Madhya Pradesh High Court
Amit Kumar Kuklod vs The State Of Madhya Pradesh on 13 February, 2025
Author: Vishal Dhagat
Bench: Vishal Dhagat
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ON THE 13th OF FEBRUARY, 2025
WRIT PETITION No. 22979 of 2024
AMIT KUMAR KUKLOD AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Devmani Bansal - Advocate, Shri Siddharth Shukla - Advocate, Shri
Vaibhav Pratap Chand - Advocate and Shri L.N. Soni - Advocate (through VC),
for petitioners.
Shri Madhur Shukla - Advocate, for respondents/EOW.
Shri R.P. Tiwari - Advocate, for intervener (through VC).
ORDER
Petitioners have filed this petition under Article 226 of the
Constitution of India making a prayer for quashing of FIR registered at
Crime No. 27/2024, dated 22.07.2024, at Police Station EOW, Bhopal
for committing offences under Sections 420, 467, 468, 471 and 120-B of
Indian Penal Code.
2. Petitioner No.1 is Chief Executive Officer and petitioners No. 2
to 4 are Directors of M/s Jayshri Gayatri Food Products Pvt. Ltd. M/s
Jayshri Gayatri Food Products Pvt. Ltd. is a company registered under
the Companies Act, 2013 and is engaged in business of dairy products.
Company was set up in year 2013 and production commenced in year
2014. Factory is situated at Village Pipariya, District Sehore (Bhopal).
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During period 2020 to May, 2023, ex-employee of company namely
Sunil Tripathi, who was looking after the affairs of the company, in
connivance of Wamik Siddiqui, Hitesh Punjabi, Baljeet Sharma, Jitendra
Rathore, Sanjay Verma, Abhishek Tripathi and others defrauded the
company. It is submitted that dairy products of company were exported
to Hitesh Punjabi and Baljeet Singh under Scheme of 1+1 and 2+1,
thereby causing huge loss of about 15 crores to the company. Stocks of
company were also misappropriated. Said accused persons established
various firms namely Siyajit Export, Perfect Food Solution, Moms and
Bucket and Sugam Foods and transacted with Baljeet Sharma and Hitesh
Punjabi. Said accused persons are based in Kuwait and Dubai. Not only
stocks of company were embezzled but records was also manipulated.
Petitioner company lodged FIR against accused persons at Police Station
Habibganj, District Bhopal, which is registered under Sections 420, 406,
120-B, 409, 467, 468 and 471 of IPC. After lodging of FIR, accused
persons absconded. Later on, Sunil Tripathi was arrested, who gave a
memorandum under Section 27 of Evidence Act. It was stated by him
that various lab reports required for purpose of export of goods were
forged and fabricated by one Jitendra Rathore in collusion and
connivance with accused Sunil Tripathi. Directors of the company had
no knowledge regarding it. After completion of investigation, charge-
sheet was filed and Criminal Case No. 1416/2024 was registered.
3. It is submitted that one Bhagwan Singh filed a complaint on
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21.04.2024 at Economic Offences Wing, Bhopal against petitioners.
Complaint was registered as Complaint No. 64/2024. Allegations were
made that there were large scale adulteration of dairy products, theft of
GST and import duty. FIR was registered against the petitioners at Crime
No. 27/2024 at Police Station EOW, Bhopal under Sections 420, 120-B,
467, 468 and 471 of IPC. A raid was conducted at factory premises on
31.07.2024. Despite requests, petitioners were not provided with copy of
FIR, but from newspaper and media reports, petitioners learnt that
primary allegation in FIR was in respect of lab reports, which are
required for export of dairy products from India. Said reports spanned
from period 2019 to 2024.
4 . Counsel for petitioners submitted that petitioners have falsely
been implicated in the case as a counter blast of FIR lodged by the
company against ex-employee Sunil Tripathi and also against importers.
Petitioners made allegation of preparation of forged lab reports against
accused Sunil Tripathi and said lab reports are subject matter of
investigation in Crime No. 492/2023, registered at Police Station
Habibganj, District Bhopal. Said lab reports are also subject matter of
investigation in Crime No. 27/2024, which is lodged against petitioners
at EOW Bhopal. It is submitted that FIR prima facie does not constitute
any offence against petitioners. FIR is actuated by malafides and is
abuse of process of law. Accused persons in Crime No. 492/2023 have
sponsored FIR against petitioners as a counter blast to arrive at
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settlements. Statement of accused Sunil Tripathi itself shows that
Directors and management of the company were not aware of forging of
lab reports. EOW committed an error of fact and law in lodging FIR on
basis of same subject matter, which is under consideration in Crime No.
492/2023. There is no complaint made by Exports Inspection Agency
(EIA). EOW for reasons best known to them did not upload the copy of
FIR nor provided a copy to petitioners. FIR is lodged on 22.07.2024
under Indian Penal Code. It ought to have been lodged under Bhartiya
Nyay Sanhita, 2023, as provisions of IPC are no longer attracted in the
case. FIR is not saved under repeal and saving clause of B.N.S.S., 2023.
Respondents had violated directions of Apex Court in Case of Youth Bar
Association of India vs Union of India, reported in (2016) 9 SCC 473, as
FIR was not published within 24 hours of its registration on police
website. Proceedings of Economic Offences Wing is tainted with
malafides and FIR was lodged with ulterior motive of wrecking
vengeance due to private and personal grudge of one Sunil Tripathi.
5. Counsel appearing for petitioners also submitted that there is
specific evidence collected against Sunil Tripathi in Crime No. 492/2023
that Sunil Tripathi obtained health certificate from E.I.A., Indore and had
prepared forged lab reports through mobile/electronic gazettes.
Therefore, offence under Section 66 of IT Act was also added. Sunil
Tripathi was technologist of the company and authorized by E.I.A. He
used the signed certificates for export book. Role of Sanjay Verma was
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also stated by him. Further allegation is also made that Export Executive
Sanjay Verma and Graphics Designer Jitendra Rathore on different dates
got prepared lab reports from AES Lab, Noida (UP). It is submitted that
complainant of Crime No. 27/2024 namely Bhagwan Singh Rajput, who
claims to be an R.T.I. Activist, is a blackmailer and is spreading false
information against company. Complainant has admitted his connection
with co-accused Sunil Tripathi and Hitesh Punjabi and acknowledged the
fact that documents were supplied to him by said accused persons. He
also posted information of adulterated ghee being supplied to Tirupati
Balaji Temple, Andhra Pradesh. Though, no product was supplied to
temple by petitioners. It is, in fact, co-accused namely Sunil Tripathi and
Hitesh Punjabi, who had supplied information to said person to grind
their own axe. He is only a tool in hands of co-accused persons. In
charge-sheet of EOW, AES stated that they were made aware of alleged
fake test reports by one Bhagwan Singh Rajput. Bhagwan Singh Rajput
was well aware of fake reports prior to 17.06.2023 and he raised the
issue for the first time on 21.04.2024, after a long delay. How
complainant learnt about said reports has not been investigated by EOW.
Complainant is abusing the process of law and maliciously prosecuting
the petitioners on behalf of accused persons in Crime No. 492/2023. It
has nowhere been stated by investigating agency, how petitioners are
involved in preparation of test reports and certifications pertaining to
requirement of Export Inspection Agency. Counsel for petitioners placed
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reliance on judgment passed by Apex Court in case of Sheila Sebastian
vs R. Jawaharaj and another, reported in (2018) 7 SCC 581; (Para 20 and
25).
6. Counsel for petitioners also submitted that vicarious liability of
the Directors cannot be imputed automatically. No specific act has been
attributed to Directors or any other person allegedly in control and
management of the company. To fix vicarious liability under Penal
Code, role of petitioners has to be specifically mentioned in FIR or in
charge-sheet. Directors can be made an accused alongwith company, if
there is sufficient evidence of their active role coupled with criminal
intent. No specific active role of petitioners is ascribed nor any criminal
intention is alleged against petitioners. Petitioners were made accused
being Directors of company. Reliance is placed on judgment passed by
Apex Court in case of Shivkumar Jatia vs State of NCT of Delhi ,
reported in (2019) 17 SCC 193. In said case, it was held that
Director/person in charge of affairs of company can be prosecuted when
company is an accused. Company acts through its officers, Directors etc.
and individuals. There is no vicarious liability unless statute specifically
provides for it. Company has not been arraigned as party and Directors
of company have been arrayed as accused without any specific
allegations regarding their role. Principally allegations are against
company. Therefore, no proceedings can be initiated against Directors
alone. Reliance is place on judgment passed by Apex Court in case of
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Sharad Kumar Sanghi vs Sangita Rane, reported in (2015) 12 SCC 781.
Reliance is also placed upon judgment of Apex Court in case of T.T.
Antony vs State of Kerala, reported in (2001) 6 SCC 181, wherein it has
been held that second FIR in respect of an offence or different offences
committed in the course of prosecution is impermissible and violates
Article 21 of the Constitution of India. In these circumstances, prayer is
made for quashing of FIR registered at Police Station EOW, Bhopal
under Sections 420, 467, 468, 471 and 120-B of IPC or to issue
appropriate writ of mandamus directing respondents not to take further
investigation in FIR No. 27/2024.
7. Counsel appearing for respondents/EOW submitted that bare
perusal of FIR would reveal that information discloses commission of
cognizable offence. Forged laboratory reports were produced before
Export Inspection Agency for wrongful financial gains. Laboratory
stated that claimed reports have never been issued by it and same were
issued in favour of ITC Limited. Lab reports were forged and fabricated.
There was evasion of income tax and GST and fake bills were prepared
for showing increased turn over. It is incorrect to say that contents of
FIR at Crime No. 492/2023 and contents of FIR at Crime No. 27/2024
are same. Complainant and accused in both FIRs are different. No
question arises that subsequent FIR, which is lodged against petitioners,
is a counter blast. It is submitted that lab reports of AES is mentioned in
first FIR i.e Crime No. 492/2023, but lab reports of IRCLASS System
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and Solutions Pvt. Ltd., National Commodities Management Services
Limited, Gurgaon, AES Laboratories (P) Ltd., Noida are involved in
second FIR i.e. Crime No. 27/2024. About 59 reports are said to have
been forged by petitioners for getting financial benefit. There is specific
evidence given by IRCLASS, ISSPL Labs, AES Laboratories that lab
reports were not issued by them. Genuineness and correctness of
allegation cannot be seen at this stage. In these circumstances, writ
petition may be dismissed.
8. Counsel appearing for intervener submitted that petitioners are
guilty of committing cognizable offence. Intervener has made the
complaint in public interest. Petitioners had forged lab reports and EOW
has rightly registered FIR against them and proceeding with
investigation in the matter.
9. Heard the counsel for the parties.
10. Police Station EOW has registered FIR at Crime No. 27/2024
on 22.07.2024 under Sections 420, 467, 468, 471 and 120-B of IPC.
Period of offence stretches between 01.01.2019 to 23.04.2024. FIR is
lodged against four persons namely Kishan Modi, Rajendra Modi, Payal
Modi and Amit Dhanraj Kukloud on basis of application given by one
Bhagwan Singh Rajput dated 21.04.2024. It was alleged that Directors of
company have prepared forged lab reports regarding quality of dairy
products. Verification was done from 5 concerned laboratories i.e. (i)
CEG Test House and Research Center Pvt. Ltd., Jaipur, Rajasthan, (ii)
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IRCLASS Systems and Solutions Pvt. Ltd. Jaipur, Rajasthan, (iii) FARE
LABS, Gurugram, Haryana (iv) National Commodities Management
Services Limited, Gurgaon, Haryana and (v) AES Laboratories (P) Ltd.,
Noida (UP). Lab reports dated 28.09.2021 and 08.11.2021 were not
found to be issued by AES Laboratories (P) Ltd. Similarly, 8 reports of
IRCLASS Systems and Solutions Pvt. Ltd. were not issued by it.
Further, on verification it was found that some reports numbering about
9 were not issued by FARE LABS Pvt. Ltd. Such reports were forged.
Hitesh Punjabi had lodged a complaint that products supplied were
substandard to Collector, Bhopal on 09.08.2023. False bills were used to
show increased turn over of the company. Further company has supplied
adulterated dairy products to various cooperative societies after buying
pure milk from them. Allegation is also made that forged certificate of
veterinary doctor was used for sending food products to New Zealand
and US. False radio analytical reports were also used for exports.
Allegation of criminal conspiracy to earn wrongful gains was made
against petitioners. Specific role is assigned to Amit Dhanraj Kuklod
(petitioner No.1) in preparing forged companies. Company was alleged
to be beneficiary by making wrongful gains. Company was not
impleaded as accused in FIR. FIR has not been lodged against company
but only against Directors. There is no specific role assigned to Directors
of the company. Counsel appearing for respondents is unable to inform
Court that where it has been alleged that forged lab reports were
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prepared at the instance of the Directors of the company or which person
was instrumental in getting said reports prepared. No direct or indirect
evidence of conspiracy is pointed out against the petitioners in FIR or in
subsequent investigation.
11. Apex Court in case of Shiv Kumar Jatia (supra) has held that
Director/person in charge of affairs of company can be prosecuted when
company is an accused. There is no vicarious liability unless statute
specifically provides for. It is obligatory on part of complainant to make
requisite allegations which would attract the provisions constituting
vicarious liability. If there is no statutory provision for vicarious liability,
in such condition, Director or Managing Director or Chairman of
company can be made accused alongwith company only if there is
sufficient evidence to prove his active role coupled with criminal intent.
In absence of company being made an accused in the FIR, no vicarious
liability can be fastened upon petitioners, who are Directors of the
company, when there is no specific evidence or role assigned to them in
forging of laboratory reports.
12. Similarly, Apex Court in case of Sheila Sebestian (supra) held
that charge of forgery cannot be imposed or sustained against a person,
who is not maker of false document in question. There is no allegation
that petitioners are makers of document or under which statute they can
be held vicariously liable for preparing forged reports. Relevant
paragraphs are reproduced as under :
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"20. The key to unfold the present dispute lies in understanding
Explanation 2 as given in Section 464 of IPC. As Collin J., puts it
precisely in Dickins v. Gill, (1896) 2 QB 310, a case dealing with
the possession and making of fictitious stamp wherein he stated
that "to make", in itself involves conscious act on the part of the
maker. Therefore, an offence of forgery cannot lie against a person
who has not created it or signed it.
* * * *
25. Keeping in view the strict interpretation of penal statute i.e.,
referring to rule of interpretation wherein natural inferences are
preferred, we observe that a charge of forgery cannot be imposed
on a person who is not the maker of the same. As held in plethora
of cases, making of a document is different than causing it to be
made. As Explanation 2 to Section 464 further clarifies that, for
constituting an offence under Section 464 it is imperative that a
false document is made and the accused person is the maker of the
same, otherwise the accused person is not liable for the offence of
forgery."
13. Abuse of process of law cannot be ruled out in this case, as
petitioners have lodged an FIR at Crime No. 492/2023 against Sunil
Tripathi, Wamik Siddiqui, Hitesh Punjabi, Baljeet Sharma, Jitendra
Rathore and others. In said case, petitioners are witnesses. In said FIR
also, allegations were made regarding forged lab reports, which were
used for exporting dairy products under Scheme of 1+1 and 2+1 for
swindling huge amount of money of company. Allegations were also
made regarding stocks and tampering of records of the company. In
Crime No. 27/2024 period offence is said to have been mentioned from
01.01.2019 to 23.04.2024 and in first FIR i.e. Crime No. 492/2023,
period of offence is said to have been between 22.06.2020 to
22.05.2023, so both FIR overlaps over same transactions by which false
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or forged lab reports were prepared for export. There has to be one
investigation in respect of transactions which took place in the company.
EOW ought to have forwarded complaint to Police Station Habibganj,
District Bhopal to include it in part of investigation, if any evidence is
found against the petitioners, and could not have registered separate FIR,
as has been held by Apex Court if case of T.T. Antony (supra) , which is
quoted as under :
"20. From the above discussion it follows that under the scheme
of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and
173 of Cr.P.C. only the earliest or the first information in regard to
the commission of a cognizable offence satisfies the requirements
of Section 154 Cr.P.C. Thus there can be no second F.I.R. and
consequently there can be no fresh investigation on receipt of every
subsequent information in respect of the same cognizable offence
or the same occurrence or incident giving rise to one or more
cognizable offences. On receipt of information about a cognizable
offence or an incident giving rise to a cognizable offence or
offences and on entering the F.I.R. in the station house diary, the
officer in charge of a Police Station has to investigate not merely
the cognizable offence reported in the FIR but also other connected
offences found to have been committed in the course of the same
transaction or the same occurrence and file one or more reports as
provided in Section 173 of the Cr.P.C.
* * * *
27. A just balance between the fundamental rights of the citizens
under Articles 19 and 21 of the Constitution and the expansive
power of the police to investigate a cognizable offence has to be
struck by the Court. ....... However, the sweeping power of
investigation does not warrant subjecting a citizen each time to
fresh investigation by the police in respect of the same incident,
giving rise to one or more cognizable offences, consequent upon
filing of successive FIRs whether before or after filing the final
report under Section 173(2) Cr.P.C. It would clearly be beyond the
purview of Sections 154 and 156 Cr.P.C. nay, a case of abuse of
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the statutory power of investigation in a given case. In our view a
case of fresh investigation based on the second or successive FIRs,
not being a counter case, filed in connection with the same or
connected cognizable offence alleged to have been committed in
the course of the same transaction and in respect of which pursuant
to the first FIR either investigation is underway or final report
under Section 173(2) has been forwarded to the Magistrate, may be
a fit case for exercise of power under Section 482 Cr.P.C. or under
Article 226/227 of the Constitution."
14. Considering totality of facts that facts mentioned in FIR No.
27/2024, which spreads from 01.01.2019 to 23.04.2024 are also part of
transactions in FIR No. 492/2023, which spanned from 22.06.2020 to
22.05.2023, no specific and active role or malafide intention ascribed to
the Directors of the company, company has not been impleaded as
accused in the case. It has specifically been mentioned by petitioners that
accused of first FIR i.e. Crime No.492/2023 has supplied information to
complainant of second FIR and said information was sent by
complainant to laboratories regarding forge reports which has been
referred to in the charge-sheet and has not been denied by intervenor or
by prosecution in their reply which points out involvement of accused
persons of Crime No.492/2023 in sponsoring FIR against petitioners,
which is abuse of process of law.
15. Apex Court in case of Amitbhai Anilchandra Shah Vs. CBI &
Another, (2013) 6 SCC 348 held that principle that second FIR in case of
offences relating to same transaction is impermissible as laid down in
T.T. Anthony's case reported in (2001) 6 SCC 181 will not cover
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situation where second FIR is in relation to cross case and offence
discloses second FIR is not part of first FIR nor they can be said to
form part of same transaction.
1 6 . In present case second FIR is not a cross case. During
investigation forged company laboratories reports were discovered.
Similar complaint was made in first FIR, therefore, what has been
unearth in investigation is additional evidence in respect of other co-
accused persons and second FIR is in continuation of same offence and
not counter claim, therefore, same is liable to be interfered with by this
Court.
17. In these circumstances, petition filed by petitioners is allowed
and FIR registered against petitioners at Crime No.27/2024 at Police
Station EOW, Bhopal for offences punishable under Sections 420, 467,
468, 471 and 120-B of IPC is quashed. Police Station, Habigbanj,
District Bhopal is at liberty to do further investigation in same crime
number and file supplementary charge-sheet, if required.
18. With the aforesaid observation, petition is disposed off.
(VISHAL DHAGAT)
JUDGE
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