Capt. Abdul Sattar Ahmed Pagarkar vs R.H. Mendsonsa, Commissioner Of ...
2003 Latest Caselaw 235 Bom

JUDGMENT

J.G. Chitre, J.

1. The petitioner is hereby assailing the correctness, propriety and legality and continuance of the investigation in progress since 1998 in respect of C.R. No. 30 of 1998 from General Branch, GBCB, CID in respect of complaint filed by Mr. S.K. Wadhwani which alleges commission of offences punishable under the provisions of Section 406, 467 of IPC. Shri Wadhwani alleged that by taking his signatures on blank documents the petitioner committed fraud, misappropriation of his property and cheated him. He alleged in his complaint which he filed in the office of the Deputy Commissioner of Police, Crime Branch, Crawford Market, Mumbai on 18.3.1998 that his manager Shri Moorthy noticed that the petitioner took wrongful possession of his flat situated at Colaba and took away certain documents in context with his properties. He further alleged that by misusing a general power of attorney executed in his favour the petitioner swindled his money and purchased some flats in Mumbai, some flats in Ratnagiri. He further alleged that the petitioner by playing fraud executed a memo of understanding.

2. The petitioner appeared before the Investigating Officer during the course of the said investigation and produced the documents which were required by the Investigating Officer. Those documents are:-

1. Documents pertaining to registration/agreement of companies.

(a) Pacificlink Export Industries Pvt. Ltd., copy of certificate of incorporation and memorandum and article of association.

(b) Interocean Shipping & Trading Company copy of Partnership Deed.

(c) Shye Electronics Industries Pvt. Ltd., copy of certificate of incorporation and memorandum and article of association.

(d) Shye International Shipping and Chartering India Pvt. Ltd., copy of certificate of incorporation and memorandum and article of association.

2. Copy of documents pertaining to-

(a) Colaba flat - copy letter received from The Assistant Custodian Evacuees Property for converting the premises for commercial purpose.

(b) Lohtse flat - copy of purchase agreement and share certificate.

(c) Mamta flat - copy of purchase agreement.

(d) Bunglow and three flats at Ratnagiri - Relevant papers.

(e) Purchase agreement of flats in Zia Apartment.

3. Details of Vehicles.

(a) Tata Sierra (MH-01-P-1306) Exclusively used by Mr. S.K. Wadhwani. This car was supposed to have been sold to Mr. Surren Gurubakhshani. The original documents are handed over to Mr. Surren Gurubakhshani as per instruction from Mr. Surendra Wadhwani (original complainant). However, no payment has been received by Interocean Shipping and Trading Company, in whose name the car is registered.

(b) Contessa Classic (MH-01-3280). The car is registered in the name of Pacificlink Export Industries Private Ltd. and is used only by Mr. S.K. Wadhwani. The original papers are lying with me and I enclose copy of the car papers.

(c) Mercedes Benz (MH-01-S-1800). This car is registered in the name of Shye Electronics Industries Private Ltd., and is exclusively used by Mr. Surendra Wadhwani. The original car papers are with him. Mr. Wadhwani has taken a car loan form Bank of America and his installment payment is highly irregular. The Petitioner was required to face the telephone calls, and nasty reminder letters for non payment of monthly instalments, as co-director of the company. (As stated by the present petitioner) The approximately loan balance is roughly Rupees thirteen lacs. The petitioner enclosed copy of the letter from Bank of America for non payment of instalment for reference to Investigating Officer Mr. Parulekar.

4. Documents pertaining to investments.

(a) Sagar Flat. Copy of purchase agreement.

(b) Versova Flat. Copy of purchase agreement.

(c) Open Plot at Chennai.

4.(B) Details of investment of share capital of companies.

(A) Pacificlink Exports India P. Ltd., Rs. 14,99,200/- (present petitioner) Rs. 9,99,800/- (Shri S.K. Wadhwani) (original complainant).

(B) Shye Electronics India P. Ltd., Rs. 100/- by the present petitioner. Rs. 100/- by S.K. Wadhwani.

(C) Shye Shipping and Chartering India Pvt. Ltd., Rs. 1,00,000/- by present petitioner. Rs. 1,00,000/- by Shri S.K. Wadhwani.

(D) Interocean Shipping and Trading Company Rs. 56,081/- by present petitioner and the same amount by Shri S.K. Wadhwani.

5. Bank account details.

Present Petitioner Account No. 01S-NP-1155-00 ANZ Grindlays Bank, Bombay Central Branch.

Mrs. Nafeesa Begum A.S. Pagarkar, Account No. 01S-NP-12955-00 ANZ Grindlays Bank, Bombay Central Branch.

During the course of investigation statements of Ms. Anima Bhupendra Kapadia, Advocate & Solicitor, Mumbai and Anil Harish C/o. Harish D. Mansharamani, Mumbai were recorded and they are relevant to the decision of this petition. As per the submission of Shri Ramrao Adik, counsel appearing for the petitioner, there was a regular partnership between the present petitioner and Shri S.K. Wadhwani, the complainant and Shri S.K. Wadhwani had executed a general power of attorney in favour of the petitioner and in pursuance of that, the documents were executed through the help of solicitor firm where Ms. Anima Bhupendra Kapadia was working. The said solicitor firm is styled "M/s. Daphtary Feria and Divan". The bills of the said firm have been also included in the investigation. It shows that three regular meetings were held between the concerned persons for the purpose of drafting the memorandum of understanding, the document pertaining to grant of general power of attorney and other miscellaneous things. The statement of Anil Harish Mansharamani shows that there was discussion between Shri Sharat Chandra, Shri Arvind Jhaveri, Shri Nitin Jhaveri, Shri Jagdish Kumar Chandra and Shri Moin Haider Bijli Khan, as the purchasers on one side and Shri S.K. Wadhwani, present petitioner and Mrs. Nafeesa Begum Pagarkar in respect of transfer of shares connected with the company under the style "M/s. Csango". The said purchasers were to purchase the shares belonging to present petitioner, his wife and Shri S.K. Wadhwani. His statement shows that in respect of those documents which are concerned with the investigation and in respect of which a fraud has been alleged, the said Anil Mansharamani has signed on each page. Though he stated that he had signed it as required by Shri Pagarkar, the present petitioner, he was dodging the officers by saying at important stages that he was not knowing much about the said transactions. He also admitted that somewhere about June or July 1997 the brief memorandum of understanding (M.O.U.) was made between M/s. Csango and Shri Wadhwani and Captain Pagarkar (the present petitioner) for Pacificlink Export Industries Private Limited for there payment of the amount due from Pacific Link to "Csango" and he prepared the said MOU which was signed by the present petitioner only, according to his statement.

3. Shri Adik submitted that the said person happens to be a close relative of said S.K. Wadhwani and his lawyer. Therefore, how much of reliance should be placed on his word? It is so because his statement shows that he stated that Shri S.K. Wadhwani was known to him since 3-4 years prior to recording of his statement as he was related to his wife and Shri Wadhwani used to consult him in respect of tax laws, company laws and Reserve Bank matters and he happens to be his Advocate. Shri Adik submitted that the general power of attorney was given by Shri S.K. Wadhwani in favour of the petitioner because said Wadhwani was residing in Hongkong and was unable to attend the business of those firms and it was decided between the present petitioner and Shri S.K. Wadhwani to disconnect from each other by memorandum of understanding. Shri Adik submitted that when that is so, how there could be criminal offence indicated by the FIR which has been lodged by Shri S.K. Wadhwani and in respect of which the investigation is going on since the year 1978. Shri Adik field Xerox copy of the plaint in respect of Suit No. 4334 of 1998 filed in Bombay High Court in its original side jurisdiction and he said suit is between the present petitioner and Shri S.K. Wadhwani and is in respect of dissolution of partnership, determination of the shares of each of them, partition of the shares, rendition of accounts and all other sundry matters.

4. Shri Adik submitted that when the suit is pending in the High Court and it is dealing with all the points which have been referred to in the said FIR, how far the said investigation should be permitted to be continued which is causing annoyance to the petitioner and hampering his fundamental rights. He submitted that the points raised in the said FIR are totally indicating a civil dispute and those allegations are void of any substance. They do not spell out any offence and, therefore, the investigation needs to be quashed. Shri Adik placed reliance on two judgments of the Supreme Court (1) State of West Bengal and Ors. v. Swapan Kumar Guha and Ors. wherein the Supreme Court held that if an offence is disclosed, the High Court under Article 226 of the Constitution will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed; if, however, the materials do not disclose an offence, no investigation should normally be permitted. Justice requires that a person who commits an offence has to be brought to book and must be punished for the same. If the Court interferes with the proper investigation in a case where an offence has been disclosed, the offence will go unpunished to the serious detriment of the welfare of the society and the cause of the justice suffers. It is on the basis of this principle that the Court normally does not interfere with the investigation of a case where an offence has been disclosed. But it cannot be said that an investigation must necessarily be permitted to continue and will not be permitted by the Court at the stage of investigation. Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation in the offence to be completed for collecting materials for proving the offence. If on the other hand, the Court on a consideration of the relevant materials is satisfied that no offence is disclosed, it will be the duty of the Court to interfere with any investigation and to stop the same to prevent any kind of uncalled for and unnecessary harassment to an individual.

5. Shri Adik referred to another judgment of the Supreme Court in the matter of Madhavrao Jiwaji Rao Scindia and Anr. etc. v. Sambhajirao Chandrojirao Angre and Ors., etc., wherein the Supreme Court held that the legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.

6. In the same judgment the Supreme Court held that a case of breach of trust is both a civil wrong and a criminal offence. There would be certain situations where it would predominantly be a civil wrong and may or may not amount to a criminal offence. In the instant case, a complaint was filed for offences punishable under Sections 406, 467 read with Sections 34 and 120B of the Penal Code. The property was trust property and one of the trustees was member of the settlor's family. The criminal proceedings were quashed by High Court in respect of two persons but they were allowed to be continued against the rest. It was held that the case in question was one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offences are wanting. In that matter the criminal proceedings was quashed by the Supreme Court.

7. Actus non facit reum nisi mens sit rea. The intention behind the acts is to be understood. In respect of the offences which are now in question, so far as the present matter is concerned, all offences need existence of an intention to commit an offence with dishonesty. These has to be dishonest intention of causing wrongful loss to the person aggrieved and wrongful gain to person who is to be the target of the investigation and resultant prosecution. The documents on record, the material on record unequivocally herald that there is a civil dispute between the parties and both, the petitioner and Shri S.K. Wadhwani, are trying to separate from each other in respect of the companies, concerns, partnership firms in which they are directors, partners or share holders. Therefore, a memorandum of understanding has been executed between them not by themselves but by taking the help of a solicitor firm. The said solicitor firm's letter of billing shows that at least three meetings were held in that context. For what purpose there was need of executing a memorandum of understanding between the present petitioner and the said Shri S.K. Wadhwani? The thing is obvious that they were not in a position to pull on cordially and, therefore, they decided to separate from each other. Another reason appears to be significantly cropping up showing that Shri S.K. Wadhwani who happens to be residing at Hongkong is not in a position to supervise the things in India. It appears that he has appointed Mr. Moorthy to be his manager and said Moorthy visited the flat at Colaba where he saw that lock was made faulty, as per the allegations made in the said FIR. Other documents, as submitted by Shri Ramrao Adik, show that the present petitioner was the person who was entrusted with the work of getting the letter for using said flat for commercial purpose by the competent authority for evacuees property. It means that there has been indication of civil dispute between the present petitioner and the said Shri S.K. Wadhwani.

8. The statement of Anil shows that some persons, the purchasers wanted to purchase the shares owned by Shri S.K. Wadhwani, the present petitioner, and his wife in respect of the company styled as "Csango". For that purpose the help of Anil was taken who happens to be not only the relative of Shri S.K. Wadhwani, but his regular advocate. It also shows that a process has started for winding up the business between the petitioner and said Shri S.K. Wadhwani and finally it went to the High Court in its original side as a suit.

9. When a person is enforcing his civil right and in contest with that enforcement of his civil right he commits an act which may not be liked by his adversary, the said civil dispute would not assume the nature of a crime because the crime always requires mens rea. The intention to commit the crime. Assertion of civil rights and resultant civil dispute cannot be brought within the four corners of the offences or the crimes as used in general parlance. Those acts should be coupled with the necessary ingredients of the offences indicated by Indian Penal Code or other special acts. Void of that would be civil dispute only and civil dispute in its original existence and nothing more than that.

10. It is well settled principle of law even in respect of the proceedings pertaining to Section 145 of Criminal Procedure Code, 1973 (hereinafter referred to as the Code for convenience) that whenever a civil court is having cessin over the dispute for adjudication, the criminal courts are refrained from dealing with such disputes. When there is such an embargo indicated in respect of the hearing of such proceedings on criminal courts, how such lingering investigation should be permitted to linger on for further more days. All the points which have been mentioned in the FIR which has been lodged by Shri S.K. Wadhwani are the subject matter of a civil suit which is to be decided by the High Court. The High Court is having cessin over the adjudication of those disputes and when that is so, how there could be a parallel enquiry continuing. When the High court is having session over the points of dispute for adjudication in its civil jurisdiction, how such investigation should be permitted to continue when it could not be completed between the year 1998 till today.

11. Even if the material which is on record is considered, it does not spell out even prima facie offence because what has been alleged to have been done by the present petitioner happens to be for enforcing of his civil rights in respect of the civil dispute between himself and Shri S.K. Wadhwani. It is not a case that the present petitioner is in fact a stranger and does not have any concern whatsoever with the properties mentioned in the said FIR. It is very difficult to digest that a man of commercial community, a man dealing in international trade is signing blank papers and allowing it to be produced before the solicitor for execution of the necessary deeds. It is ab initio unnatural. Apart from that, his own admission in FIR shows that he is accepting the execution of the memorandum of the understanding. He is admitting the execution of the general power of attorney granted in favour of the present petitioner but denying the important things which are inconvenient to him and prejudicial to the present petitioner. It cannot be permitted to be investigated into by a lingering investigation when a civil court is having cessin over all those points and adjudication in civil jurisdictions where the court is supposed to decide the rights of litigant in respect of the properties.

12. The Supreme Court has observed in the judgment of the State of West Bengal and Ors. v. Swapan Kumar Guha and Ors. (supra) and Madhavrao Jiwaji Rao Scindia and Anr., etc. v. Sambhajirao Chandrojirao Angre and Ors., etc., (supra) that by considering the facts of each and every case the Court should come to a conclusion where such investigation, such prosecution should be permitted to continue. It is a matter of experience that every investigation, every prosecution puts a person to lot of hardship, annoyance and expenditure by engaging a lawyer. It requires him to attend the court or the offices for the purposes of prosecution or investigation and that takes him away from his regular occupation which is for his livelihood. In addition to that it adds to his humiliation and lowers down his dignity in the society. It is a matter of experience that a person does not feel happy while entering into the office of the investigating agency or the court premises and court atmosphere.

13. Therefore, in the interest of justice such a lingering investigation has to be quashed and, therefore, this Court allows this petition and quashes the said investigation by exercising the jurisdiction under Section 482 of the Code and Article 226 of the Constitution of India. The officers of the GBCB, CID, Mumbai are hereby directed to drop the said investigation and return the documents to the petitioner which have been submitted by him to Shri Parulekar, the then Investigating Officer. The said Investigating officer and officials are hereby directed to refrain from interfering the course of the suit which is pending in the High Court in its original side for adjudication of the civil disputes between the present petitioner and Shri S.K. Wadhwani. The bail bond if taken by the investigating officer from the present petitioner stands discharged. No order as to costs. Rule made absolute.