SANJAY KUMAR SINGHANIA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The hearing stems from an application under section 482 Cr. PC filed by the petitioners praying for quashing the proceeding being G. R. Case No. 2799/97 arising out of Hare Street P. S. Case No. 689/97 and for setting aside the order dated 17.03.99 passed by the ld. Chief Metropolitan Magistrate, Calcutta directing investigation in the matter.

(2.) The circumstances leading to the above application are that Spark Dealers (P) Ltd. represented by a Director Prem Lal Jain filed a complaint under section 120B/418/420/465/471 IPC in the Court of ld. Chief Metropolitan Magistrate, Calcutta for treatig it as an FIR under section 156(3) Cr. PC inter alia alleging that after voluntary retirement of Directors Sudhakar Rathi and Mohan Kothari, the management of the company went in the hands of accused No. 1 and one K. K. Dhandhania. At the instance of accused No. 1, the company took part in an auction held under the order of this Court for sale of two units of M/s. Usha Automobiles and Engineering Company Ltd. (in liquidation) and bid an offer for purchase of the said company at Rs. 3,61,50,000/-. The offer was accepted on payment of Rs. 10,00,000/- as part earnest money. As accused No. 1 did not deposit 20% of the earnest money, the Official Liquidator filed an application before the Division Bench of this Court for cancellation of sale and for forfeiture of the deposit of Rs. 10,00,000/-. Against order of this Court, the company filed SLP before the Apex Court, and the Hon'ble Apex Court directed the company to deposit Rs. 63,00,000/- within one week. G. S. Jain, elder brother of the petitioner and his friend R. K. Shethi being induced by accused No. 1, his father accused No. 2 and other accused persons, agreed to part with the said amount on certain terms. On the resignation of K. K. Dhandhania from the Board of Directors, the controlling power went in favour of G. S. Jain and R. K. Shethi and the entire share capital was transferred in their favour. The petitioner and his younger brother Kamlesh Jain were also appointed as Directors of the company on 10.05.97. G. S. Jain was unanimously authorized in the Board meeting on 25.06.97 to deal with the company matters relating to the Official Liquidator and that of the said company in liquidation. The company paid the rest of the bid money by 10.07.97. On 11.07.97 the sale of company in liquidation was confirmed by this Court. The previous Advocate-on-Record who was appointed by accused No. 1 tried to get an order for handing over the said company to its nominee or nominees without any such resolution of the Board which was foiled by this Court. As per order of this Court, the Official Liquidator handed over possession of Cossipore Unit and Sahibabad Unit to G. S. Jain on 14.07.97. On 28.07.97 the said Advocate-on-Record made a prayer before this Court for a direction on Official Liquidator to execute necessary conveyance or conveyances in respect of all immovable properties of the company in liquidation in favour of the company and its nominee or nominees against the original terms and conditions of order of sale of the company in liquidation and obtained an order, and the Official Liquidator though present in Court did not oppose to the insertion of nominee clause. Accused Nos. 1 & 2 forged the signature of G S. Jain and sent a letter to the Official Liquidator on 29.07.97 showing assignment of Sahibabad Unit in favour of M/s. Ontime Cargo & Courier (P) Ltd. run by accused No. 5. On being confronted, the Advocate-on-Record pleaded that he acted as per instructions of accused No. 1. On hearing that the Official Liquidator had left for Delhi with accused Nos. 2 & 3 on 31.07.97 to get conveyance executed in favour of Ontime Cargo and Courier (P) Ltd. at Dadri Registry Office, G. S. Jain contacted the Official Liquidator over phone, informed him about the forgery and requested him not to proceed with the process of execution of conveyance. Though the Official Liquidator assured that he would wait at the hotel upto 11.00 a.m. and requested G. S. Jain to reach Delhi on 01.08.97, on reaching there on 01.08.97 by morning flight G. S. Jain came to learn that accused Nos. 2 & 3 had already left with Official Liquidator before 8.00 a.m. Accused Nos. 2, 3 & 5 got the registration of the assignment fraudulently done by Official Liquidator on that very date. On an application filed by the company disclosing about the forgery this Court passed an order of status quo and also for not giving effect to the conveyance of assignment executed by Official Liquidator at Dadri on 01.08.97. The police did not take any action on the FIR lodged by G. S. Jain at Hare Street P. S.

(3.) On 17.03.99 ld. Chief Metropolitan Magistrate, Calcutta passed an order directing the Investigating Officer being respondent No. 2 to continue with the investigation and to submit report. It has been contended by the petitioners that the said order is without jurisdiction as the proceeding in Hare Street P. S. Case No. 689/97 (G. R. Case No. 2799/97) is an abuse of the process of the Court since such order could not be passed as respondent No. 3 had already submitted final report under section 173 Cr. PC and that the allegations made in the complaint is substantially the verbatim reproduction of the company proceeding arising out of the petition filed by G. S. Jain and R. K. Shethi on 05.08.97.