Hem Karan Mathur And Another vs State Of U.P. Thru. Addl. Chief ...
2023 Latest Caselaw 3280 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

RESERVED
 
Court No. - 9
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 372 of 2023
 

 
Petitioner :- Hem Karan Mathur And Another
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home Lko. And Others
 
Counsel for Petitioner :- Navneet Awasthi,Gaurav Chand Kaushik,Sr. Advocate
 
Counsel for Respondent :- G.A.,Ajay Kumar Singh,Shobhit Mohan Shukla
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Narendra Kumar Johari,J.

1. Heard Shri Raghvendra Singh, learned Senior Advocate assisted by Shri Raj Deepak Chaudhary for the petitioners, Shri Prachish Pandey, learned counsel representing the State-respondents and Shri Shobhit Mohan Shukla along with Shri Ajay Kumar Singh, learned counsel representing the complainant.

2. By instituting these proceedings under Article 226 of the Constitution of India the petitioners seek to challenge the First Information Report No.0006 of 2023 lodged on 05.01.2023, under sections 419, 420, 467, 468, 469, 471, 447, 406, 384, 506 of Indian Penal Code at Police Station-Jahangirabad, District-Barabanki.

3. Submission on behalf of the petitioners, as advanced by the learned Senior Advocate, primarily is that the recitals made in the impugned First Information Report are apparently incorrect and that in fact remedy to the complainant lies before the National Company Law Tribunal (hereinafter referred to as 'NCLT') for the reason that allegations contained in the impugned F.I.R. relate to the disputes between the parties which have arisen in relation to the administration of a Company. It has further been argued on behalf of the petitioners that dispute between the parties is thus purely civil in nature in relation to business transactions of the Company and that the complainant has attempted to give such dispute a colour of criminal dispute and accordingly the First Information Report is liable to be quashed.

4. It has also been urged on behalf of the petitioners that even from a bare perusal of the contents of the impugned First Information Report, commission of any criminal offence is not disclosed and that the impugned First Information Report has been lodged with mala fide intentions. Accordingly, as per the petitioners the impugned First Information Report and proceedings drawn pursuant thereto deserve to be quashed.

5. Per contra, learned State Counsel as also the learned counsel representing the complainant have, in unison, have opposed the prayers made in the writ petition by submitting that the scope of writ petition where challenge is made to an F.I.R. is very limited and since from a bare perusal of the contents of the impugned F.I.R. commission of cognizable offence is prima facie made out, hence it cannot be quashed in writ jurisdiction by this Court.

7. We have given our thoughtful consideration to the rival submissions made by the learned counsel representing the respective parties and have also perused the records available before us.

8. The impugned F.I.R. has been lodged by the complainant with the assertion that the complainant and his husband have been staying in abroad for last 35 years and have been posted in different countries as Non-Resident Indians. Further assertion made in the impugned F.I.R. is that with a view to make their contribution to the development of the State and also to run a school and to set up business, the complainant along with her husband came back to India and since husband of the complainant is an engineer having studied in Indian Institute of Technology and belongs to a family of farmers, he was inclined to take up the agricultural work specially advance organic farming, he came in contact with the petitioner no.1, who told him that he had been working as Soil Conservation Officer in the State Government. Averment made in the impugned F.I.R. further is that during his contact with the complainant and her husband the petitioner no.1 came to know that the complainant owns sufficient land in District-Barabanki and accordingly petitioner no.1 made a proposal for shifting his fertilizer factory situate at Chinhat, Lucknow to Barabanki and that since the complainant's husband was interested in organic farming, he contributed three acres of land and Rs.25 Lakh in the account of the Company, in lieu thereof the petitioner no.1 proposed 50% partnership in his Company and accordingly the complainant and her son, Madhavam Singh became Director of the Company known as 'New Vanshika Bio Agro Private Limited'.

9. The recital made in the impugned F.I.R. further is that in terms of such an agreement on 16.01.2021 the complainant executed a sale deed in respect of 3 acres of land in favour of the fertilizer Company and that complainant and her son became share holder of the Company to the extent of 40% and 10% respectively and further that the factory became functional after new construction and its shifting from Lucknow to Barabanki. It has also been stated in the impugned F.I.R. that whenever husband of the complainant intended to inspect the quality of the fertilizer being produced by the Company, the petitioner no.1 had been creating obstructions and in this process the complainant came to know that the petitioner no.1 has been indulging in production of adulterated and spurious fertilizer and have not been fair in its sale and further in evasion of GST and also that the petitioners had been using the money of the Company for their personal use which was opposed by the complainant and her husband, as a result of which threats were extended to them by the petitioners. The F.I.R. further states that the complainant and her son exited from the Company after resigning from directorship. However, the petitioners have been making endeavours to grab 50% share which compelled the complainant to go back to her daughter in America. The F.I.R. further contains an allegation that as was expected, the fertilizer Company was found indulging in various irregularities even in crime in respect of which F.I.R. No.232 of 2022 was registered against it. As per the impugned F.I.R. threats were extended to the complainant and her son and accordingly for 10% share transfer the petitioners made the complainant and her son sign certain documents and accordingly by indulging in forgery on 25.06.2022 entire share holding was got transferred in favour of the petitioners who became 100% share holder.

10. In the impugned F.I.R. further recital is that on the basis of forged and fabricated documents containing forged signatures of the complainant certain loan was obtained from Canara Bank to the tune of Rs.2.54 crore for the benefit of petitioner no.2, who is the wife of the petitioner no.1 and such information was sent to the Canara Bank by the complainant. It is also alleged in the impugned F.I.R. that, at present, the petitioners are running the factory unlawfully and they have even extended the factory. The F.I.R. also contains the allegations of using the money belonging to the Company by the petitioners for their personal use by embezzlement, fabrication of forged documents and using forged signatures of the complainant. There are also allegations for extending threats and intimidation by the petitioners against the complainants.

11. If we carefully peruse the impugned First Information Report, what we prima facie find is that the same contains allegations regarding fabrication of documents which are said to be forged and prepared on the basis of forged signatures of the complainant and have been used to procure loan from the bank. Another allegation regarding criminal act of the petitioners as is borne out from a bare perusal of the impugned F.I.R, is in relation to getting shares of the Company transferred in favour of the petitioners by using documents containing forged signatures of the complainant. The First Information Report also contains allegation of extending threats and intimidation against the complainant and her son.

12. In the background of the aforesaid facts and allegations as mentioned in the impugned F.I.R., it has been argued by the learned Senior Advocate representing the petitioners that so far as the transfer of shares owned by the complainant and her son is concerned, no such transfer has taken place and accordingly his submission is that such allegation is apparently incorrect.

13. Refuting the aforesaid submission, learned counsel representing the complainant has argued that in fact all attempts were made by the petitioners to get the share transferred in their favour using forged and fabricated documents containing forged signatures of the complainant and that such documents were presented before the bank to procure loan.

14. Even if the shares have actually not been transferred in favour of the petitioners, as is the submission of the learned Senior Advocate representing them, the recitals made in the F.I.R. are in relation to obtaining forged signatures on certain documents and using the same for the purposes of attempting to get the shares transferred in the name of the petitioners. It is also the allegation in the impugned F.I.R. that such forged and fabricated documents prepared by the petitioners on the basis of forged signatures of the complainant, have been used to procure the loan from the bank. It is to be noticed that factum of procuring loan is not being denied by the petitioners. Submission on their behalf rather is that share holding pattern was produced before the bank authorities for procuring loan which disbursed the loan only after being satisfied about the genuineness of the documents on the basis of which loan was applied for.

15. The said submission of the learned counsel for the petitioners, however, does not satisfy the Court so as to come to the conclusion that on the basis of recitals made in the impugned F.I.R. the offences punishable under different section of Indian Penal Code as mentioned in the impugned F.I.R. are prima facie not made out. As to whether the shares were actually transferred or they were attempted to be transferred by using forged and fabricated documents as also the forged signatures of the complainant is a matter of investigation into which this Court, at this juncture, while examining the validity of the impugned First Information Report in exercise of jurisdiction under Article 226 of the Constitution of India, cannot go into for the reason that such issues always depend on evidence and material to be collected by the investigating agency during the course of investigation, of course, subject to proof in the Court during the trial if a charge-sheet is filed.

16. As regards the submission of the learned counsel for the petitioners that the allegations contained in the impugned F.I.R. relate to proceedings and disputes which have arisen in relation to administration of the Company and such dispute can be resolved by taking recourse to the relevant provisions of law before the NCLT, we may only note that so far as the allegations made in the impugned F.I.R. in this case are concerned, they are clearly in respect of forging and fabricating certain documents for certain purposes such as transfer of shares and procurement of loan and using forged signatures of the complainant. As a matter of fact the provisions of Companies Act which provide redressal of grievances before the NCLT, in our opinion, do not create any bar against an investigation by the police authorities if any cognizable offence punishable under the Indian Penal Code is said to have been committed even in connection with the affairs of the Company.

17. Learned Senior Advocate while espousing the cause of the petitioners has placed reliance on an interim order dated 30.11.2021 passed by this Court in Writ Petition No.27486 (M/B) of 2021, Vandana Yadav and others vs. State of U.P. and others and has submitted that in somewhat similar circumstances this Court though did not stay the investigation of the First Information Report, however, it was provided that the petitioners of the said writ petition who were accused in the F.I.R., shall not be arrested. In this respect it is to be noticed that it has been informed at bar that the said writ petition, namely, Writ Petition No.27486 (M/B) of 2021 has ultimately been dismissed by this Court by means of an order dated 12.09.2022. It is also to be noticed that the order dated 30.11.2021 passed in the said case is only an interim order and hence it does not constitute any binding precedent. We also notice that the facts in the said case were different inasmuch as complainant in the said case had already taken recourse to the remedy available before the NCLT and thus it was urged on behalf of the accused persons in the said case that when the complainant did not succeed in the proceedings before the NCLT the First Information Report, under challenge therein, was lodged. Accordingly, the order dated 30.11.2021 passed by this Court under Article 226 of the Constitution of India is of no avail to the petitioners in this case.

18. The law relating to quashing of F.I.R. by this Court in proceedings either under Article 226 of the Constitution of India or under section 482 of the Code of Criminal Procedure is well settled in the case of State of State of Haryana and others vs. Bhajan Lal and others, reported in [1992 Supp (1) SCC 335]. The said judgment contains certain instances or guidelines where quashing of F.I.R. is permissible. In our opinion, if we examine the recitals made in the impugned F.I.R., the present case does not fall within the guidelines contained in the case of Bhajan Lal and others (supra) and accordingly the writ petition fails, which is hereby dismissed.

19. However, notwithstanding dismissal of this writ petition, it is always open to the petitioners to seek their remedy of anticipatory bail by approaching the court concerned by invoking section 438 of the Code of Criminal Procedure. We, thus, provide that in case the petitioners approach the court concerned with the prayer under section 438 of the Code of Criminal Procedure, such prayer shall be considered and decided by the court concerned in accordance with law.

20. There will be no order as to costs.

Order Date :- 02.02.2023

akhilesh/

(Narendra Kumar Johari, J.) (D. K. Upadhyaya, J.)