[1.0] Present Special Criminal Application under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the petitioners herein – original accused to quash and set aside the impugned FIR being C.R. No.I1/2009 registered with Kandla Police Station, lodged by respondent No.2 herein – original complainant, for the offences punishable under Sections 420, 467, 468, 471 and 114 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”). [2.0] Respondent No.2 herein – original complainant has lodged the impugned FIR with Kandla Police Station against the petitioners and others for the offences punishable under Sections 420, 467, 468, 471 and 114 of the IPC alleging interalia that one M/s. Jai Shree Balaji Fats & Oils Pvt. Ltd. purchased 1000 MT of RBD (Palmolian edible grade) oil from the petitioners – M/s. Siddhi Vinayak Industries Pvt. Ltd. on High Seas Sale basis and the complainant purchased 500 MT of the aforesaid quantity from the said M/s. Jai Shree Balaji Fats & Oils Pvt. Ltd. It is further alleged in the FIR that the same was stored at Kandla in the ACC Company's tanker No.34. It is further alleged that before any delivery could be taken by the complainant, he came to know that out of the aforesaid quantity of 500 MTs, the petitioners – M/s. Siddhi Vinayak Industries Pvt. Ltd. took the delivery of 213 Mts of Rs.76,92,495/. Therefore, M/s. Shree Balaji National Carriers and Transport by getting the forged and concocted letterpad of the complainant Company i.e. M/s. Swastik International and using the same as true, the petitioners took the delivery of 213 MTs of the oil. It is further alleged that immediately having come to know about the same, the complainant had informed the said M/s. Shree Balaji National Carriers and Transport to stop the delivery of remaining quantity of oil as no such authority is given to anybody. It is alleged in the said FIR that petitioners – M/s. Siddhi Vinayak Industries Ltd.
have taken the delivery of the said Palmolian oil by creating forged delivery order as well as by creating and concocting the letterpad of the complainant Company – M/s. Swastik International. It is further alleged in the said FIR that on further inquiry it is come to the notice that the delivery of 213 MTs have been taken by creating the forged letterpad by the petitioners and/or at the instance of the petitioners. Therefore, it is alleged that the petitioners and others have committed offences punishable under Sections 420, 467, 468, 471 and 114 of the IPC. Being aggrieved and dissatisfied with the impugned FIR, the petitioners have preferred the present Special Criminal Application under Article 226 of the Constitution of India read with Section 482 of the CrPC.
[3.0] Shri R.S. Sanjanwala, learned Senior Advocate has appeared with Shri Nikhil Kariel, learned advocate appearing on behalf of the petitioners. It is submitted that as such the petitioners have not committed any offence as alleged. It is submitted that the allegations leveled in the FIR are absolutely absurd and unbelievable. It is submitted that if one takes the allegations in the complaint at its face value, it is not believable the purpose for which M/s. Siddhi Vinayak Industries Pvt. Ltd. would commit such an action. It is submitted that M/s. Siddhi Vinayak Industries Pvt. Ltd. was the principal importer of 1500 MT of oil of which 1500 MT of oil to M/s. Jai Shree Balaji Flats & Oils Pvt. Ltd. who is the sister concern of M/s. Siddhi Vinayak Industries Pvt. Ltd.. It is submitted that no prudent person can believe the allegation that the principle importer (M/s. Siddhi Vinayak Industries Pvt. Ltd.), which sells oil to its sister concern and the sister concern in turn sells 500 MTs to third party, would forged the documents in the name of said third party and takes delivery of 213 MT of oil. It is submitted that whole allegation defies logic since M/s. Siddhi Vinayak Industries Pvt. Ltd. or even M/s. Jai Shree Balaji Fats & Oils Pvt. Ltd. would not have given anything out of the said transaction, since the complainant had not paid a single rupee to M/s. Jai Shree Balaji Fats & Oils Pvt. Ltd. or M/s. Siddhi Vinayak Industries Pvt. Ltd. with respect to the said consignment. It is submitted that thus neither M/s. Siddhi Vinayak Industries Pvt. Ltd. nor M/s. Jai Shree Balaji Fats & Oils Pvt. Ltd. would be conferred with any undue advantage by using such fraudulent means. Therefore, it is submitted that allegations in the FIR are absurd, improbable and therefore, said FIR deserves to be quashed and set aside.
[3.1] It is further submitted that as such M/s. Swastik International – original complainant was planning to defraud M/s. Jai Shree Balaji Fats & Oils Pvt. Ltd. from the inception of the transaction itself and, therefore, once having taken delivery of 213.200 MT of oil, they ensured that the cheque of Rs.1 crore gets dishonoured and thereafter they have started leveling allegations against M/s. Siddhi Vinayak Industries Pvt. Ltd. by claiming that M/s. Siddhi Vinayak Industries Pvt. Ltd. had taken delivery of oil. It is submitted that as such no payment has been made by the original complainant even with respect to aforesaid 213.200 MT of oil and as M/s. Swastik International – original complainant has not suffered any loss or injury, the impugned FIR deserves to be quashed and set aside. It is further submitted that even one civil litigation is pending before the High Court at Kolkata praying for a decree of amount equivalent to price of 213 MT of oil delivered to the complainant and for an equivalent amount of damage as well as for appointment of receiver insofar as the remainder of the oil and the whole dispute is now subjudice, the impugned criminal complaint/FIR deserves to be quashed and set aside.
[3.2] It is, therefore, submitted that as the allegations made in the FIR are so absurd, inherently improbable on the basis of which no prudent person can reach a just conclusion that there is sufficient ground for proceeding against the petitioners, relying upon the decision of the Hon'ble Supreme Court in the case of State of Haryana & Ors. v. Bhajan Lal & Ors. reported in 1992(1) Suppl. SCC 335, it is requested to allow the present petition and to quash and set aside the impugned FIR.
[4.0] Petition is opposed by Shri Dipen Desai, learned advocate appearing on behalf of respondent No.2 and affidavitin reply is filed opposing the present petition. It is stated that there are specific allegations and averments in the FIR prima facie disclosing commission of cognizable offences which are further required to be investigated. It is submitted that bare reading of FIR discloses more than a prima facie case against the petitioners and the same also discloses commission of cognizable offences and all necessary ingredients to constitute the offences alleged are borne out from the bare reading of the FIR. It is submitted that it is specifically alleged in the FIR that a forged document / letterpad has been created in the name of M/s. Swastik International and the signature of the complainant as proprietor of M/s. Swastik International is also forged one and on the basis of which delivery of 213 MT of oil has been taken away by the accused persons and others. It is submitted that on preliminary inquiry it has been found that the delivery of 213 MTs of oil was delivered by M/s. Agency & Cargo Care Ltd. to M/s. Jai Shree Balaji Fats & Oils Pvt. Ltd. at the instance of the petitioners. Therefore, it is submitted that infact who took the delivery of 213 MTs of oil by producing the forged letterpad in the name of M/s. Swastik International alleged to have been signed by the complainant and at which place the delivery was given and the goods were unloaded are all questions which are required to be investigated during the course of investigation.
[4.1] So far as the contention on behalf of the petitioners that though the complainant has not made any payment for 213 MTs and still the complaint is filed and therefore, the same is not maintainable is concerned, it is submitted that though the complainant has not received 213 MTs of oil and has not taken away any delivery, complainant would be facing proceedings for recovery of the aforesaid amount and even the proceedings for the offences under Section 138 of the Negotiable Instruments Act, 1881 for dishonour of cheque of Rs.1 crore which was given by way of advance payment, for which the payment was not made having come to know that delivery has been taken away by some other person at the instance of the petitioners.
[4.2] It is further submitted that the entire modus operandi adopted by the accused persons is writ large on the face of record.
It is submitted that by communication dated 26.10.2008 from M/s. Siddhi Vinayak Industries Pvt. Ltd. to M/s. Agency & Cargo Care Ltd. signed by accused No.2, it was informed that they have sold 1000 MTs edible oil to M/s. Swastik International and therefore, kindly deliver the goods to High Seas Buyer and it is submitted that once again on 27.10.2008 they informed M/s. Agency & Cargo Care Ltd. that M/s. Siddhi Vinayak Industries has sold 150 MT of edible oil to M/s. Jai Shree Balaji Fats & Oil Pvt. Ltd. and so far as High Seas buyer is concerned, name of M/s. Swastik International has been shown . It is submitted that in this manner, accused created an impression in the mind of M/s. Agency & Cargo Care Ltd. that M/s. Swastik International is the high seas buyer and immediately on 27.10.2008, they have informed M/s. Agency & Cargo Care Ltd. by forging the letter purporting to have been signed by the complainant as proprietor of M/s. Swastik International and lured M/s. Agency & Cargo Care Ltd. to deliver the consignment. It is submitted that even one another inherent mischief which is writ large on the face of the forged letter dated 27.10.2008 is that there is a reference to two delivery orders and it is stated in the said letter that M/s. Agency & Cargo Care Ltd. is requested to deliver cargo of 250 MTs against their aforesaid D.Os. mentioned in the said communications to M/s. Jai Shree Balaji Fats & Oils Pvt. Ltd. It is submitted that aforesaid two D.Os. were never of M/s. Swastik International. It is submitted that as such the aforesaid D.O. numbers are on the letterpad of M/s. Siddhi Vinayak Industries Pvt. Ltd. duly signed by accused No.1. It is submitted that as such the petitioners accused – M/s. Siddhi Vinayak Industries Pvt. Ltd. have taken the delivery of 213 MTs of oil by producing forged documents more particularly the document dated 27.10.2008 on the letterpad of M/s. Swastik International which contains forged signature of the proprietor of M/s. Swastik International i.e. complainant. It is submitted that aforesaid has been pointed out in the reply to the notice under section 138 of the Negotiable Instruments Act, 1881. Therefore, it is submitted that when there are specific allegations in the FIR of taking the delivery of 213 MTs of oil by producing the forged documents, more particularly, the document dated 27.10.2008 which contains forged signature of the proprietor – complainant to find out the truth who took the delivery of aforesaid quantity by producing forged documents and to whom the actual delivery was given and where the aforesaid goods were unloaded are all questions which are required to be investigated and therefore, it is requested to dismiss the present petition.
[5.0] Petition is also opposed by Shri L.B. Dabhi, learned Additional Public Prosecutor appearing on behalf of the State and Investigating Officer. It is submitted that on holding preliminary inquiry and recording the statement of the concerned persons, it is revealed that M/s. Jai Shree Balaji Fats & Oils Pvt. Ltd. upon instruction from the accused persons went to Kandla Port Trust and on the strength of forged communication dated 27.10.2008 took the delivery and disposed of the entire consignment. It is submitted that the allegations and averments in the FIR are required to be further investigated. Therefore, it is requested not to exercise powers under Section 482 of the CrPC and not to quash and set aside the impugned FIR at the threshold. It is submitted that before any investigation could be carried out with respect to the allegations made in the FIR, the petitioners have preferred the present petition and since then there is a stay of further investigation.
[6.0] Heard the learned advocates appearing for respective parties at length and considered the averments and allegations in the impugned FIR as well as the submissions made on behalf of the rival parties. It is the specific case on behalf of the complainant that the delivery of 213 MTs of oil which they had purchased from M/s. Jai Shree Balaji Fats & Oils Pvt. Ltd. has been taken over from the M/s. Agency & Cargo Care Ltd. on the basis of the fake and forged communication dated 27.10.2008 alleged to be on the letter pad of the complainant – M/s. Swastik International and the forged signature of the proprietor of M/s. Swastik International – complainant and the said delivery is alleged to have been taken by M/s. Shree Balaji Carriers at the instance of the petitioners. Therefore, as such who prepared/produced the forged communication dated 27.10.2008 on the basis of which the delivery of 213 MT was given to M/s. Shree Balaji Carriers; whether the communication dated 27.10.2008 which is alleged to be on letter pad of M/s. Swastik International is forged and/or concocted or not; whether the said communication dated 27.10.2008 alleged to have been signed by the proprietor of M/s. Swastik International is a forged signature or not and M/s. Shree Balaji Carriers took the delivery of 213 MT of oil at whose instance and actually the delivery was given to whom, are all questions which are required to be investigated by the IO during the course of investigation. Even the counsel appearing on behalf of the petitioners has submitted that who took the delivery of 213 MTs is required to be found out as, according to the petitioners, the complainant took the delivery of the same. Therefore, when there are specific allegations with respect to forging the documents and even according to the petitioners also, to find out the truth as to who took the delivery of 213 MTs on producing the documents in question and the same are required to be investigated, as such no case is made out to exercise powers under Section 482 of the CrPC and to quash and set aside the impugned FIR at the threshold and without further investigation.
[6.1] Now, so far as the contention on behalf of the petitioners that as no amount has been paid by the complainant with respect to 213 MTs of oil of which delivery has been taken over by him and even the cheque of Rs.1 crore which was paid by M/s. Swastik International has been dishonoured for which complaint under Section 138 of the Negotiable Instruments Act, 1881 is filed and therefore, the impugned FIR deserves to be quashed and set aside is concerned, the aforesaid has no substance. It is the case on behalf of the complainant that as such he gave the cheque of Rs.1 crore as advance payment and the said cheque was deposited by the accused persons after taking the delivery of 213 MTs of oil by producing forged documents and as soon as the complainant came to know with respect to taking the delivery of 213 MTs of oil fraudulently by creating forged document dated 26.10.2008, he immediately withdrew the amount from the bank and therefore, the cheque was dishonoured. Be that as it may, whether the complainant has committed offence under Section 138 of the Negotiable Instruments Act, 1881 or not, is to be considered at the time of trial in the said complaint. However, the fact remains that the complainant is facing trial for offence under Section 138 of the Negotiable Instruments Act, 1881 for dishonour of cheque with respect to the very goods in question of which according to the complainant, he has not taken any delivery and the delivery has been taken away by producing forged document dated 26.10.2008 at the instance of the petitioners. Therefore, on the aforesaid ground, the impugned FIR is not required to be quashed and set aside. All other submissions which are made by the learned advocates appearing for respective parties are required to be considered at appropriate stage after investigation is concluded. Only after the investigation is concluded, the truth will come out as to who prepared/produced the forged documents; who took the delivery of 213 MTs on producing alleged forged documents; to whom the goods were delivered etc.; even the document dated 26.10.2008 which is alleged to have been forged, it bears the signature of the original complainant or not, are all questions which are required to be investigated. Under the circumstances, this Court is of the opinion that this is not a fit case to exercise powers under Section 482 of the CrPC and to quash and set aside the impugned FIR at the threshold and without permitting the IO to conduct the investigation. After the investigation is concluded, the IO will submit appropriate report/chargesheet before the concerned Magistrate, which is required to be considered by the learned Magistrate in accordance with law and on merits. However, when the impugned FIR discloses prima facie commission of cognizable offences which are required to be further investigated, no case is made out to exercise powers under Section 482 of the CrPC.
[7.0] In view of the above and for the reasons stated above, present Special Criminal Application deserves to be dismissed and is, accordingly, dismissed. Rule discharged. Adinterim relief granted earlier stands vacated forthwith.
(M.R. Shah, J.) menon