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2023 DIGILAW 1852 (RAJ)

Jaswant Singh v. State of Rajasthan

2023-09-29

BIRENDRA KUMAR

body2023
JUDGMENT : Mr. Birendra Kumar, J. - The petitioners have sought for quashment of FIR No. 18/2018 registered with Police Station Kushkera, District Alwar for offences under Sections 406, 420, 463, 464, 465, 468, 471, 471A, 120B, 506 and 34 IPC. 2. The challenge is on the ground that no offence is made out for which FIR was registered against the petitioners rather a pure civil dispute has been sought to be given a colour of criminal litigation. 3. Tiruputi Balaji Furnaces Pvt. Ltd. was registered under the Companies Act on 29.12.2006. Some of the petitioners and others were its initial Directors. In course of time, more Directors and shareholders were inducted in the company including the informant of the case, who is respondent No.2 herein. Some differences arose amongst the Directors and to settle the same, a Memorandum of Understanding was signed on 7.10.2017 whereunder the petitioners sold their shares in favour of the new management consisting of Vishal Yadav (informant), Vinay Yadav and Vijay Kumar Yadav. The petitioners who were Directors/Shareholders agreed to disassociate themselves from the Company. One of the terms and conditions of MOU was:- "that the buyers, i.e. (informant and others) will arrange to release personal guarantee and/or personal property mortgaged by seller (petitioners) with CBC, Manesar within 45 working days from the date of this MOU either by pay off entire bank loan and/or producing fresh personal guarantee to the satisfaction of banker to release the guarantee of seller". 4. On non-performance of the aforesaid condition by the informant and others, the petitioners sent a legal notice dated 14.12.2017 to respondent No.2 and others that aforesaid condition has not been complied with and the petitioners were not discharged of their personal property, mortgaged with the Bank within the time which was condition precedent for enforcement of MOU, therefore, the said MOU stands terminated. Thereafter, the petitioners moved before the National Company Law Tribunal on 13.01.2018 in Appeal No. 140/59/ND/18 for redressal of their grievance. 5. Thereafter the impugned FIR was lodged on 18.1.2018 with two mail allegations. The first was that the petitioners did not comply condition No.10 of the MOU as such they had dishonest intention from very inception to cause wrongful loss to the complainant. 5. Thereafter the impugned FIR was lodged on 18.1.2018 with two mail allegations. The first was that the petitioners did not comply condition No.10 of the MOU as such they had dishonest intention from very inception to cause wrongful loss to the complainant. Condition No. 10 was as follows: "That all the dues, tax demands, House tax, duties of excise, VAT/CST, GST, TDS, ESI, PF, Labour Act & Company Act etc., of the said property/company till the period ending as on 07.10.2017 created up to the date of this MOU and/or in future shall be paid and borne only by the old management." It appears that there is hand written correction of the word 'new' with the word 'old'. There was no reason to stipulate that even after signing of the MOU on 7.10.2017 and disassociation with the company by the petitioners they would continue to pay the referred taxes. 6. The second allegation is that it was specifically mentioned in the MOU that after singing off the MOU, the petitioners would not deal with the affairs of the company, however the petitioners had clandestinely kept a cheque of the company bearing No. 000016 which was filled up with amount of Rs. 6,50,000/- and produced before the Bank on 15.11.2017 and money was withdrawn by petitioner Abhishek Yadav. The claim of the petitioners is that the said money was paid against dues of the petitioner-Abhishek and was against payment of loan made by Abhishek Yadav in respect of the company. 7. Mr. Pankaj Gupta, learned counsel for the petitioners contends that the narration of the facts aforesaid would make it abundantly clear that there is disputed fact of performance and non performance of MOU by both the parties. The matter is pending before the competent authority therefore bald allegations have been levelled just to pressurize unduly in the pending dispute between the parties. 8. Mr. Govind Prasad Kaushik, learned counsel for the respondent contends that the FIR discloses commission of cognisable offence hence this court cannot enter into a roving inquiry on the correctness of the allegation in the FIR, moreover investigation of the case is already complete. 9. It is worth to notice that the MOU contains arbitration clause and arbitration proceedings are also pending between the parties. 10. 9. It is worth to notice that the MOU contains arbitration clause and arbitration proceedings are also pending between the parties. 10. The High Court is competent to entertain a petition under Section 482 Cr.P.C to quash the FIR even if a charge sheet is filed during pendency of the petition. Reference may be made to Joseph Salvaraj A. v. State of Gujarat & ors., (2011)7 SCC 59 and Anand Kumar Mohatta & Anr. v. State (NCT of Delh), Department of Home and Anr., (2019) 11 SCC 706 . The law is well settled that merely because of pendency of civil proceedings between the same parties even if it is pending in a higher court, the criminal proceedings should not be quashed if it discloses commission of a cognizable offence. Reference may be made to Kamaladevi Agarwal v. State of west Bengal & ors., (2002) 1 SCC 555 . Thus, the point for consideration remains whether FIR discloses commission of a cognizable offence. 11. To attract the offence of cheating, the fraudulent and dishonest intention must be at the inception of the understanding between the parties. Only for non payment of dues of taxes, dishonest and fraudulent intention cannot be gathered especially when the informant himself was responsible for non release of the personal property of the petitioners which were mortgaged with the Bank and were to be released within 45 days as agreed in the MOU. Moreover, the petitioners have already cancelled the MOU by giving notice to the informant before institution of the FIR for non performance of his part by the informant and on cancellation of MOU, the old managing committee would revive which included the petitioners as well and the liability of the company to pay the taxes would be co-extensive with the petitioners. It is not the prosecution case that any false document was made by the petitioner as defined under Section 464 of the Penal Code, there is no allegation that any cheque was signed by a person impersonating himself as some others or any interpolation was made in any of the referred cheques. Once no case of making of a false document is made out, the offence of forgery as defined under Section 463 IPC and other consequential offences would not attract in the facts and circumstances of the case. 12. Once no case of making of a false document is made out, the offence of forgery as defined under Section 463 IPC and other consequential offences would not attract in the facts and circumstances of the case. 12. Moreover, the attending circumstances referred above makes out a case of frivolous and vexatious criminal proceedings which cannot be allowed to stand. 13. Since the FIR does not disclose commission of any cognizable offence, continuation of criminal proceedings would be an abuse of the process of law, hence the impugned FIR and all subsequent proceedings stand hereby quashed and the instant petition is allowed.