SRMB SRIJAN LTD. Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The present revisional application has been preferred by SRMB Srijan Limited (hereinafter referred to as the "accused company/petitioner") challenging the order dtd. 8/5/2018 passed by the learned Chief Judicial Magistrate, Alipore in C.G.R. Case No. 1344 of 2016, arising out of Ballygunge Police Station case no. 42 of 2016 dtd. 23/3/2016 under Sec. 465/467/468/471 /114 of the Indian Penal Code, wherein the learned Magistrate was pleased to allow the application under Sec. 173(8) of the Code of Criminal Procedure/Narazi Petition filed at the instance of Great Eastern Energy Corporation Limited (hereinafter referred to as the 'complainant company').

(2.) The genesis of the case relates to an application under Sec. 156(3) of the Code of Criminal Procedure filed at the instance of the complainant company being case no. Sl. No. 40/16 dtd. 11/3/2016 wherein the prayer for police investigation of the complainant company was allowed by the learned CJM, Alipore and pursuant to which Ballygunge Police Station Case no. 42 dtd. 23/3/2016 was registered for investigation under Sec. 465/467/468/471/114 of the Indian Penal Code.

(3.) The allegations made in the application under Sec. 156(3) of the Code of Criminal Procedure were to the effect that the complainant company was engaged in the business of CBM (Coal Bed Methane) gas exploration and distribution at various places including Asansol, Raniganj and Durgapur for which the complainant company signed a production sharing contract with the Ministry of Petroleum and Natural Gas, Government of India. The accused company is one of the customer of the complainant company which is engaged in the business of manufacture and sale of mild steel materials. The accused company operated its manufacturing units at Durgapur, West Bengal. Pursuant to discussion and negotiations between the representatives of the accused company (being represented by Mr. Nikunj Beriwala and Mr. Nikhil Goyal) with the complainant company (represented by Mr. S. Suriyanarayanan) and after the representation of the accused company expressed their interest for using CBM Gas in the steel plants situated at Durgapur, an agreement for sale and contract was entered on May 11, 2011. The said agreement was duly signed by Mr. S. Suriyanarayanan (Chief Financial Officer) in presence of Mr. Monik Parmar [Assistant General Manager (Marketing)] and Mr. Sridhar Vishwanath (Assistant Manager) on behalf of the complainant company and Mr. Ashish Beriwala (Director) in presence of Mr. Rajib Ghosh (G.M. Project) and Mr. Nikhil Goyal (Project Coordinator) on behalf of the accused company. From time to time the said agreement was amended which would be reflected in the addendum and was subsequently executed by the complainant company and the accused company. It has been contended that any change to the agreement were counter signed by both the parties and there was unilateral change made in page 5 clause 5.2 of the said agreement by the accused company, thereby reducing the number of days from 78 to 75 per quarter and which was not approved by the complainant company nor did it contain the signature and/or initial of the authorized signatory on behalf of the complainant company. The accused company intended to reduce number of days from 78 to 75 per quarter and which was not approved by the complainant company. The fact that such change did not have the approval of the complainant company is abundantly clear from the reply dated February 13, 2012 of the complainant company to the letter issued by the accused company regarding the second addendum to the said agreement. As the differential amount was negligible in the context of the entire business turnover between the parties such error was not immediately detected. However, as soon as the complainant company under cover of letter dated July 14, 2014, brought the same to the notice of the accused persons and raised bill for the differential Minimum Guaranteed Offtake (hereinafter referred to as 'MGO'), a dispute arose by and between the parties on or about April, 2014 and the accused persons with an oblique and malafide intention withdrew from their obligation to make payment of MGO as provided in the agreement and started raising false and frivolous disputes and one of such frivolous dispute related to their failure to renew the Bank Guarantee for a sum of Rs.93,18,728.00 which was due to expire on May 31, 2014. The accused company immediately filed a civil suit in the Hon'ble High Court at Calcutta wherein direction was passed to approach the proper forum. It was during this period when such Civil Suit was pending that the deficit billing came to the notice of the complainant and appropriate steps were taken according to bills raised for dues in MGO. The complainant company thereafter initiated arbitration proceeding against the accused company for claiming their dues and damages under the agreement and the accused company by way of filing of additional documents produced the purported agreement dated May 11, 2011 which prima facie appeared to be same as the said agreement with the approval of the learned Counsel of the parties was admitted in the arbitration proceedings. Such agreement was forwarded to the complainant company and received by the complainant company at their office within the jurisdiction of Ballygunge police station. Mr. Monik Parmar, the Assistant General Manager (marketing) of the complainant company brought to the notice, that the agreement in original form which is in their possession, contained in the bunch of disclosure of additional documents contained the purported initial of Mr. S. Suriyanarayanan and it was noticed by him that the original agreement in the possession of the complainant company did not have any counter signature by Mr. S. Suriyanarayanan in clause 5.2 of the original agreement. The complainant company alleges that prior to production of the document (agreement) which was filed by the accused company in their counter statement, in all the legal proceedings prior to such disclosure of said (agreement) initial of Mr. S. Suriyanarayanan was absent on page 5 clause 5.2. After internal enquiries made by the complainant company the agreement containing 100 rupees stamp paper numbered as K184879 and the same agreement printed on a stamp paper of Rs.100.00 numbered as K184878 which were in their possession were sent to a forensic expert for opinion, by their report dated February 5, 2016. Dr. V.C. Misra and Mr. Manas Mishra being the forensic handwriting and fingerprint expert confirmed that the said signature on page 5 of clause 5.2 of the alleged agreement was not the signature of Mr. S. Suriyanarayanan. Such forensic report with the opinion of the expert left no doubt whatsoever that the accused company being aided and abetted by their men, agents and associates committed the offence of forgery with the intent to commit fraud and used the forged document i.e. the agreement as genuine which is valuable security for the purpose of cheating. The accused company and its men and agents by forging the agreement and reducing the number of days from 78 to 75 per quarter, committed forgery with the purpose of causing wrongful loss to the tune of Rs.61,07,922.28 only for the period ranging from 11/5/2011 to 14/7/2014. The same is in addition to a huge amount of claim which was outstanding. The accused company are having in their custody the original agreement in which the forgery was committed and certain other original documents which were required to be recovered and are to be seized for proper and impartial investigation and which if not done, the complainant company apprehended the same would be otherwise misused and affect the claim of the complainant company. The complainant company lodged the incident by way of written complaint to Ballygunge police Station and also to the Deputy Commissioner of Police, South East Division, however, police authorities did not take any steps, accordingly it was prayed before the Learned CJM, Alipore for directing the investigating agency to treat the complaint as FIR and direct the Officer-in-charge, Ballygunge Police Station to investigate relating to the commission of offence as complained of.