SURESH NIHICHALANI Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This is the first bail application filed by the applicants under Sec. 438 of the Code of Criminal Procedure, 1973, for grant of anticipatory bail, apprehending their arrest, in connection with complaint case No. 2470/2022, registered at Police Station- New Rajendra Nagar, Raipur District Raipur (CG) for the offence punishable under Ss. 420, 409 read with Sec. 34 of the IPC.

(2.) Case of the prosecution, in brief, is that complainant Kishore Kundnani filed a complaint before Judicial Magistrate First Class Raipur under Sec. 156(3) CrPC on 20/4/2022 alleging that in November 2011, his elder brother formed a company known as M/s Fasika Multitrade and Infra Pvt. Ltd. His brother has taken franchise of US POLO ASSN trademark Garments for five years from 20/6/2013 and carried out the said business in Shop No. G-30 at Magneto Mall, Raipur. The applicants have also incorporated another company in the name of M/s. Hardik Enterprises and in the said company total 1 lakhs shares are there, 75507 shares were allotted to his elder brother, 20,000/- shares were allotted to the applicant No.1 and 4500 shares were allotted to applicant No.2. It is contended that the complainant was one of the Directors in the company but because of some personal difficulties, he resigned from the Directorship of company then the applicant No.1 took his signature on the stamp of Rs.50.00 and two blanks papers for sending approval for accepting his resignation at Gawalior ROC but instead of sending his application at Gwalior ROC, they prepared forged agreement, illegally misappropriated the funds and transferred the stocks and assets of Rs.81,95,595.00 to Hardik Enterprises thus committed criminal breach of trust. The complainant has sent various notices to the applicants to deposit the amount but they have not returned. Thus the victim filed a written report before Police Station Telibanndha. However, no steps have been taken against them thereafter complaint under Sec. 156(3) CrPC was also filed before Judicial Magistrate First Class, Raipur under Ss. 420, 409 read with Sec. 34 IPC.

(3.) Learned counsel for the applicant would submit that the applicants are innocent and they have been falsely implicated in the case and they have not committed any offence. He would further submit that that learned Magistrate has wrongly taken cognizance of the complaint and framed the charge under Sec. 409 IPC where the ingredients of Sec. 409 of IPC are missing in this complaint. He would further submit that in the said proceeding the complainant has never made any allegations of forged agreement which clearly demonstrate that present case is a pure civil dispute which has been given shape of criminal offence. He would further submit that other civil remedies are available with the complainant but to harass the applicants, he filed a complaint case against the applicants. He would further submit that the elder brother of the complainant lodged the FIR against the applicants on the same allegation bearing FIR No. 381/2019 against which WPCR No. 712/2019 was filed before this Court wherein interim relief was granted to the applicants on 26/8/2019 and thereafter the matter was compromised between the parties. He would further submit that after detailed inquiry the police has closed the case on 28/1/2018, therefore, allegations are baseless and without any substance and the accused have not utilized Cash Credit limit for their personal business and infact they have not misappropriated the CC limit. He would further submit that as per the resolution dtd. 2/4/2012 Khusiram Kundani has already resigned from the post of Directorship and has inducted his elder brother Kishor Kundani in his place and on 12/10/2015 the complainant himself had written a letter to the Branch Manager Canara Bank Raipur wherein he has nothing to do with the company and has already resigned from the company. He would further submit that the credit facility and the properties were availed by the company were mortgaged with the bank which was registered in the name of the applicants. He would further submit that the applicants filed the document which shows that Rs.59.00 lacs were transferred by Hardik Enterprises to Fresica Multitrade Pvt. Ltd. Company and only Rs.14.00 lac rupees were refunded to Hardik enterprises and still 45 lac rupees are outstanding against the Freshica. Multitrade Pvt and would pray for giving benefit of anticipatory bail to the applicants.