefore, no offence of cheating is made out against the applicants. Lastly, it is submitted that considering the overall facts and circumstances of the case as well as legal submissions, no prima facie case is made out against the applicants.

6- Mr. Chaturvedi, learned Senior Counsel in support of his aforesaid submissions placed reliance on the following judgments:-

(a) R.P. Kapur Vs. State of Punjab, (1960) 3 SCR 388;

(b) State of Karnataka Vs. L. Muniswamy and others, (1977) 2 SCC 699;

(c) Pepsi Foods Ltd. and another Vs. Special Judicial Magistrate and others, (1998) 5 SCC 749;

(d) Sunil Bharti Mittal Vs. Central Bureau of Investigation, (2015) 4 SCC 609; and

e) Ravindranatha Bajpe Vs. Mangalore Special Economic Zone Ltd. and others Etc., 2021 SCC OnLine SC 806.

7- Mr. Dileep Kumar, learned Senior Counsel, who is also appearing for the applicants adopting the aforesaid submissions of Mr. G.S. Chaturvedi, advanced his argument by contending that:-

(i) the Company has not been arrayed as an accused, therefore, Directors of the Company cannot be prosecuted without impleading the Company as an accused. It is submitted that in view of statutory provisions, no vicarious liability can arise against the applicants.

(ii) the board meeting was held on 24.06.2020, on which all the Directors of CFSNPL including the complainant-opposite party no. 2 and his wife Dr. Sangeeta consented for merger. It submitted that complainant has sent a number of messages through email showing their consent for amalgamation/merger of the Company, but later on they started creating obstructions in successful completion of merger transaction and issued notice dated 20.09.2020 seeking to exercise put option.

(iii) the report of handwriting expert has also been filed from the side of applicants before National Company Law Tribunal, Mumbai. It is submitted that for the purpose of forensic analysis, specimen signatures were taken from such documents which were previously executed by the opposite party no.2 and Dr. Sangeeta and has not been disputed till date. IFO Forensic Standards and Research Private Limited in its reports concluded that the said signatures were authentic and there was no forgery.

(iv) the statement of Dr. Sangeeta under Section 202 Cr.P.C. was recorded on 18.08.2021, in which she has stated that the complainant is shareholder of the accused's Company and is also a Member of the Board of the Company, whereas the complainant had already been removed on 29.07.2021 from the post of Member of the Board of the Company by the majority of 98% shareholders.

(v) complainant did not file a copy of said email, alleged forged affidavit and consent letter dated 25.06.2020 along with the complaint. It is submitted that only alleged expert report dated 22.04.2021 was placed before the learned Magistrate.

(vi) vide order dated 12.10.2021 of the High Court of Delhi, arbitrator has been appointed to adjudicate upon the disputes arising out of or in connection with the Joint Venture Agreement dated 10.03.2011 read with the First Amendment dated 14.08.2012 and the said arbitration proceeding is going on. It is purely a civil dispute between the parties concerned, which has been given a colour of criminal case without attributing specific role to the applicants. In this case, complaint has been filed against the Directors as well as those who have no concern with the affairs of the Company. It is submitted that criminal proceeding against the applicants is nothing but malicious prosecution, which is abuse of the process of the Court.

8- Mr. Dileep Kumar, learned Senior Counsel has also placed reliance on the following judgments :-

(a) Sardool Singh and another, 1987 (Supp) SCC 146;

(b) Sharad Kumar Sanghi Vs. Sangita Rane, (2015) 12 SCC 781; and

(c) Mohit Srivastava Vs. State of Uttar Pradesh, decided on 01.12.2021 in application under Section 482 Cr.P.C. No. 19058 of 2021.

9- On the other hand, Mr. Vinayak Mithal, learned counsel appearing for opposite party no. 2 submits that:-

(i) the complainant and his wife Dr. Sangeeta did not give their consent for merger of CFSNPL with NDCFS. The accused persons in order to settle their score in collusion with each other prepared the forged affidavit and consent letter dated 25.06.2020 in question making forged signature of the complainant and his wife and filed the same behind their back before the National Company Law Tribunal, Mumbai, therefore, offence of cheating and forgery is made out against them.

(ii) the stamp papers were purchased in June, 2020 during lock-down period from Delhi whereas at that time complainant and Dr. Sangeeta were residing in Meerut and due to lock-down, they were not allowed to move outside Meerut, therefore, there was no question of giving such affidavit and consent letter. It is further submitted that in view of Section 139 C.P.C. and 297 Cr.P.C., such affidavit is not a valid document in the eyes of law.

(iii) since it is an inter-se dispute between the Directors, therefore, Company is not required to be impleaded as an accused/party in criminal proceeding.

(iv) the arbitration petition to appoint an arbitrator has been filed by the applicants after about six months of making complaint by the complainant. Much emphasis has been given by contending that arbitration proceeding is not a substitute for criminal proceeding when act is an offence, therefore, the criminal prosecution cannot be thwarted merely because arbitration proceeding is pending.

(v) referring to the contents of para 32 of the application, it is submitted that as per stand of the applicants, affidavit and consent letter for the complainant and Dr. Sangeeta were prepared and couriered by authorised representatives of CFSNPL to the complainant and Dr. Sangeeta in Meerut on 29.02.2020 and signed copies were received back by CFSNPL on 04.03.2020, therefore, in view of the Section 181 Cr.P.C., the Court at Meerut has jurisdiction to entertain the complaint.

(vi) the applicants have not come with clean hands and have suppressed the material facts.

(vii) lastly, it is submitted that the impugned summoning order has been passed after full application of mind because three Sections of the complaint have been dropped and Section 417 Cr.P.C. has been added in summoning order. At this stage, Magistrate is not required to go into the depth of the case. Prima facie case is made out against the applicants, therefore, instant application is liable to be dismissed.

10- Learned counsel appearing for complainant-opposite party no. 2 in support of his submissions placed reliance upon the following judgments:-

(a) Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and others, (1976) 3 SCC 736;

(b) Trisuns Chemical Industry Vs. Rajesh Agarwal and others, (1999) 8 SCC 686;

(c) M. Krishnan Vs. Vijay Singh and another, (2001) 8 SCC 645;

(d) Zandu Pharmaceutical Works Ltd. and others Vs. Mohd. Sharaful Haque and another, (2005) 1 SCC 122;

(e) Vijay Dhanuka and others Vs. Najima Mamtaj and others, (2014) 14 SCC 638;

(f) Abhijit Pawar Vs. Hemant Madhukar Nimbalkar and another, (2017) 3 SCC 528; and

(g) Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and others, Vs. State of Gujarat and another, (2017) 9 SCC 641.

11- Learned A.G.A. for the state of U.P. adopting the argument of Mr. Vinayak Mithal submits that from the allegations made in the complaint, cognizable offence is made out against the applicants, therefore, there is no illegality in the impugned order.

12- Having heard the learned counsel for the respective parties, I find that in the complaint, general allegations have been levelled against the applicants. No specific allegations and specific role have been attributed against the accused/applicants. In the impugned order also, learned Magistrate did not ascribe any specific incriminating role against the applicants in their individual capacity. In nutshell, it is case of the complainant that on 29.10.2020, the accused's company sent an email to the complainant from which he got an information about the forged affidavit and consent letter in question prepared and filed by the accused before National Company Law Tribunal, Mumbai for merger of the company M/s New Delhi Centre for Sight Ltd. with different companies. As per report dated 22.04.2021 of private handwriting expert, the signatures of the complainant and his wife on the affidavit and consent letter have been found forged. It is also submitted on behalf of the complainant that a copy of the said email, forged affidavit and consent letter dated 25.06.2020 as well as expert report dated 22.04.2021 have been brought on record before the learned Magistrate through list of the documents along with the complaint. On the other hand, said facts have been seriously disputed by Mr. Dileep Kumar, learned Senior counsel for the applicants by contending that neither affidavit nor consent letter in question have been filed along with the complaint. It is also admitted fact that private analyst, who has examined the signatures of the complainant and his wife on the documents in question and given report dated 22.04.2021 has also not been examined on oath under Section 202 Cr.P.C. before the Magistrate. From perusal of the statement dated 18.08.2021 under Section 202 Cr.P.C. of Dr. Sangeeta, I also find that she has made allegation that all the accused have filed affidavit and consent letter making forged signatures of her and complainant but she did not utter a single word about examination of said documents in question by the handwriting expert. The impugned order does not indicate that the learned Magistrate has perused the alleged forged affidavit and consent letter in question. As per the prosecution case, admittedly, the forgery has not been committed in the territorial jurisdiction of district Meerut, but the forged documents in question were sent to the complainant on his email. From perusal of the complaint, it is also not clear that who has sent email to the complainant on behalf of the company. It is also not disputed that arbitrator has been appointed in this case and the arbitration proceeding is pending.

13- In the present case in hand, none of the accused is resident of district Meerut. Section 202 Cr.P.C. was amended in the year 2005 by the Code of Criminal Procedure (Amendment) Act, 2005, with effect from 22.06.2006 with a vital purpose to ward off false complaint against such persons residing at far off places in order to save them from unnecessary harassment. The requirement of conducting enquiry or directing investigation in view of amended provisions provided under Section 202 Cr.P.C., which is for extremely limited purpose is not an empty formality but for the purpose of deciding whether or not there is sufficient ground for proceeding. In a case where accused is residing at a place beyond the area in which Magistrate exercises his jurisdiction, the said amended provision casts an obligation on the Magistrate to conduct an enquiry or investigation before issuing the process in order to satisfy himself, so that false complaints are filtered. Merely making observation regarding the sufficiency of grounds on the basis of facts on record in the impugned summoning order does not amount to enquiry under the amended provision of Section 202 Cr.P.C. Impugned summoning order dated 13.09.2021 does not reflect any such enquiry or investigation.

14- It is well settled by the Apex Court in case of Pepsi Foods (supra) that criminal law cannot be set in motion as a matter of course. It is not that the complainant has to bring only one witness to support his allegations to have the criminal law set in motion. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of accused.

15- It is also well settled that considerations justifying the exercise of inherent powers for securing the ends of justice vary from case to case and a jurisdiction as wholesome as the one conferred by Section 482 Cr.P.C. are not to be encased within the strait-jacket of a rigid formula.

16- In view of the above, prima facie case is made out for interference, hence matter requires consideration.

17- Sri G.S. Chaturvedi, learned Senior Advocate has further submitted that in an identical case (Application u/s 482 No.29635 of 2021) which was filed by Asish Mohapatra and 2 others, interim protection has been granted by a Coordinate Bench of this Court vide order dated 17.1.2022. Sri Vinayak Mithal, learned counsel for opposite party no. 2 has not disputed the submission raised by learned Senior Advocate and he has no objection if prayer for protection is granted to the present applicants as both the matters need to be decided by the same bench.

18- Two weeks' time is granted to the opposite parties to file counter affidavit. Rejoinder affidavit may be filed by the applicants within a week thereafter.

19- List this case on 22.03.2022 before the appropriate Bench along with record of Crl. Misc. Application u/s 482 Cr.P.C. No.29467 of 2021 (Dr. Mahendra Singh and another vs. State of U.P. and another).

20- In the meantime, effect and operation of the aforesaid impugned order dated 13.09.2021 passed by the Additional Chief Judicial Magistrate, Court No. 5, Meerut against the applicants shall remain stayed.

21- It is made clear that this case shall not be treated as part-heard or tied-up to this Bench.

Order Date :- 2.3.2022

AU