Calcutta High Court (Appellete Side)
Arunava Adhikary vs The State Of West Bengal And Ors on 4 October, 2023
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
CRR 2886 of 2022
With
CRAN 1 of 2022
Arunava Adhikary
Vs.
The State of West Bengal and Ors.
With
CRR 3629 of 2022
With
CRAN 3 of 2022
With
CRAN 5 of 2023
Bhumika Jitendra Navlani and Others
Vs.
The State of West Bengal and Ors.
With
CRR 464 of 2023
Jitendra Chandralal Navlani
Vs.
The State of West Bengal
Mr. Y. J. Dastoor, Sr. Adv.
Dr. Sujay Kantawala
Mr. S. Yadav
Mr. Aloke Nath Chandra
Ms. S. Grewal
..for the petitioner in CRR 3629 of 2022
and Opposite parties in CRR 2886 of 2022
Mr. R. B. Mokashi
2
Mr. Phiroze Edulji
Mr. Samrat Goswami
..for the petitioner in CRR 2886 of 2022
Mr. Phiroze Edulji
Mr. Samrat Goswami
..for the O.P. in CRR 2886 of 2022, CRR 3629
of 2022 and CRR 464 of 2023.
Mr. Sandipan Ganguly, Sr. Adv. Ld. P.P.
Mr. Rudradipta Nandy, Ld. APP
Mr. Anand Keshari
..for the State
Hearing concluded on: 21 September, 2023.
Judgment on: 29 September, 2023.
BIBEK CHAUDHURI, J. : -
1.
These three criminal revisions were heard together because of the
fact that these proceedings emanated from the same facts and this Court
delivers the common judgment on conclusion of hearing.
2. It is on record that one Bhumika Jitendra Navlani and Jitendra
Chandralal Navlani are the Directors of Bonanza Fashion Merchants
Private Limited. They have been arrayed as accused persons in connection
with Narendrapur P.S Case No.573 of 2022 dated 8th May, 2022 under
Sections 417/419/420/120B/465/467/468/471 of the Indian Penal
Code read with Sections 66C and 66D of the Information Technology Act
corresponding to G.R Case No.3467/2022 pending before the learned
Additional Chief Judicial Magistrate, Baruipur in the District of South 24
Parganas. It is pertinent to mention here that the above mentioned
criminal case has been instituted on the basis of a written complaint
submitted by one Arunava Adhikary, petitioner of CRR 2886 of 2022
before the Officer-in-Charge of Narendrapur Police Station.
3. It is the case of the petitioners in CRR 3629 of 2022 that on 1st
October, 2013 the petitioners No.1 and 2 purchased 100% share of
Bonanza Fashion Merchants Private Limited, petitioner No.3 herein
having its registered office at 16 Bonfield Lane, 5th Floor, Kol-700001. The
petitioners No.1 and 2 thus became the Directors of the said company.
Sometime in the year 2016 when the process of change of registered office
address of the petitioner No.3 company was pending and the process was
going on to change the office address of petitioner No.3 company from
Kolkata to Mumbai, the petitioners No.1 and 2 sought help of their
childhood friend, namely, Gaurav Sehgal who had business in Kolkata to
arrange for a temporary office in Kolkata. On 1st August, 2016 the said
Gaurav Sehgal had forwarded a NOC of the landlord, an electricity bill
dated 27th July, 2016 for premises at Sunny Valley, Flat No.1A, Block-5,
484, Uttar Purba, Fartabad, Sahapada, near Tirtha Club, Kolkata-84.
Subsequently, on 12th August, 2016 the petitioners No.1 and 2 filed an
application before the registered office (ROC) for change of address from
16 Bonefield Lane, to Flat No.1A, Sunny Valley, Block 484, Uttarpurba,
Fartabad, Sahapada near Tirtha Club, Kolkata. Subsequently, since 2017
the petitioners have taken steps to change the address of the registered
office of Bonanza Fashion Merchants Private Limited Company to 45
Mittal Chambers, Nariman Point, Mumbai-400021. It is sufficient to
mention here that several unsuccessful attempts were made to implicate
the petitioners No.1 and 2 in various criminal cases but the prosecuting
agencies were not successful in their investigation and in respect of some
of the cases it was established that the petitioners were falsely implicated
by the police and other Investigating Agencies.
4. That on 11th May, 2022 a sum of Rs.3,00,02,000/- (Rupees three
crores and two thousand only) was allegedly seized by the police
personnel in course of their duty of naka checking within the jurisdiction
of Ballavpur under Raniganj Police Station in the State of West Bengal,
from the possession of four persons, who were travelling by a car. A Police
Officer attached to Raniganj Police Station registered a case against the
said persons under Section 41 Cr.P.C read with Sections 379 and 411 of
the IPC. The said arrested persons were produced before the Chief
Judicial Magistrate at Asansol and they were granted bail. Subsequently,
one Rajib Dey claimed the seized money before the learned Chief Judicial
Magistrate at Asansol claiming that the said money was sent to purchase
poultry feed for a chicken farm owned by the said Rajib Dey. After
verification of the claim and on the basis of the police report, the learned
Chief Judicial Magistrate released the said seized money in favour of the
said Rajib Dey.
5. However, on 17th May, 2022, one Sudip Dasgupta, Inspector-in-
Charge of Raniganj Police Station made an application before the learned
Chief Judicial Magistrate praying for causing inquiry and issuance of
search warrant stating, inter alia, that during inquiry of Raniganj Police
Station G.D Entry No.681 dated 11th September, 2022 under Section 41
Cr.P.C read with Sections 379/411 of the IPC, it came to the notice of the
concerned Police Officer that some financial institutions are involved in
the case of money laundering. One of such institution is the petitioner
No.3 herein having its registered office at Sunny Valley, Flat No.1A and in
order to unearth the involvement of the petitioner No.3/company in
money laundering, it was urgently required to verify their financial papers
and records. Therefore, he has prayed for an order of the learned
Magistrate to inquire into the office and financial records of Bonanza
Fashion Merchants Private Limited at Kolkata. This is one side of the
allegation made by the police authority against Bonanza.
6. On 28th May, 2022 one Arunava Adhikary being a resident of Flat
No.3A, Sunny Valley, Block 5, 484, Uttarpurba Fartabad, Sahapada
within P.S Narendrapur lodged a written complaint stating, inter alia, that
on 21st May, 2022 he received two letters from "Indiabulls" sent in the
name of Bonanza Fashion Merchant Private Limited, Arunava Adhikary,
Sunny Valley, Flat No.1A intimating change of applicable rate of interest
in respect of some loan taken by Bonanza. It was stated by Mr. Arunava
Adhikary, the defacto complainant, that he was never associated with any
such company. He inquired into the matter from the available website and
came to know that the said company was incorporated sometime in July,
2009. It is registered with the Registrar of Companies, Kolkata having its
address in the name of the defacto complainant at Sunny Valley, Flat
No.1A. The said address was also noted in several websites. Thus, he
anticipated that the petitioners No.1 and 2 being the Directors of the
company entered into a criminal conspiracy with other unknown persons
by stealing and using the identity and credentials of the defacto
complainant in fraudulent manner from his computer system by hacking
email ID, phone number etc and have also formed a fake company for the
purpose of cheating for their wrongful gain.
7. On the basis of the said complaint, police registered Narendrapur
P.S Case No.573 of 2022 dated 28th May, 2022 under Sections
417/419/420/120B/465/467/468/471 of the IPC and Sections 66C and
66D of the I.T Act. Subsequently, the investigation of the case was taken
up by the CID and one Rajarshi Banerjee took up the investigation of the
case.
8. In CRR 2886 of 2022, it is alleged by Mr. Adhikary that he is having
business relationship since many years with one Mr. Gourav Sehgal. The
said Gourav Sehgal requested the petitioner for providing address for one
of his closed childhood friend's company in Kolkata. The petitioner had
agreed to provide his residential address at Sunny Valley, Flat No.1A,
Block 484 Uttar Purba Fartabad, Kolkata. The residential address of the
petitioner was used as the registered business address of Bonanza
Fashion Merchants Private Limited at Kolkata. The petitioner came to
know that on 11th May, 2022 some cash money was recovered from the
possession of four persons. On 17th May, 2022, one Sudip Dasgupta,
Inspector-in-Charge of Raniganj Police Station obtained a search warrant
issued by the learned Chief Judicial Magistrate, Asansol for conducting
search in the official business address of Bonanza Fashion Merchants
Private Limited at Flat No.1A, Sunny Valley, Kolkata. On the strength of
the said search warrant police conducted search on 27th May, 2022 at
Flat No.3A Sunny Valley and petitioner's laptop, external hard disk and
mobile phone were seized. At the time of search and seizure, the police
personnel informed the petitioner that they were searching in connection
with a suspected case of money laundering allegedly committed by
Bonanza. Since the petitioner was not attached to Bonanza in any
business transaction, he lodged a complaint in the Narendrapur Police
Station against Bonanza and it Directors, on the basis of which a case
under Section 417/419/420/120B/465/467/468/471 of IPC read with
Section 66(c) & 66(d) of the Information Technology Act was registered.
After filing the said FIR on the basis of the advice and instruction of the
police officers, his friend Gourav Sehgal contacted him and reminded him
of his consent for issuing the address of his flat as the business address
of Bonanza Fashion Merchants Private Limited in Kolkata. Immediately
thereafter on 2nd June, 2022 and on 8th June, 2022 his statement was
recorded and videographed before the Additional Officer-in-Charge, Anti
Cheating and Fraud Section, CID. In his statement he expressed the true
version of the incident that he had given consent to Bonanza to use the
address of his flat as the business address of the said company in
Kolkata. He also made an application on 2nd June, 2022 to the Additional
Officer-in-Charge, Anti C.F Section, CID, Bhabanibhawan declaring his
consent given to Bonanza for using the address of his residential flat as
the business address of Bonanza. On 2nd August, 2022 he also affirmed
an affidavit stating the aforesaid facts and also declared that the
statement made in the FIR in connection with Narendrapur P.S Case
No.573 of 2022 is not correct and it was made under the instruction and
pressure exerted upon him by the police authority. Therefore the
petitioner has prayed for quashing of the FIR, further investigation and
proceeding being Narendrapur P.S Case No. 573 of 2022.
9. The petitioner No.2 of CRR 3629 of 2022 has also filed another
revision being CRR 464 of 2023 with a prayer to pass appropriate
direction upon the trial court allowing him to attend a business
conference in Dubai from 10.02.2023 to 14.02.2023.
10. At the outset I would like to record that CRR 464 of 2023 has
become infractuous in view of the fact that period for which the petitioner
wanted to travel Dubai has expired and at the stage no order is required
to be passed in CRR 464 of 2023.
11. It is the case of the petitioners of CRR 3629 of 2022 that after
purchase of 100% share of Bonanza by petitioners No.1 and 2,
administration of the said company was transferred in favour of the
petitioners No.1 and 2 and they became the Directors of the said
company. After purchasing 100% share of the company, registered
address of the said company was required to be changed so the
petitioners No.1 and 2 requested his friend Gaurav Sehgal to provide an
address in Kolkata and he provided the address of Flat No.1A, Sunny
Valley. The said address was incorporated as the address of the company
at Kolkata. However, the business of the company was conducted from
the very beginning, from Mumbai. Since 2016, the petitioners had been
taking steps to change the address from Kolkata to Mumbai.
12. At this stage it will not be out of place to mention that the defacto
complainant of Narendrapur Police Station Case No.573 of 2022 dated
28th May, 2022 has filed a revision which has been registered as CRR
2886 of 2022 for quashing the FIR on the basis of which Narendrapur
Police Station Case No.573 of 2022 dated 28th May, 2022 was registered,
on the ground that he was forced to lodge the complaint against the
petitioners of CRR No.3629 of 2022 and on the request of Gaurav Sehgal
he permitted Bonanza to temporarily use his address as the registered
office at Kolkata.
13. Dr. Sanjay Kaulthawal, learned Advocate on behalf of the
petitioners first refers to page 137 of the writ petition which is an
application under Section 451 of the Cr.P.C filed by one Rajib Dey
claiming the seized amount of Rs.3,00,02,000/- stating, inter alia, that
the said money belonged to him and he was sending the said money for
purchasing poultry feed for his poultry farm under the name of Suryajyoti
Poultry Farm. Therefore, there was no connection of Bonanza or its
Directors with the said seized money. Thus, the allegation of money
laundering by Bonanza falls flat. When the police found that the
petitioners and their company could not be tagged with the money seized
by the police attached to Raniganj Police Station, CID West Bengal was
involved in the act of roping the petitioners and the company in a false
case of cheating and forgery putting pressure upon Arunava Adhikary to
lodge a false complaint against the petitioners.
14. Dr. Kaulthawal, further submits before me that on the basis of an
information made by the petitioner No.2 before the Officer-in-Charge of
Worli P.S on 14th November, 2022 a case under Section 120B/384/386 of
the IPC was registered against Rajarshi Banerjee and three others. The
said Rajarshi Banerjee happens to be the Investigating Officer of
Narendrapur Police Station Case No.537 of 2023 dated 28th May, 2022. In
his complaint he stated that he carries on business as one of the
Directors of Bonanza Fashion Merchant Private Limited and the
customers of the said company include the big business houses like
Shapoorji Pallonji, Bombay Dyeing, United Phosphorus, Indiabulls,
Raheja Developers etc. On 24th July, 2022 his wife, petitioner No.1 herein,
was returning from Dubai with their children. When she landed, she came
to learn from the Airport Authority that CID Kolkata has issued a Look
Out Circular against her and she was detained in the said night at
Mumbai Airport. On the next morning, Rajarshi Banerjee of CID Kolkata
came to Mumbai and arrested petitioner No.1 and brought her to Sahar
Police Station Mumbai. At that time the petitioner No.2 contacted his
relative, namely, Karim Dhanani to send help to her. He made Rajarshi
Banerjee an offer upon which the petitioner No.2 also spoke with Rajarshi
Banerjee and he told petitioner No.2 that he would arrest his wife and
family members and take them to Kolkata. He also threatened to cause
physical assault to them with dire consequence and demanded Rs.10
crores from petitioner No.2. He also shared his mobile phone number with
the petitioner No.2. It was specifically demanded that a sum of Rs.10
crores would be paid to him at some place in Nepal. When the defacto
complainant agreed to such extortion, the police officer released his wife
upon bail. Subsequently, discussions were held many times with Rajarshi
Banerjee and Karim Dhanani over payment of the said money at Mumbai
and Kolkata. On 7th June, 2022, Rajarshi Banerjee told petitioner No.2
and his friend Gaurav Sehgal to meet him at Sea Lord Restaurant Worli
Mumbai. Gaurav Sehgal met him at the said restaurant and they
discussed about the exchange of money. At that time, the said Rajarshi
Banerjee told that he was demanding the money under the instruction of
Mr. Manoj Malavya, Director General of Police and Rajsekhar an
Additional Director General, CID and some political big wigs. He also
assured that if the said money is paid to him the petitioners will be
relieved of all criminal matters. On that date a sum of Rs.1 crore was paid
to Rajarshi Banerjee. On 8th June, 2022 Rajarshi Banerjee met Gaurav
Sehgal in Taj Hotel Kolkata. At that time again a sum of Rs.1 lakh was
paid to him. Rajarshi Banerjee on different dates and times extorted
money from the petitioners through their relatives and associates. On 26th
July, 2022 he received a sum of Rs.10 lakhs from Mr. Karim Dhanani at
Nariman point. He also paid Rs.8 lakhs on 14th August, 2022. Under the
instruction of Rajarshi Benerjee, another Police Officer, namely, Sumit
Banerjee also demanded money from the petitioners. Rajarshi Banerjee
also told Karim Dhanani and Gaurav Sehgal to transfer the said amount
to Hawala and gave a mobile number to both of them for the Hawala
transaction. It is also stated by the petitioner No.2 in his complaint that
the registered office of Bonanza Fashion Merchant Private Limited is
situated at Kolkata and he and his wife have purchased 100% share of
the said company on 1st October, 2013. Since the petitioners had no
address in Kolkata while taking up the process of changing his office from
Kolkata to Mumbai, he temporarily used the address of Arunava Adhikary
on the request of Gaurav Sehgal.
15. On the basis of the said complaint, the Government of Maharashtra
directed transfer of investigation of CR No.1181/2022 at Worli P.S
Mumbai City, Maharashtra to CBI because of the fact that the complaint
submitted by Jitendra Chandralal Navlani reveals that the scope of
investigation in respect of the said complaint has interstate ramification
covering the State of West Bengal and Maharashtra and also beyond India
that is Nepal. It has also been alleged by the complainant that there was
illegal demand of money through Hawala network. Further role of High
Ranking Police Officers and politicians from West Bengal has also been
alleged in the present offence. So the said criminal investigation was
directed to be conducted by CBI.
16. Under such factual conspectus, Dr. Kaulthawal invites this Court to
consider as to whether the criminal case instituted against the petitioners
vide Narendrapur P.S Case No.573 of 2022 dated 28th May, 2022 merits
of further police investigation and criminal trial. The defacto complainant
of the said case was forced to lodge a false complaint against the
petitioners. He subsequently, retracted from the complaint files, a
criminal revision which is being heard analogously admitting, inter alia,
that on the request of Gaurav Sehgal he permitted Bonanza to use the
address of his residential flat temporarily as the registered office of the
business. It is also mentioned that the registered office of Bonanza is
recorded as Flat No.1A, Sunny Valley but the Investigating Officer
conducted investigation in the residence of Arunava Adhikary at Flat
No.3A, Sunny Valley where he resides as a tenant. The police seized one
mobile phone, Sim Card, one Dell Laptop and three numbers of external
hard disks from Flat No.3A, Sunny Valley. Thus, no search was
conducted at Flat No.1A which is the registered office of Bonanza and
nothing was naturally found and seized from the said flat.
17. Dr. Kaulthawal next refers to a decision of the Hon'ble Supreme
Court in the case of Mohammad Wajid & Anr. vs. State of U.P & Ors.
reported in 2023 LiveLaw (SC) 624. In the said report the Hon'ble
Supreme Court had the occasion to consider the principles laid down in
the case of Bhajan Lal, Golconda Linga Swamy, R.P Kapur, Nisar Holia
and others to lay down a comprehensive guideline for quashing of an FIR
under Section 482 or Article 226 of the Constitution. Paragraph 30 of the
said judgment is respectively quoted as hereunder:-
"30. At this stage, we would like to observe something important.
Whenever an accused comes before the Court invoking either the
inherent powers under Section 482 of the Code of Criminal
Procedure (CrPC) or extraordinary jurisdiction under Article 226
of the Constitution to get the FIR or the criminal proceedings
quashed essentially on the ground that such proceedings are
manifestly frivolous or vexatious or instituted with the ulterior
motive for wreaking vengeance, then in such circumstances the
Court owes a duty to look into the FIR with care and a little
more closely. We say so because once the complainant decides
to proceed against the accused with an ulterior motive for
wreaking personal vengeance, etc., then he would ensure that
the FIR/complaint is very well drafted with all the necessary
pleadings. The complainant would ensure that the averments
made in the FIR/complaint are such that they disclose the
necessary ingredients to constitute the alleged offence.
Therefore, it will not be just enough for the Court to look into the
averments made in the FIR/complaint alone for the purpose of
ascertaining whether the necessary ingredients to constitute the
alleged offence are disclosed or not. In frivolous or vexatious
proceedings, the Court owes a duty to look into many other
attending circumstances emerging from the record of the case
over and above the averments and, if need be, with due care and
circumspection try to read in between the lines. The Court while
exercising its jurisdiction under Section 482 of the CrPC or
Article 226 of the Constitution need not restrict itself only to the
stage of a case but is empowered to take into account the overall
circumstances leading to the initiation/registration of the case
as well as the materials collected in the course of investigation.
Take for instance the case on hand. Multiple FIRs have been
registered over a period of time. It is in the background of such
circumstances the registration of multiple FIRs assumes
importance, thereby attracting the issue of wreaking vengeance
out of private or personal grudge as alleged."
Finally in paragraph 34 the Hon'ble Supreme Court concludes as
under:-
"34. The learned Additional Advocate General appearing for
the State vehemently submitted that considering the gross
criminal antecedents of the appellants before us, the criminal
proceedings may not be quashed. The learned Additional
Advocate General appearing for the State in her written
submissions has furnished details in regard to the
antecedents of the appellants. A bare look at the chart may
give an impression that the appellants are history sheeters
and hardened criminals. However, when it comes to quashing
of the FIR or criminal proceedings, the criminal antecedents
of the accused cannot be the sole consideration to decline to
quash the criminal proceedings. An accused has a legitimate
right to say before the Court that howsoever bad his
antecedents may be, still if the FIR fails to disclose
commission of any offence or his case falls within one of the
parameters as laid down by this Court in the case of Bhajan
Lal (supra), then the Court should not decline to quash the
criminal case only on the ground that the accused is a history
sheeter. Initiation of prosecution has adverse and harsh
consequences for the persons named as accused. In
Directorate of Revenue and another v. Mohammed Nisar
Holia, (2008) 2 SCC 370, this Court explicitly recognises the
right to not to be disturbed without sufficient grounds as one
of the underlying mandates of Article 21 of the Constitution.
Thus, the requirement and need to balance the law
enforcement power and protection of citizens from injustice
and harassment must be maintained. It goes without saying
that the State owes a duty to ensure that no crime goes
unpunished but at the same time it also owes a duty to
ensure that none of its subjects are unnecessarily harassed."
18. Relying on the decision of the Hon'ble Supreme Court it is
submitted by Dr. Kaulthawal that under the facts and circumstances of
the case the FIR cannot stand. The basic ingredient of the offence under
which the subject case is instituted, has not been established prima facie
to maintain investigation of the case. The case was instituted for wreaking
vengeance against the petitioners. This is apparent from the seizure list
prepared by the Investigating Officer on search of the office of Bonanza at
Mumbai. Along with other documents police seized three numbers of
blank letter heads and official seal of the company. The petitioners
apprehend that the blank letter heads and official seal would be used for
preparation of some evidence against the petitioners.
19. Under such circumstances, Dr. Kaulthawal has prayed for quashing
of the FIR instituted against the petitioners vide Narendrapur P.S Case
No.573 of 2022 dated 28th May, 2022.
20. Mr. Sandipan Ganguly, learned Senior Counsel and Special Public
Prosecutor on behalf of the State of West Bengal has submitted a memo of
evidence showing the materials collected against the petitioners of CRR
3629 of 2022 and submits at the outset that an FIR containing the
information was given to the police officer of the cognizable offence
committed and reducing the same in writing is required by Section 154
Cr.P.C. In other words his information report is the report relating to
commission of cognizable offence given to the police and recorded under
Section 154 of the Cr.P.C. Section 154(1) mandates the police officer-in-
charge of a police station to register FIR, however he receives information
relating to the commission of a cognizable offence. He is not vested with
the discretion whether to register or not to register a case. After
registration of the case the police officer shall proceed to investigate into
the case and the process of investigation contemplates the following steps
to be carried out:
i) Proceeding to the spot.
ii) Ascertainment of facts and circumstances of the case.
iii) Discovery and arrest of the suspect.
iv) Collection of evidence relating to commission of the
offence which may consist of -
a) The examination of various persons (including
accused) and the reduction of statement into
writing, if the officer thinks fit.
b) The search of place and seizure of things considered
necessary for the investigation to be produced at the
trial.
v) Formation of the opinion as to whether on the material
collected there is a case, to place the accused before a
Magistrate for trial and if so, to take necessary steps for
the same by filing charge-sheet under Section 173 of
the Cr.P.C.
21. If at any stage the defacto complainant retracts from his initial
statement made in the complaint, credibility of the defacto complainant
may be called in question. But if the investigation reveals credible
materials against the accused persons, such investigation cannot be
throttled applying Section 482 of the Cr.P.C.
22. Mr. Ganguly submits that the learned Counsel on behalf of the
petitioners mainly made submission in course of his argument, that after
institution of Narendrapur Police Station Case No.573 of 2022, the
investigating officer and some other police officers allegedly demanded a
sum of Rs.10 crores as bribe and assured them that if the said money is
paid in hawala, they would be relieve from the further investigation of
Narendrapur P.S Case No.573/2022 and the consequent trial of the same.
23. In this regard Mr. Ganguly submits that the petitioners have
already lodged a complaint against the police officer. The said complaint
has been transferred to CBI for investigation and if the CBI finds material
against the accused persons, they will face trail. For such, the instant
case cannot be quashed in investigation up to this stage and reveals
materials in support of the allegation made against the petitioners.
24. Till date, during investigation, the investigating officer examined six
witnesses. It is disclosed from the materials in memorandum of evidence
that Arunava Adhikary petitioner of CRR 2886/2022 recites that his
family resides in Flat No.3A at Sunny Valley, Block 5, 484 Uttarpurba
Fartabad within P.S Narendrapur. Initially on 28th May, 2022 he made a
statement before the police in writing that his address, e-mail ID and
password was hacked by some unknown person and the said address has
been wrongly used for forging certain documents with the Registrar of
Companies as the business address of Bonanza Fashion Merchant Pvt.
Ltd. It is on record that just after four days of filing the FIR he retracted
his statement and made a statement before the investigating officer who
recorded and videographed his statement, that, he permitted the Directors
of Bonanza to use the address of his flat as their business address on the
request of his friend Gourav Sehgal. Mr. Ganguly submits that Arunava
Adhikary is not the so called victim of the case. The victim is one Surojit
Roy Chwodhury whose name transpires during the investigation. The said
Surojit Roy Chowdhury is the owner of the flat in question where Arunava
Adhikary resides as a tenant. It is submitted by Mr. Ganguly that a
consent letter purportedly issued by Surojit Roy Chowdhury was forged
by the accused persons and it was used with the Registrar of Companies
(ROC) for recording the business address of Bonanza.
25. Mr. Ganguly further submits that there is no physical existence of
the company at its registered address. Mr. Ganguly further submits that
it is revealed during investigation that the Directors of Bonanza and their
accountant have also manufactured fake documents regarding general
body meeting of the company, allegedly conducted at the registered office
and filed the same with the governing authorities to deceive the ROC in
ROC Form 22. The geo location of company is shown to be located in
Sunny Valley at Lisbon, USA by the Directors. The capital of the company
was enhanced by leaps and bounds from Rs. 1 crore to Rs, 46 lakh and
31 thousand. There are various financial irregularities and it prima facie
is established that Bonanza is a shell company which is used a tool to
siphon out money obtained by its Directors by way of some criminal
activities or irregularities. It is also submitted by Mr. Ganguly that the
petitioner No.2 Jitendra Navlani is not assisting the investigating agency
for which the investigating authority is not in a position to unearth
further evidence against them and the company.
26. Mr. Ganguly submits that the petitioner No.2 of CRR 3629 of 2022
made some allegations against Rajarshi Banerjee, inspector of CID and
immediately he has been removed from the investigation of the case. At
this stage the question that is required to be adjudicated is to whether on
purported misconduct of a police officer investigation of a case having
wide financial ramification should be closed. During investigation it is
ascertained from the ROC that No Objection Certificate for using the
address of the residential flat of Arunava Adhikary was allegedly issued by
Surojit Roy Chowdhuri. Police interrogated Surojit Roy Chowdhuri and he
denied that he had issued certificate in favour of the petitioner and
original documents have not been recovered from Navlani. Therefore,
custodial investigation is absolutely necessary.
27. Mr. Ganguly also submits that Section 156 of the Cr.P.C empowers
a police officer to investigate any cognizable offence and Section 157
prescribed a procedure for investigation under Section 157(1) Cr.P.C. It
reads thus:-
"157 procedure for investigation-
1. If, from information received or otherwise, an officer in
charge of a police station has reason to suspect the
commission of an offence which he is empowered under
section 156 to investigate, he shall forthwith send a report
of the same to a Magistrate empowered to take cognizance
of such offence upon a police report and shall proceed in
person, or shall depute one of his subordinate officers not
being below such rank as the State Government may, by
general or special order, prescribe in this behalf, to
proceed, to the spot, to investigate the facts and
circumstances of the case, and, if necessary, to take
measures for the discovery and arrest of the offender.
Before an arrest during investigation of an cognizable
offence is provide in Section 157 read with Section 41(1)(a)
Cr.P.C is during investigation the police officer must have
a reason to suspect commission of cognizable offence and
if there is bonfide reason to suspect that any person is
involved in committing cognizable offence, the police
officer is empowered to arrest the offender."
28. Learned Counsel on behalf of the State submits that during
investigation the investigating officer has unearthed various financial
irregularities emerging from the use of false documents, registered a
company in Kolkata, suspiciously enhanced capital of the company
although there is no physical existence of the said company in or around
Kolkata and the petitioners vehemently attempted to evade arrest in
connection with the abovementioned case. Thus, the learned Special
Public Prosecutor submits that at this stage it would be improper to
quash the investigation of the case against the petitioner of CRR 3629 of
2022.
29. In support of his contention Mr. Ganguly refers to a decision of the
Hon'ble Supreme Court in the case of S.M Datta vs. State of Gujarat &
Anr. reported in 2001 (7) SCC 659. In this judgment, the Hon'ble
Supreme Court was pleased to record its concurrence with the
observation made in paragraph 103 of the State of Haryana vs. Bhajan
Lal. In Bhajan Lal it is observed by the Hon'ble Supreme Court:-
"103. We also give a note of caution to the effect that the
power of quashing a criminal proceeding should be exercised
very sparingly and with circumspection and that too in the
rarest of rare cases; that the court will not be justified in
embarking upon an enquiry as to the reliability or
genuineness or otherwise of the allegations made in the FIR
or the complaint and that the extraordinary or inherent
powers do not confer an arbitrary jurisdiction on the court to
act according to its whim or caprice."
30. Relying on the above observation the Hon'ble Supreme Court in S.M
Datta (supra) held that at the time of investigation, the genuineness of the
averments in the FIR cannot be possibly be gone into and the document
shall have to be read as a whole so as to decipher the intent of the maker
thereof. It is neither a document which requires decision with exactitude
nor it is a document which requires mathematical accuracy and nicety,
but the same should be able to communicate or indicate and disclose an
offence broadly and in the event the said test stands satisfied, the
question relating to the quashing of a complaint would not arise.
31. Mr. Ganguly also refers to Niharika Infrastructure Pvt. Ltd. vs.
State of Maharashtra & Ors. reported in 2021 SCC OnLine 315 and
takes me to paragraph 80 of the said judgment. The following point laid
down in Niharika is recorded below:-
"i) Police has the statutory right and duty under the
relevant provisions of the Code of Criminal Procedure
contained in Chapter XIV of the Code to investigate into
a cognizable offence;
ii) Courts would not thwart any investigation into the
cognizable offences;
iii) It is only in cases where no cognizable offence or
offence of any kind is disclosed in the first information
report that the Court will not permit an investigation to
go on;
iv) The power of quashing should be exercised sparingly
with circumspection, as it has been observed, in the
'rarest of rare cases (not to be confused with the
formation in the context of death penalty).
vi) While examining an FIR/complaint, quashing of
which is sought, the court cannot embark upon an
enquiry as to the reliability or genuineness or otherwise
of the allegations made in the FIR/complaint;
vii) Criminal proceedings ought not to be scuttled at
the initial stage;
viii) Quashing of a complaint/FIR should be an
exception rather than an ordinary rule;
ix) Ordinarily, the courts are barred from usurping the
jurisdiction of the police, since the two organs of the
State operate in two specific spheres of activities and one
ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are
complementary, not overlapping;
x) Save in exceptional cases where non-interference
would result in miscarriage of justice, the Court and the
judicial process should not interfere at the stage of
investigation of offences;
xi) Extraordinary and inherent powers of the Court do
not confer an arbitrary jurisdiction on the Court to act
according to its whims or caprice;
xii) The first information report is not an encyclopaedia
which must disclose all facts and details relating to the
offence reported. Therefore, when the investigation by
the police is in progress, the court should not go into the
merits of the allegations in the FIR. Police must be
permitted to complete the investigation. It would be
premature to pronounce the conclusion based on hazy
facts that the complaint/FIR does not deserve to be
investigated or that it amounts to abuse of process of law.
After investigation, if the investigating officer finds that
there is no substance in the application made by the
complainant, the investigating officer may file an
appropriate report/summary before the learned
Magistrate which may be considered by the learned
Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr. P.C. is very wide,
but conferment of wide power requires the court to be
more cautious. It casts an onerous and more diligent duty
on the court;
xiv) However, at the same time, the court, if it thinks
fit, regard being had to the parameters of quashing and
the self-restraint imposed by law, more particularly the
parameters laid down by this Court in the cases of R.P.
Kapur (supra) and Bhajan Lal (supra), has the jurisdiction
to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the
alleged accused and the court when it exercises the power
under Section 482 Cr. P.C., only has to consider whether
the allegations in the FIR disclose commission of a
cognizable offence or not. The court is not required to
consider on merits whether or not the merits of the
allegations make out a cognizable offence and the court
has to permit the investigating agency/police to
investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable
and/or the aforesaid aspects are required to be considered
by the High Court while passing an interim order in a
quashing petition in exercise of powers under Section 482
Cr. P.C. and/or under Article 226 of the Constitution of
India. However, an interim order of stay of investigation
during the pendency of the quashing petition can be
passed with circumspection. Such an interim order
should not require to be passed routinely, casually and/or
mechanically. Normally, when the investigation is in
progress and the facts are hazy and the entire
evidence/material is not before the High Court, the High
Court should restrain itself from passing the interim
order of not to arrest or "no coercive steps to be adopted"
and the accused should be relegated to apply for
anticipatory bail under Section 438 Cr. P.C. before the
competent court. The High Court shall not and as such is
not justified in passing the order of not to arrest and/or
"no coercive steps" either during the investigation or till
the investigation is completed and/or till the final
report/chargesheet is filed under Section 173 Cr. P.C.,
while dismissing/disposing of the quashing petition under
Section 482 Cr. P.C. and/or under Article 226 of the
Constitution of India.
xvii) Even in a case where the High Court is prima facie
of the opinion that an exceptional case is made out for
grant of interim stay of further investigation, after
considering the broad parameters while exercising the
powers under Section 482 Cr. P.C. and/or under Article
226 of the Constitution of India referred to hereinabove,
the High Court has to give brief reasons why such an
interim order is warranted and/or is required to be passed
so that it can demonstrate the application of mind by the
Court and the higher forum can consider what was
weighed with the High Court while passing such an
interim order.
xviii) Whenever an interim order is passed by the High
Court of "no coercive steps to be adopted" within the
aforesaid parameters, the High Court must clarify what
does it mean by "no coercive steps to be adopted" as the
term "no coercive steps to be adopted" can be said to be
too vague and/or broad which can be misunderstood
and/or misapplied."
On the same point Mr. Ganguly also refers to a decision in State of
Karnataka & Anr. vs. Pastor P. Raju reported in (2006) 6 SCC
728 and Union of India & Ors. vs. B.R Bajaj & Ors. reported in
(1994) 2 SCC 277.
32. Learned Advocate on behalf of Arunava Adhikary, petitioner of CRR
2886 of 2022, submits that from the facts and circumstances disclosed,
somebody, either Bonanza and its Directors or the police authority in CID,
W.B are acting with malice. The petitioner has been made conduit in such
malicious act. From the submission made by the learned Special Public
Prosecutor, no allegation of cheating, forgery, using false document and
genuine creation of false documents as valuable security etc. have not
been attributed to Arunava Adhikary. However from the entire conspectus
of the case it is at least established that police authority was considering
relentlessly, to rope in the Directors of Bonanza even before the
institution of the Narendrapur case. They first wanted to tie the tagged
Bonanza with the recovery of money at some place within Raniganj police
station. When their attempts failed, the office-in-charge of Raniganj police
station obtained a search warrant from the learned Chief Judicial
Magistrate, Asansol. On the basis of said search warrant Flat No.3A of
Sunny Valley was searched, though recorded business address of
Bonanza was at Flat No.1A, Sunny Valley. From the possession of
Arunava Adhikary his mobile phone, sim card, one laptop and two
external hard disks were seized by the police. Arunava was made to file a
complaint against Bonanza on the basis of which Narendrapur P.S
573/2022 was registered. At the time of search and seizure the team of
police officers said that they were conducting a investigation of money
laundering. However under the Prevention of Money Laundering Act they
are not empowered to investigate any case of money laundering. Search of
a house of innocent persons and seizure of some materials by police are
sufficient to terrorize the petitioner. Therefore he lodged a complaint in
writing immediately within four days. He retracted from his earlier version
made in the complaint and again on 4th August, 2022 he affirmed an
affidavit stating, inter alia, that on the request of his friend Gourav Sehgal
he permitted Bonanza to use his residential address as the business
address of the company. It is submitted by the learned Advocate for
Arunava Adhikary that he has filed the instant criminal revision on the
appreciation that he may be further prosecuted. Therefore, he is required
to be protected from the malicious act.
33. It is also submitted by the learned Advocate for Arunava Adhikary
that search and seizure was made in connection with Raniganj P.S GD
Entry No.681 dated 11.05.2022. However, till date it has not been
established that the seized money belonged to the petitioner or that he
was transferring the money to some other place for some illegal act.
Therefore no case has been made out against him and his retraction from
the initial complaint made on 28th May, 2022 may be accepted and the
said complaint may be quashed.
34. Having heard the learned Counsels for the parties at length and on
careful perusal of the entire materials on record as well as the decision
cited by the learned Counsels for both the parties, I like to state at the
outset that Bonanza Fashion Merchant Pvt. Ltd was a Calcutta based
company formed by one Sanjib Pal about ten years ago by using
credentials of one Dilip Saha without his knowledge. After DIN number
was received in the name of Dilip Saha, he was removed from directorship
by the said Sanjib Pal and allegedly disclosed that he used to make such
companies and sell them on payment of Rs. 7,000/-. Presently the
petitioners are Directors of the company. It is within the knowledge of
Sanjib Pal that the Directors of the said company have been using the
same for the purpose of cheating. In his statement recorded under Section
164 of the Cr.P.C before the learned Magistrate the said Sanjib Pal did not
make any allegation against the directors/petitioners of CRR 3629 of
2022. It is ascertained from his statement under Section 164 of the Cr.P.C
the said company was formed in the year 2009. Apart from Sanjib Pal, the
Investigating Officer examined one Surojit Roy Chowdhuri who is the
owner of Flat No.1A, Sunny Valley at 484 Uttarpurba Fartabad within P.S
Narendrapur. Arunava Adhikary stays in the said flat as a tenant on
monthly rent of Rs.14,000/- which he has been depositing in the bank
account of Surojit Roy Chowdhuri.
35. From the documents collected from the office of ROC by the
investigating officer of this case, it is revealed that Jitendra and Bhumika
Navlani purchased Bonanza sometime in 2012/2013. Their names are
recorded in the ROC as Directors since 27th September, 2013. They also
filed their annual return and balance-sheet ledger on 8th March, 2022.
Indisputably, there is no physical existence of the company.
36. Now, fulcrum of this case is the creation of a letter purportedly
signed by Surojit Ray Chowdhuri, who is the owner of Flat No.1A, Sunny
Valley permitting the petitioners No.1 and 2 to use residential address of
Arunva Adhikary as the business address of Bonanza in Kolkata. The
investigating agency during investigation for one year and four months
could not ascertain the name of the person who manufactured the said
letter. On the contrary, it is found from the statement of Arunava
Adhikary that on the request of Gourav Seghal, he permitted Bonanza to
use his residential address as the business address of Bonanza. Thus, it
is not clear till date as to who handed over the No Objection Certificate to
the Directors of Bonanza for using the address of Arunava Adhikary as
the business address of the company. Arunava Adhikary is the bonafide
tenant of Flat No.1A. It is found from his statement dated 2nd June, 2022
and affidavit dated 4th August, 2022 that he on the request of Gourav
Sehgal permitted the Director of Bonanza to use his residential address as
the business address of the said company. He claimed that his statement
was videographed by the investigating officer. However, no videograph is
produced by the prosecution at the time of hearing of this case. It is
needless to say that in order to prove an allegation of cheating, it is
obligatory for investigating agency to produce evidence to the effect that a
person was deceived fraudulently or dishonestly; secondly, such
deception was to induce a person to deliver any property to any person, or
thirdly, to consent that any person shall retain any property, or fourthly,
intentionally induce that person so deceived to do or omit to do anything
which he would not do or omit if he were not so deceived to cause damage
or harm to that person in body, mind, reputation or property. In the
instant case there is absolutely no evidence that Arunva Adhikary who
permitted the petitioners to use his residential address as the business
address of their company was deceived and by such deception the
accused persons fraudulently or dishonestly induced Arunava Adhikary to
give consent to use his residential address as the business address of the
company.
37. The investigating agency has failed to collect any evidence under
Section 417/419/420 of the IPC.
38. In order to submit police report under Section 173 of the Cr.P.C
under Section 465/467/468/471 of the IPC, it is absolutely necessary for
the investigating officer to collect evidence that the accused persons made
false documents, viz., the NOC allegedly signed by one Surojit Roy
Chowhdhuri, owner of Flat No.1A, Sunny Valley. In this regard, this Court
likes to record the following paragraph from the Law of Crimes by Ratan
Lal and Dhiraj Lal, 25th Edition at page No.2310:-
"To constitute the offence of forgery the simple making of
'false documents' is sufficient. What amounts to the making
of 'false document' is explained in Section 464. The person
who makes a 'false document' commits forgery. A person who
is not the writer of a forged document cannot be charged with
committing the substantive offence of forgery. If he has
caused such 'false document' to be made he will be guilty of
abetment. A charge of forgery cannot lie against a person who
is not the writer of the forged document or who does not sign
the forged note. Thus the mere forging of body writing in any
cheque belonging to other does not by itself make it available
for being used for the purpose of cheating any one. The
prosecution also has to establish that the signatures thereon
had been made by the accused himself".
Only upon such evidence coupled with the three
circumstances mentioned in Section 464 of the IPC can it be
specified that a person is said to make a false statement, if he-
i) Dishonestly of fraudulently makes, signs, seals or
executes a document or part of a document or
makes any mark denoting the execution of a
document; and
ii) Does the above with the intention of causing it to
be believed that such document or part of
document was made signed, sealed or executed;
iii) By or by the authority of a person by whom or by
whose authority it was so made, signed, sealed or
executed, or
iv) At the time which he knows that it was not made,
signed, sealed or executed.
39. In the instant case, the investigation reveals that Arunava Adhikary
consented to use his residential address as the residential address of the
company. He also gave a letter and electricity bills for submission in the
office of ROC, to his friend Gourav Sehgal and the petitioners/accused
persons got the said letter and electricity bill of Flat No.1A from his friend
Gourav Sehgal. Thus, if at all forgery is committed, and the forged
document is used as genuine in the office of ROC, it is not done by the
petitioners or that it was not within the knowledge of the petitioners that
the said NOC was forged. It was either made by Arunava Adhikary or by
some other person. The investigating agency has failed to collect any
evidence in this regard. From the memo of evidence it is ascertained that
according to the investigating agency, there are certain suspicious
circumstances about the formation of Bonaza Fashion Merchants Pvt Ltd.
in Kolkata. The suspicious circumstance are as follows:-
i) It is suspected that all these highly suspicious
irregularities are committed by the Directors of the
company to conceal some clandestine activity and that
may be even a threat to a state/or endanger public at
large and that needs to be probed thoroughly by
investigating agency.
ii) The location of this fake company is in West Bengal.
The Directors are from Mumbai. West Bengal being a
State with international border has been chosen to run
this fake company since 2013 and there must be some
reason behind it that needs to be probed thoroughly. At
this stage we cannot rule out the involvement of this
company in human trafficking/Narco trafficking or any
other anti national activity. Therefore, there is a need to
investigate all the entries of transaction and do audit
trial of the source accounts from which funds are
flowing in and flowing out and find the actual source of
fund, beneficiaries and purpose to rule out anything.
iii) It is pertinent to mention that "geo location" of the
company which depicted at ROC portal is from America
whereas the location of company is in Kolkata. It is
required to be investigated for what purpose the fake
location is used. It is also required to be investigated
from where the huge transaction bank account and
balance sheet of the company of the accused is credited
out of what purpose could be used.
iv) The huge amount which is transferred through
company may be used for anti national activity, drug,
smuggling activity and human traffic, addiction which
is required to be investigated.
v) It is a proven fact that Bonanza Fashion Merchants Pvt.
Ltd is a fake company, in spite of the fake entity, the
accused person succeeded to get loan of Rs.45 crores
from India Bull Commercial Credit Limited a NBFC
company in the name of the said company.
40. All these so called suspicious circumstances appearing in the memo
of evidence do not hold good because of the fact that the conspectus of
investigation in the instant case is as to whether the accused persons
forged a NOC and used the said forged document as genuine with ROC to
falsely record their business address in Kolkata. The investigating agency
has failed to collect any evidence till date to the effect that the accused
persons made the false document or they caused the false document to be
made by some other person. The occupier of the flat that is Arunava
Adhikary stated that he permitted the accused persons to use the address
of his flat as the business address of Bonanza. It is the case of accused
persons that Bonanza Fashion Merchant Pvt. Ltd. principally runs its
business from Mumbai. For the purpose of purchasing the said company,
an address was required to be given in the Kolkata. So the accused
persons requested their childhood friend Gourav Sehgal to collect a
suitable address to be shown as business of Bonanza for the time being in
Kolkata. Gourav Sehgal gave the residential address of Arunava Adhikary
and his consent was given to the accused persons accordingly to use the
said address.
41. The investigating agency did not find it necessary to investigate as
to whether the petitioners are running the company 'Bonanza' at Mumbai
or not.
42. In Bhajan Lal it is held by the Hon'ble Supreme Court that where
the allegations made in the FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent person can ever reach a just
conclusion, and that there is no sufficient ground for proceeding against
the accused and where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge, the FIR and consequent
investigation should be quashed.
43. In the instant case the animosity of the investigating agency is clear
when the accused persons were attempted to be tagged with recovery of
some alleged tainted money on 11th May, 2022 at Ballavpur within P.S
Raniganj. When the said attempt failed, Arunava Adhikary was brought in
to file a complaint against the accused persons. At the risk of repetition, it
is recorded that the defacto complainant retracted from his version made
in the complaint. The investigating agency suspected that the said
company may be involved in interstate and international racket of human
trafficking, narcotics and other schedule offences under the IPC. However
this is not the scope of investigation of this case. The investigation is
limited to unearth the maker of the No Objection Certificate in respect of
Flat No.1A, Sunny Valley which was used by the accused persons. The
investigating agency till date has failed to collect any evidence and the
attempt of the police authority to tag the accused persons in a criminal
case can be held to be into order to wreck vengeance.
44. In view of the above discussion this Court is of the considered
opinion that the FIR and further investigation in connection with
Narendrapur P.S Case No.573 of 2022 under Sections
417/419/420/120B/465/467/468/471 is liable to be quashed.
45. Accordingly the revisional applications are allowed on contest. The
FIR of Narendrapur P.S Case No.573 of 2022 under Sections
417/419/420/120B/465/467/468/471 and consequent investigation are
quashed.
46. With the disposal of the revisions, connected applications are also
treated to be disposed of.
(Bibek Chaudhuri, J)
