Sudhir Satnaliwala vs The State Of West Bengal & Anr
2024 Latest Caselaw 4621 Cal

Calcutta High Court (Appellete Side)

Sudhir Satnaliwala vs The State Of West Bengal & Anr on 10 September, 2024

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                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL REVISIONAL JURISDICTION
                         APPELLATE SIDE
                        CRR 1095 of 2016
                        Sudhir Satnaliwala
                                Vs.
                  The State of West Bengal & Anr.


For the petitioner                    :Mr. Ayan Bhattacharjee, Adv.
                                      Mr. M.S. Tiwari Adv.
                                      Ms. Shweta Poddar, Adv.
                                      Mr. Debarka Guha, Adv.
                                      Mr. Shounak Mondal, Adv.


For the State                        :Mr. Binay Panda, Adv.
                                      Ms. Puspita Saha, Adv.


For the opposite party no.2          :Mr. Sanjay Banerjee, Adv.
                                      Ms. Samriddhi Majumdar, Adv.

Heard On :                           :20.07.2023,17.08.2023,
                                      30.08.2023, 13.09.2023,
                                      04.10.2023, 28.11.2023,
                                      13.12.2023, 17.01.2024,
                                      29.01.2024, 19.03.2024,
                                      24.04.2024, 26.04.2024,
                                      25.06.2024, 09.07.2024,
                                      05.08.2024, 07.08.2024
                                     19.08.2024

Judgment On :                        :10.09.2024
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Bibhas Ranjan De, J. :

1. The petitioner has sought quashing of the proceedings of

West Port Police Station Case No. 141 of 2013 dated

16.07.2013 under Sections 120B/406/420/467/468/471 of

the Indian Penal Code (for short IPC) presently pending before

the Court of Ld. Chief Judicial Magistrate, Alipore, South 24

Parganas through this revision application.

Brief facts:-

2. A brief gist of the allegations made by the opposite party no. 2

herein through the written complaint which gave rise to the

West Port Police Station Case No. 141 of 2013 is to the effect

that opposite party no. 2 herein is a Director of a Company

under the name and style of Aggarwal Steel Complex Limited

duly incorporated under the Companies Act, 1956. In the year

1999 the said company was referred to the Board of Industrial

and Financial Reconstruction (for short BIFR) and was

subsequently declared as a Sick Industrial Unit under the

provisions of Sick Industrial Companies Act vide an order

dated 29.07.1999. However, in the year 2004 the present

petitioner approached the opposite party no. 2 herein with a

proposal that if he is inducted as a director then he would

infuse fresh funds for proper rehabilitation of the said

company and revive it back from the status of Sick Industrial

Unit. In good faith the opposite party no. 2 herein agreed to

such request of the petitioner. However, soon after the

petitioner upon continuous misrepresentation started to take

entire control of the said company and disposed of all assets of

the said company in violation of the order of the BIFR and

without the knowledge of the opposite party no. 2 herein or the

Board of Directors of the said company. Thereafter, when the

opposite party no. 2 herein started to visit the fixed assets of

the said company viz the Furnace Factory site, the office of the

company at Shakespeare Sarani, the second manufacturing

facility/a Rolling Mill at Paharpur, he to his utter despair

came to know that all those assets were either sold of or

transferred to some 3rd party without any prior intimation

either to the opposite party no. 2 or the Board of Directions of

the said company. Thereby, the opposite party no. 2 alleged

that the petitioner entered into a criminal conspiracy and in

pursuance to that conspiracy, misappropriated the assets of

the said company and thus committed cheating and forgery

totaling to a substantial amount and thereby committed all

the offences alleged.

Arguments Advanced:-

3. Ld. Counsel, Mr. Ayan Bhattacharjee, appearing on behalf of

the petitioner has mainly canvassed his argument on the

following points:-

 The charge sheet filed by the Investigating Officer is a

conclusion of nothing but a faulty investigation as in spite

of providing all material documents against the queries of

the Investigating Officer in response to the notice under

Section 41A of the Code of Criminal Procedure (for short

CrPC) nothing was properly considered by the Investigating

Officer before filing of charge sheet which led to a formation

of opinion without any proper basis. Therefore, impugned

charge sheet is not sustainable in the eye of law.

 On a wholesome perusal of the averments levelled in the

purported FIR and the charge sheet, it would be crystally

clear that the entire issue pertains to a dispute amongst the

directors of a corporate body for which no criminal action

ought to have been imitated as it is trite law that no

criminal proceeding should be allowed to emanate if the

main grievance is related to the affairs of a corporate body.

 In reply to the allegation put forth in the written complaint

by the opposite party no. 2 herein relating to the order of

the BIFR, the opposite party no. 2 has made an intentional

magnum suppression of the fact that this Hon'ble Court in

WPA No. 1229 of 2000 gave a stay order against such order

of the BIFR. Therefore, the very foundation of the

prosecution case is faulty and unclean which makes the

subsequent investigation and charge sheet a fit case for

quashing.

 From a prima facie appreciation of the allegation made in

the written complaint, by no stretch of imagination, it can

be said that the offences alleged are made out against the

petitioner as there is no question of any wrongful gain on

the part of the petitioner. Therefore, such absurd and

inherently improbable allegations cannot be allowed to

linger any further.

 Before parting with, Mr. Bhattacharjee has highlighted the

inexplicable and inordinate delay of 9 years in institution of

the complaint which gave rise to the West Port Police

Station Case No. 141 of 2013 and submitted that there is

no proper explanation so as to why the delay in filing FIR

occurred as the present petitioner was appointed in June

2004 but FIR was only filed in 2013.

4. In support of his contention, Mr. Bhattacharjee has relied on

some material documents and has taken assistance of the

following cases which are as follows:-

 Dinesh Gupta vs. State of Uttar Pradesh & Anr.

reported in 2024 (1) SCALE 532

 A.M. Mohan vs. The State of represented by SHO & Anr.

reported in 2024 (4) SCALE 218

 Zandu Pharmaceutical Works Ltd. & Ors. vs. Mohd.

Sharaful Haque & Anr. reported in (2005) 1 SCC 122

 A.K. Khosla & Ors. vs. T.S. Venkatesan & Anr. reported

in 1992 CRI. L.J. 1448

 M/S Raymond Ltd. vs. M/s HV Doshi & Bros Pvt. Ltd.

reported in (2006) 1 C Cr LR (Cal) 186

 Chanchalpati Das vs. State of West Bengal & Anr.

reported in AIR 2023 SC 2710

 Salib @ Shalu @ Salim vs. State of Uttar Pradesh &

Ors. reported in [2023] 11 S.C.R. 58

5. In opposition to that, Ld. Counsel, Mr. Sanjay Banerjee,

appearing on behalf of the opposite party no. 2 has stated that

the petitioner who was entrusted with the affairs and

properties of the said company for its rehabilitation blatantly

misused his powers and sold the entire landed property of the

company admeasuring 1802.5 decimal and utilized the

proceeds to pay One Time Settlement with the Bank of India

by falsely claiming to have raised such funds from his own

resources. Thereafter, the petitioner clandestinely executed 3

separate registered deeds of conveyance by falsely claiming to

be an authorized signatory of the said company and sold of the

entire property to the 3rd parties and received the sale

consideration in companies owned and controlled either by

petitioner himself or his family members.

 Mr. Banerjee further argued that the petitioner is a habitual

offender and in support of this contention he has annexed a

letter of complaint dated 20.09.2007 addressed to DCP,

Detective Department, Lalbazar by another company

wherein the allegation was to the effect that the petitioner

herein and his wife used forged signature and seal of the

complainant company in the audited balance sheets of the

companies which they have been filing with the office of the

Registrar of Companies, Kolkata for almost a period of 10

years. By producing this document Mr. Banerjee has tried

to make this Court understand the petitioner along with his

family members have had a prior criminal intention to

hatch a conspiracy and defraud the opposite party no. 2

herein from the very inception.

 It has been further contended that the petitioner who was

never an authorized signatory of the company for execution

of any agreement for sale or deed of conveyance in respect

of the properties of the company, has used false documents

to commit criminal breach of trust and make a wrongful

gain causing exorbitant loss to the company.

 Before parting with, Mr. Banerjee has refuted the claim of

Mr. Bhattacharjee that there is inordinate delay in filing FIR

and has submitted that the opposite party no. 2 was kept

in dark by the petitioner for many years and only in the

year 2013 the opposite party no. 2 became aware of

suspicious activities regarding his landed properties and

after making proper enquiry he gradually came to know

about the alleged fraudulent activities and soon after he

filed the complaint which gave rise to the instant

prosecution.

6. Ld. Counsel, Mr. Binay Panda, appearing on behalf of the

State has referred to the case diary and has contended that

there is enough incriminating material collected to constitute

offences alleged against the petitioner.

Findings of the Court:-

7. Before delving into the merit of the case, I think it would be

profitable to analysis the cases relied on behalf of the

petitioner for brevity of discussion:-

 In Dinesh Gupta (supra) the Hon'ble Apex Court held that

a criminal complaint which is filed against the opposite

party despite commercial nature of dispute is nothing but ill

intended act of abuse of power and of legal machinery

which seriously affects the public trust in judicial

functioning.

 In A. M. Mohan (supra) the Hon'ble Apex Court highlighted

the growing tendency in business circles to convert purely

civil disputes into criminal cases on account of a prevalent

impression that civil law remedies are time consuming and

do not adequately protect the interests of lenders/ creditors.

The Hon'ble Apex Court also observed that there is an

impression to the effect that if a person could somehow be

entangled in a criminal prosecution then there is likelihood

of an imminent settlement.

 In Zandu Pharmaceutical Works Ltd. (supra) the Hon'ble

Apex Court observed as follows:-

"13. The factual position as highlighted above clearly goes to show that the complainant had not come to court with clean hands. There was no explanation whatsoever for the inaction between 1995 and 2001. The High Court seems to have been swayed by the fact that the appellants have rejected claim of the complainant on 5-12-2001. It failed to notice that the communication dated 5-12-2001 was in response to the letter of the complainant dated 24-11-2001."

 In the case of A.K. Khosla (supra) the Co-ordinate bench of

this Hon'ble Court laid down that continuation of the

proceeding would be an abuse of process of Court if the

dispute is purely of civil nature and the impugned criminal

proceeding appears to be frivolous, vexatious and malafidely

initiated with the oblique motive of exerting pressure upon

the other party to pay a huge amount of money and make

other concessions for the alleged loss suffered by the

complainant party. For ends of justice such proceeding

should be quashed.

 In M/S Raymond (supra) the Co-ordinate Bench of this

Hon'ble Court remarked that:-

"29. The suppression of material facts in the petition of complaint is a vital and serious matter for which the Court can treat that the complainant came to Court not with clean hands. In this connection the decisions cited by Mr. Mukherjee for the petitioner are pertinent. In Sundar Das Loghaniv. Fardun Rustom Irani (supra) a Division Bench of this Court affirmed the order of discharge by the learned Magistrate in a case in which the learned Magistrate after hearing both sides and examining some documents reached the conclusion that the complainant petitioner had deliberately suppressed several facts in his petition of complaint and that the complaint was a thoroughly dishonest one."

 In Chanchalpati Das (supra) the Hon'ble Supreme Court

held that inordinate delay in filing complaint in itself may

not be a ground for quashing of a criminal complaint,

however unexplained inordinate delay must be taken into

consideration as a very crucial factor.

 In Salib @ Shalu @ Salim (supra) the Hon'ble Apex Court

laid down the following ratio which stands as follows:-

" 26. 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."

8. The Hon'ble Apex Court in various landmark decisions has

made a very clear suggestion that the High Court's while

exercising its power under Section 482 of the CrPC is not

required to conduct a mini trial as this is not the stage

where the prosecution/ investigating agency is required to

prove the charges. The charges are required to be proved

during the trial on the basis of the evidence led by the

prosecution/investigating agency. Therefore, the Hon'ble Apex

Court handed down that if the High Court while exercising

inherent jurisdiction under Section 482 of the CrPC makes an

observation that the charges against the accused are not

proved, by going in detail in the allegations and the material

collected during course of the investigation against the

accused, then they will commit material err in doing so.

9. As at the stage of discharge and /or while exercising the power

under Section 482 of the CrPC, the Court has a very limited

jurisdiction and is only required to consider "whether any

sufficient material is available to proceed further against the

accused for which the accused is required to be tried or not."

In addition to that the Hon'ble Apex Court has further held

that at the initiation of the Criminal Proceedings, whether

the criminal proceedings are malicious or not, is not

required to be considered at the stage of quashing as it is

required to be considered only at the conclusion of the

Trial. The only material requirement which is to be considered

is a prima facie case and the material collected during

investigation, which warrants the accused to be tried.

10. I have gone through the case diary and from there it

appears that a good number of evidence has been collected by

the Police during investigation. Keeping in mind that context,

in no stretch of imagination it can be said that the allegation

made in the complaint is devoid of merits and does not prima

facie constitute the alleged offence. It is too premature a stage,

to focus on the veracity of the prosecution case as it is a

settled proposition of law that the High Court in exercise of

it's jurisdiction under Section 482 of Cr.P.C does not

function either as a Court of appeal or revision, also having

no power to conduct a mini trial.

11. Now coming to the material particulars of the case at

hand it is an admitted position of fact that the petitioner was

inducted as director of the company of the opposite party no.

2. The petitioner was also entrusted by the opposite party no.

2 to take necessary steps for the rehabilitation of the company

by settling secured debt with the Bank. The main contention

of the petitioner is that all the measures that he has taken are

with the sole motive to rescue the company. In support of this

argument Ld. Counsel, Mr. Bhattacharjee has relied on a

bunch of voluminous documents.

12. Whereas the claim of the opposite party no. 2 is that the

petitioner and his co-conspirators have clandestinely sold the

entire land and have collected the sale proceeds in companies

owned and controlled by the petitioner and his family

members. In support of this contention, they have referred to

the register deeds of conveyance. In the light of the principle

laid down by the Hon'ble Apex Court in this regard which has

been duly discussed above clearly puts a bar on the High

Court to go in depth detail of the allegations and the evidence

collected during investigation at this stage.

13. Now coming to the claim of the petitioner regarding in

ordinate delay in filing the FIR by the opposite party no. 2 in

the year 2013, I am not agreeable with Mr. Bhattacharjee that

the cause of action arose in the year 2004 when he was made

the Director because the opposite party no. 2 only started

suspecting some irregularities when he paid a visit to the

properties of the company situated in Srerampore. Therefore,

In my humble view, I do not find that there is irrational delay

in filing FIR which can lead to its quashment.

14. In light of the above principle, I am unable to interfere

with impugned proceeding at this stage by invoking power

under Section 482 of CrPC as all the material contradictions

with regard to the alleged occurrence is a subject matter of

trial and from careful perusal of the available evidence this

Court cannot conclude that the allegations made in the

complaint do not prima facie make out any offence. Nor can it

conclude that the allegations made therein are patently and

inherently improbable which will make the instant revision

application a fit case for quashing as per the exhaustive

guidelines of the Hon'ble Apex Court. And to add to that, in

the present case, the nature of allegation is not in respect to

any commercial dispute between the parties simpliciter.

15. To exercise the inherent power under Section 482 of the

Cr.P.C is not the rule but it is an exception which can be

applied only if it appears to the Court that miscarriage of

justice would be committed if the trial is allowed to proceed

further. This Court is also not oblivious to the settled

proposition of law that this Court cannot function either as a

Court of appeal or revision and this power can only be

exercised to prevent abuse of the process of the Court.

16. In the aforesaid view of the matter, the instant revision

application being no. CRR 1095 of 2016, devoid of merits,

stands dismissed.

17. Interim order, if there be any, stands vacated.

18. Connected applications, if there be any, stand disposed

of accordingly.

19. All parties to this revision application shall act on the

server copy of this order downloaded from the official website

of this Court.

20. Urgent Photostat certified copy of this order, if applied

for, be supplied to the parties upon compliance with all

requisite formalities.

[BIBHAS RANJAN DE, J.]