Appeal
3. A common order[1] passed by the High Court[2] dismissing the petitions filed by the appellants seeking quashing of the summoning order3 has been impugned in the present appeals.
Facts
7. The complainant further alleged that when he asked the accused to return the loan with interest, initially time was sought stating that there is slump in the real estate market and thereafter, the accused started ignoring the complainant. That is when the complainant decided to take legal recourse against the accused. Prayer was made in the police complaint for registration of a case of cheating and forgery against the accused. While filing the complaint, the complainant had given his address as ‘C/o A & A Earth Movers, D-9, Sector-2, Noida Sector-20, Gautam Budh Nagar, U.P.’
8. After investigation, the police found that a case was made out against the accused under Sections 420, 467 and 120-B of the IPC. A charge-sheet was filed on 29.12.2020. Accordingly, the Chief Judicial Magistrate, Gautam Budh Nagar, vide order dated 15.02.2021 took cognizance and issued summons to the accused.
9. The appellants filed petitions under Section 482 of the Cr.P.C. before the High Court seeking quashing of the FIR and the summoning order dated 15.02.2021. The petitions having been dismissed by the composite order passed by the High Court, the same are under challenge in the present appeals.
16. The aforesaid facts clearly establish that no case was made out against the appellants. Further, there is no allegation pertaining to forging of any documents against them. It was a simple business transaction. Arm-twisting method to recover any dues cannot be permitted to be used. In support of the appellants’ arguments, reliance was placed on the judgment of this Court in Randheer Singh v. The State of U.P. & others[3].
Findings
21. We have heard learned counsel for the parties and perused the material on record.
22. On a complaint filed by the respondent no.2, FIR in question was registered on 29.07.2018. The address of the company D.D. Global was mentioned as ‘C/o A & A Earth Movers, D-9, Sector-2, Noida Sector-20, Gautam Budh Nagar, U.P.’ to be the present as well as the permanent address. This is the first misleading statement made by the complainant. From a copy of the resolution passed by the DD Global dated 25.03.2011, it is evident that the registered office of the DD Global is located at F- 1/9, Okhla Industrial Area, Phase-I, New Delhi. Even at the time of hearing, it remained undisputed that DD Global is not carrying on any business at Noida, nor has it rented the place mentioned above. Further, the firm ‘A & A Earth Movers’ whose c/o address has been given is not the sister concern of DD Global.
Complaint signatory’s parentage and address was not mentioned in the complaint
25. Though address of Karan Gambhir who was signatory of the complaint on the basis of FIR in question registered, was mentioned to be of Noida, same as was given in the complaint. However, his residential address was not given. His parentage was also not mentioned. The second person shown in the chargesheet is a supporting witness, Sanjay Gambhir, who has shown his present and permanent address of ‘P.S. Hauz Khas, N-58, Panchsheel Marg, New Delhi’. The same is the position with reference to Tarun Gambhir, who also is claimed to be a supporting witness. All other witnesses were officials who were involved in the investigation of the case.
Summoning order does not show application of mind and no reasons assigned
26. The Chief Judicial Magistrate, Gautam Budh Nagar, vide order dated 15.02.2021 took cognizance thereof and issued summons to the accused. The order shows no application of mind, as no reasons have been assigned. The Magistrate also did not take into consideration the address of the complainant and the accused companies as also the addresses of their Directors. There was complete lack of application of mind while taking cognizance and issuing summons.
Complainant concealed material facts
28. Further, it is apparent that the complainant had concealed material facts which were within his knowledge at the time of filing of complaint. These facts pertained to the complainant’s knowledge of the merger of Gulab Buildtech and Verma Buildtech with BDR, details whereof are noted hereinafter.
New story of forging documents built up in complaint
30. It would be relevant to note that in the application filed for recall of the merger order by the complainant, it was nowhere mentioned that initially the complainant had advanced loan, which was later on converted into debt equity. It only mentioned that the complainant was a shareholder of the transferor company and as a result of merger their percentage of shareholding and value of shares decreased. It was also nowhere pleaded in the application that the shares held by the company were mortgaged to Sushil Gupta by forging the documents. The new story of forging documents was built up in the complaint filed with the police only to give a criminal colour which actually was commercial in nature.
Case is between simple transaction of loan between corporates
32. Most importantly, it needs to be noticed that it was a plain and simple transaction between the corporates. Even as per the complainant’s case, the short-term loan was advanced in the year 2010 for a period of one year. However, when the same was not returned, no steps were taken by the complainant to recover the same until the FIR in question was registered on 29.07.2018 i.e. 8 years & 7 months later.
34. The entire factual matrix and the time lines clearly reflects that the complainant deliberately and unnecessarily has caused substantial delay and had been waiting for opportune moment for initiating false and frivolous litigation.
36. In view of the aforesaid discussion, we find that the FIR in question, if proceeded further, will result in absolute abuse of process of court. It is a clear case of malicious prosecution. Hence, the same is required to be quashed.
38. Before parting with the judgement, we are reminded of the opening remarks. The respondent Karan Gambhir having misused the legal system by lodging false and frivolous complaint with non-disclosure of necessary facts must bear its costs. The registration of FIR at Noida despite having registered offices of companies in question at Delhi shows a wishful forum shopping by the Complainant, casting serious doubts on their bona fides. The Complainant had already sought remedy against amalgamation order before the High Court and the High Court had dismissed the same. However, Complainant chose to again use judicial mechanisms to raise his grievances. A criminal complaint was filed and FIR was registered against appellants despite the commercial nature of dispute. Such ill intended acts of abuse of power and of legal machinery seriously affect the public trust in judicial functioning. Thus, we find ourselves constrained to impose cost on Complainant with a view to curb others from such acts leading to abuse of judicial remedies.
Appeal allowed.
Parties
DINESH GUPTA …Appellant(s) VERSUS THE STATE OF UTTAR PRADESH & ANR. …Respondent(s) – CRIMINAL APPEAL NO(S). 214 OF 2024 (Arising out of S.L.P.(Crl.) No.3343 of 2022) – JANUARY 11, 2024 – 2024 INSC 32
https://main.sci.gov.in/supremecourt/2022/7498/7498_2022_8_1501_49396_Judgement_11-Jan-2024.pdf
Further study
[1] Dated 17.02.2022 in Applications under Section 482 Cr.P.C. No(s).29852 of 2021 & 25990 of 2021
[2] High Court of Judicature at Allahabad
[3] 2021 INSC 440: (2021) 14 SCC 626.
