Ashish Dasgupta vs State of H.P. and Others

Kuldip Singh, J.—This is a petition u/s 482 Cr.P.C. read with Article 227 of the Constitution of India for setting aside the order, dated 3.10.2007 passed by the learned Judicial Magistrate, 1st Class, Kasauli in Criminal Case No. 93/2 of 2007 and order, dated 20.6.2008 passed by the learned Additional Sessions Judge, Solan in Revision Petition No. 15-S/10 of 2007 and for quashing of proceedings pending before the learned Judicial Magistrate, 1st Class under Sections 420, 467, 468, 471, 474 and 120B IPC.

The facts, in brief, as per the petitioner, are that an FIR No. 143, dated 4.12.2000 under Sections 420, 467, 468, 471, 474 and 120B IPC has been registered against the petitioner and proforma respondent No. 2 at Police Station, Parwanoo, District Solan on the complaint of respondent No. 3. The allegations are that the petitioner had forged share certificate, dated 30.8.1986 and thereby got 1000 equity shares transferred exclusively in his own name thereby deprived the complainant of his legal right in the said shares. According to the complainant, the said shares were jointly owned by him with the petitioner.

On completion of investigation, report u/s 173 Cr.P.C. was filed in the court of learned Judicial Magistrate, 1st Class, Kasauli. The petitioner was summoned. The petitioner submitted before the learned Magistrate that on the basis of material on record and order of the Company Law Board, dated 31.1.2000, no case is made out for framing of charge against him. The petitioner had filed annual returns from 30.12.1986 to 30.9.1996 before the learned Magistrate. However, the learned Magistrate rejected the submissions of the petitioner and ordered framing of charge against the petitioner on 3.10.2007. The petitioner filed revision against the order, dated 3.10.2007, but that has also been dismissed by the learned Additional Sessions Judge, Solan, on 20.6.2008.

The petitioner has filed the present petition for setting aside the orders, dated 3.10.2007 and 20.6.2008 and for quashing of proceedings pending before the learned Judicial Magistrate, 1st Class, Kasauli.

I have heard Mr. Raman Sethi, learned Counsel for the petitioner, learned Advocate General for respondent No. 1 and Mr. Dibender Ghosh, learned Counsel for proforma respondent No. 2. I have also gone through the record.

It has been submitted on behalf of the petitioner that the petitioner had filed several documents, such as annual returns from 30.12.1986 to 30.9.1996 and Company Law Board, order dated 31.1.2000 in the court of learned Judicial Magistrate. These documents were before the learned Magistrate and submissions were made on the basis of these documents before the learned Magistrate that no case is made out for framing of charge against the petitioner. But, these documents have not been considered by the learned Magistrate. It has been submitted that before learned Additional Sessions Judge also submissions were made for consideration of said documents, but the learned Additional Sessions Judge also did not consider said documents. It has been submitted that in view of material on record, the proceedings in Criminal Case No. 93/2 of 2007 may be quashed. The learned Counsel for the petitioner has relied upon Rukmini Narvekar v. Vijaya Satardekar and Ors. (2009) 1 SCC (Cri) 721. The learned Advocate General has supported the impugned orders and has submitted that no case is made out for quashing of proceedings.

The written submissions, dated 8.8.2007 of petitioner are available on the file of learned Magistrate. The petitioner has filed many documents before learned Magistrate. The learned Magistrate on 3.10.2007 has ordered for framing of charge. The learned Additional Sessions Judge in the order, dated 20.6.2008 has noticed the contention of the petitioner that the matter had been settled by the Company Law Board, but documents filed by the petitioner, which are on the file of learned Magistrate, were not considered by the learned Magistrate or learned Additional Sessions Judge and in case, those documents are considered, then no case is made out against the petitioner for framing of charge.

In State of Orissa Vs. Debendra Nath Padhi, it has been held that no provision in Cr.P.C. grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial. It has also been held that the expression "hearing the submissions of the accused" cannot mean opportunity to file material to be granted to the accused thereby changing the settled law. At the stage of framing of charge, hearing the submissions of the accused has to be confined to the material produced by the police.

In Rukmini Narvekar (Supra), it has been held that there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the court at the time of framing of the charges or taking cognizance. In the judgment, it has been further held that there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such materials as are indicated in Section 227 Cr.P.C. can be taken into consideration by the learned Magistrate at that stage. However, in a proceeding taken therefrom u/s 482 Cr.P.C. the court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained.

The learned Counsel for the petitioner at the time of hearing has referred to order, dated 31.1.2000 of Company Law Board and annual returns from 30.12.1986 to 30.9.1996 of M/s. Parwanoo Enterprises Pvt. Ltd. The learned Counsel for the petitioner has referred to para 21 of the order, dated 31.1.2000, wherein the Company Law Board has noticed the allegations like siphoning off the funds, tampering with the records and also allegations relating to the affairs of M/s. Sirmour Sudberg Auto Ltd. In para 22 of the order, shareholding pattern from 1986 to 1995 and annual returns made upto 30.9.1996 have been noticed. The learned Counsel has referred to para 28 of order dated 31.1.2000, wherein the Company Law Board has held that in the year 1986 Ashish Dasgupta acquired 2000 shares in his individual capacity. The learned Counsel for the petitioner has submitted that order, dated 31.1.2000 of Company Law Board clinches the issue in favour of the petitioner.

In the FIR, the allegations are that in September 1997, the petitioner in order to cheat the complainant and to deprive him of his legal right of share forged share certificate, dated 30.8.1986, showing that 1000 shares, which were held jointly by the complainant with the petitioner, were exclusively in the name of the petitioner. It has also been alleged that the petitioner has also forged the endorsement on the back of the share certificate No. 20, dated 30.8.1986. V. Mathews in connivance with Ashish Dasgupta in order to cheat the complainant and to deprive him of his share in 1000 shares jointly held by the complainant and the petitioner, forged the share certificate exclusively in favour of the petitioner by forging various records of the Company i.e. minute book, share transfer register and attendance register of the Company. The said share certificate has also been used as genuine thereby taking benefit from the same. The petitioner with dishonest intention and in connivance with V. Mathews hatched conspiracy and got prepared forged share certificate and fraudulently and dishonestly used the same as genuine having reasons to believe the same to be forged.

The complainant in the FIR has referred to many documents. I am purposely not commenting on the merits of the case so that it may not affect any party, suffice to say, at this stage it is not possible to hold that entire allegations of cheating, forgery, fraud etc., made in the FIR are answered by the Company Law Board in favour of the petitioner. It cannot be said that there is no material for framing the charge. The scope of petition u/s 482 Cr.P.C. read with Article 227 of the Constitution of India is well known. There is no jurisdictional error in the impugned orders. The petitioner is relying on documents, which he has filed in the court of Judicial Magistrate. He can make full use of these documents during trial. Therefore, there is no merit in the petition, which is liable to be dismissed.

In view of the above discussion, the petition is dismissed. The parties through their counsel are directed to appear before the learned Judicial Magistrate, 1st Class, Kasauli, District Solan on 4.10.2010. The learned Magistrate is directed to expedite the trial and decide the case preferably within six months starting from 4.10.2010.

The pending application(s), if any also stand disposed of.