1. By this application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”), the applicant seeks quashing of the first information report registered vide Waghodia Police Station I – C. R. No.181 of 2009.
2. The facts of the case as stated in the application are that the applicant herein is the Director of Anurita Enterprises Pvt. Ltd. (Aluminum Extrusion Division), a company having its Head Office at GIDC, Umbergaon, District Valsad. The said company purchased movable assets of a firm named Apurva Aluminium Corporation, situated in GIDC Estate, Waghodia, Vadodara by participating in public auction held by the creditor bank pursuant to an advertisement dated 25.10.2008. As per the advertisement, the sale was strictly subject to “As is where is and whatever there is” basis. The petitioner, therefore, through the engineers of the company, got the assets inspected between the period specified in the advertisement and thereafter, offered to purchase the same for a consideration of Rs.81,21,000/- by submitting a proposal which was accepted vide letter dated 21.3.2009. After depositing the entire amount of consideration, a certificate of sale dated 24.3.2009 along with description of the movable assets came to be issued in favour of the applicant. The applicant thereafter deputed its engineers to the site and made arrangements for removing and transporting the assets from the premises of M/s Apurva Aluminium Corporation. The applicant also engaged Baroda Freight Carrier to transport the movables to its factory from Vadodara to Umbergaon. The loaders of the transport company were during the day time permitted entry in the premises by the watchman deployed by the creditor bank and under his supervision and under continuous supervision of an authorized officer of the creditor bank, the movables were removed. The removing and loading activity lasted for practically for twenty-seven days starting from 28.3.2009 to 24.4.2009. The applicant upon receipt of the machinery, installed the portion and parts of the machinery which was useful to it and the remainder having become scrap was kept in the godown.
3. The second respondent herein lodged the above referred first information report on 20.9.2009 against the applicant herein alleging commission of the offences punishable under sections 454, 457, 380 and 114 of the Indian Penal Code. The gist of the allegations made in the first information report are to the effect that the father of the first informant had started a partnership company in the name and style of Arsh Casting Corporation in plot No.244/5, situated in Waghodia GIDC, Vadodara wherein aluminium draw tubes were being produced and that the first informant, his elder brother Pankaj and his cousin brother Hitesh were partners therein. That one other firm namely, Apurva Aluminium Corporation was running in the same compound in Sheds No.244/2/3/4 respectively. Because of internal disputes, the said Arsh Casting Corporation was also closed and that the said company has not taken any kind of loan from any bank. According to the first informant, as the company was closed since 2007 the partners of the said Arsh Casting Corporation decided to sell the furniture and machinery of the firm and a purchaser having approached them, about fifteen days prior thereto, the first informant along with his cousin and Amitbhai Pravinchandra Shah and Sureshbhai Nagindas Shah visited the premises of the company and found that the locks secured on the doors of the company were opened and machineries as mentioned in detail in the first information report were found to be missing. It is further the case of the first informant that as the machineries and other equipment from their company were missing and the equipment and machineries of Apurva Aluminium were also not there, as there was a watchman at the gate of the company they inquired from him whereupon they were informed that he was deputed by the Bank of Baroda. They, therefore, went to the Bank of Baroda, Raopura Branch and upon inquiry came to know that Apurva Aluminium Corporation had obtained a loan from Bank of Baroda to the tune of Rs.4.5 crores and failed to repay the same and therefore, the assets of Apurva Aluminium Corporation had been auctioned. Thereafter upon further inquiry, the first informant learnt that a new company had been set up at Umergaon which was manufacturing goods similar to those manufactured by their company and he visited the new company Anurita Enterprises Private Limited and made inquiry posing as a customer and found that the machineries of his company were lying there without being fitted. The first informant has accordingly alleged that the responsible officers of the company of the applicant at the time of removing the assets of Apurva Aluminium Corporation which they had purchased in public auction have broken the locks of Arsh Casting Corporation and entered their company and stolen the equipment and machineries enumerated therein and thereby, committed the offences punishable under sections 454, 457, 380 and 114 of the Indian Penal Code.
4. Mr. P. M. Thakkar, Senior Advocate, learned counsel for the applicant invited attention to the allegations made in the first information report to submit that it is clear that the entrance of the premises of Apurva Aluminium Corporation and Arsh Casting Corporation is one and the same. Attention was also invited to the partnership deeds of Apurva Aluminium Corporation and Arsh Casting Corporation, to demonstrate that it is abundantly clear that the partners of the two firms are inter-connected and are related to each other. It was submitted that the first informant, his brother Pankaj and his cousin brother Hitesh are partners of Arsh Casting Corporation, whereas the brother of the first informant Pankaj and Hitesh are also partners of Apurva Aluminium Corporation. It was submitted that under the circumstances, it is difficult to believe that the first informant was not aware of the auctioning of the properties of Apurva Aluminium Corporation as alleged in the first information report. It was urged that only the machinery which was shown to the inspecting engineers of the company and which was offered to be purchased and actually purchased on “As is where is and whatever there is” basis, was removed, loaded and transported by the applicant under the supervision of the watchman and the officers of the creditor bank. That the removal and transportation continued for twenty-eight days, but neither the first informant nor the watchman of the bank nor the officer of the creditor bank said anything or object to the removal of the assets by the applicant. It was submitted that despite the aforesaid factual position, the first informant by making false assertions, has lodged the above referred first information report.
4.1 It was further submitted that the applicant is primarily interested in only two of the main machineries, namely, (1) AL Extrusion Machine with Control Panel and (2) AL Extrusion Plant with conveyor system, Power Pack, Electric Motor, Model: GUJ1000, Make: Extrusion Equipment Engineers, which are listed at serial No.26 and 41 of the List at Annexure “I” to the Certificate of Sale dated 24.3.2009. It was submitted that the applicant was interested in purchasing the aforesaid two machineries, however, since the all the machineries listed in the said List had been auctioned together by the bank, the applicant was required to purchase the entire machineries, though the applicant was not and is not interested in any other machineries except the aforesaid two machineries.
4.2 It was submitted that in the event if it is the case of the first informant that other machineries belonging to him had been taken away by the applicant, the applicant has no desire to retain the same and is willing to return the same to the first informant. However, the applicant has not taken away the machineries on its own, but the same had been handed over to the applicant by the creditor bank, hence, there is no question of commission of the offence under section 379 IPC as alleged.
4.3 It was further submitted that the first informant by making false assertions has lodged the first information report with an ulterior intention of getting even with the creditor bank as the Directors of Apurva Aluminium Corporation are facing a complaint and investigation from the Crime Detection Branch, Vadodara for defrauding the creditor bank by obtaining a huge loan by submitting stock statements despite the company having ceased production. It was further submitted that, therefore, to settle scores with the Bank, a completely false, frivolous, malicious and vexatious complaint has been lodged indirectly against the directors of the applicant company and that the police officer investigating into the first information report by taking undue advantage of the power and authority vested in him is trying to falsely implicate the applicant and other Directors and other officers of the company in the commission of the alleged offence. It was submitted that the complaint has been lodged with an ulterior intention of wreaking vengeance and with an intention to pressurize the creditor bank to compromise in the compliant lodged against the Directors of Apurva Aluminium Corporation and in the process the reputation of the company of the applicant is being tarnished.
4.4 Next it was submitted that the applicant herein has placed various documents on record and has made categorical averments on oath in the memorandum of application. However, despite service of notice as well as service of rule, the second respondent has not bothered to appear before this court, nor has he controverted the averments made in the memorandum of application. The averments made in the memorandum of application, therefore, stand uncontroverted. Reliance was placed upon the decision of the Supreme Court in the case of Harshendra Kumar D. v. Rebatilata Koley and others, (2011) 3 SCC 35,1 and more particularly to paragraph 25 thereof for the proposition that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under section 482 or for that matter in exercise of revisional jurisdiction under section 397 of the Code. The court further observed that in an appropriate case, if on the face of the documents – which are beyond suspicion or doubt – placed by the accused, the accusations against him cannot stand, it would be travesty of justice if the accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage. Adverting to the facts of the present case, it was submitted that it is apparent that though the first informant was very well aware of the auction proceedings in respect of the assets of Apurva Aluminium Corporation, he has feigned complete ignorance thereof in the first information report which does not inspire confidence in the contents thereof. It was, accordingly, urged that the first information report having been lodged with the mala fide and malicious intent of wreaking vengeance to settle personal scores, falls within the illustrations set out by the Supreme Court in the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, and as such the same deserves to be quashed and set aside.
5. On the other hand, Ms. Archana Raval, learned Additional Public Prosecutor submitted that pursuant to the first information report lodged by the second respondent, the police had inspected the premises of the applicant herein and had found the machineries alleged to have been stolen from the premises of Arsh Casting Corporation in respect of which a panchnama has also been drawn. However, upon being called upon to make a categorical statement that the articles mentioned in the panchnama do not form part of the assets sold by the creditor bank to the applicant as detailed in the Certificate of Sale (Annexure “I”) issued by the Bank of Baroda to the applicant, the learned Additional Public Prosecutor, despite being instructed by the Investigating Officer, was not in a position to make such a statement.
6. From the facts emerging on record, it is apparent that the applicant herein had pursuant to a public notice for sale of assets, purchased assets belonging to Apurva Aluminium Corporation at an auction held by the Bank of Baroda. Since the applicant’s offer of Rs.81,21,006/- came to be accepted by the authorized officer, upon payment of the amount, a certificate of sale dated 24.3.2009 came to be issued by the authorized officer of the Bank of Baroda. By the certificate of sale, the authorized officer has acknowledged the receipt of the sale price in full as well as handing over the delivery and possession of the items listed therein. The movable properties are described in Annexure “I” to the said certificate wherein 59 items are enumerated. The learned counsel for the applicant has asserted that the applicant was interested in purchasing only the two items mentioned at Serial Nos.26 and 41 thereof and that many of the items mentioned in the list, were more in the nature of scrap. However, since the entire assets were to be sold at a go, the applicant was required to purchase all the items listed in the said list.
7. As noted hereinabove, it has been categorically averred in the memorandum of application that all the activities of removing the goods from the premises of Apurva Aluminium Corporation had been carried out by the applicant under the supervision of a responsible officer of the Bank as well as the watchman deployed by the bank and at no point of time, was the applicant ever told that any of the goods removed did not belong to Apurva Aluminium Corporation.
8. A perusal of the partnership deeds of Apurva Aluminium Corporation and Arsh Casting Corporation, copies whereof have been annexed along with application, clearly show that the partners therein are related and that two of the partners of Apurva Aluminium Corporation are the brother and cousin brother of the first informant herein.
9. It is in the aforesaid factual background, that the allegations made in the first information report are required to be examined. It is the case of the first informant that there was a partnership firm of his father named, Arsh Casting Corporation, at GIDC Sector 244/5 wherein, aluminium draw tubes were being produced and that he was a partner along with his elder brother and his cousin Hitesh. That in the adjoining Sheds No.244/2, 244/3 and 244/4, Apurva Aluminium Corporation was situated and that both the companies were situated in the same compound. It is the case of the first informant that their company Arsh Casting Corporation came to be closed down in the year 2007 on account of differences between the brothers and in respect of the said company, no loan had been taken from the bank. That since the company was closed down in the year 2007, it was subsequently decided to sell the machinery and furniture and upon a purchaser approaching them, about 15 days prior to lodging of the first information report, he had gone to the company along with his cousin whereupon, he found that the locks of the company were broken open and that the machinery and furniture enumerated in the first information report were missing. That since the machinery and other articles of Apurva Aluminium Corporation were also not found there, they had inquired from the watchman at the gate who informed them that he had been deployed there by the Bank of Baroda, where after they had gone to Bank of Baroda to inquire about the same and found that Apurva Aluminium Corporation had taken loan of Rs.4.5 crores from the Bank of Baroda and as they were not repaying the same, the bank had auctioned its properties. That thereafter, they had inquired and had come to know that there was a company at Umbergaon which was manufacturing goods akin to the goods which they were manufacturing, hence, they had gone to Umbergaon posing to be customers at the new company, that is, Anurita Enterprises Pvt. Ltd. and that the aforesaid machineries were lying there without being fitted and accordingly, it is alleged that at the time when the persons of Anurita Enterprises were taking the machineries which they had kept in the auction of Apurva Aluminium Corporation, they had also broken open the locks of the premises of their company and had taken away all their goods and stolen away their machineries.
10. On a bare reading of the first information report, it is apparent that the first informant is not aware of the exact date of the alleged offence. According to him, the premises of Arsh Casting Corporation were closed and that it was only when they wanted to sell the machinery and furniture of the said company that they had visited the premises of the said company and found that the machinery and furniture are missing. On a reading of the entire first information report, there is not even a whisper that there is any relationship between the partners of Apurva Aluminium Corporation and Arsh Casting Corporation. From the documents annexed along with the application, which is in the nature of the documents from the Registrar of Firms, it is apparent that the brother and cousin of the first informant are partners in both the above-referred companies. Under the circumstances, it is not possible to believe that the first informant was not aware of the fact that the machineries and furniture of Apurva Aluminium Corporation had been auctioned. Moreover, a perusal of the document at page 61 of the compilation shows that the plot No.244/5 stands in the name of Apurva Aluminium Corporation which is the plot on which it is alleged that Arsh Casting Corporation is situated. Thus, it appears that the facts stated in the first information report that Arsh Casting Corporation is situated at plot No.244/5 is incorrect and that the said plot also belongs to Apurva Aluminium Corporation. The learned counsel for the applicant is justified in submitting that the entire basis of the first information report falls and is without any basis inasmuch as Arsh Casting Corporation is not situated on plot No.244/5 and that the said premises also belongs to Apurva Aluminium Corporation. The document at page 60 of the compilation indicates that Arsh Casting Corporation is situated at plots No.244/6 and 244/7 and not at plot No.244/5, as stated in the first information report.
11. From the allegations made in the first information report, it is apparent that all that is stated by the first informant is that he had visited the premises of Anurita Enterprises Pvt. Ltd. and found that the machineries of that company were lying in the premises of Anurita Enterprises at Umargaon. It may be noted that in the present case, it is the case of the applicant that all the machineries which have been acquired by it have been purchased in an auction held by the Bank of Baroda pursuant to the public advertisement dated 25.10.2008 at Annexure “A” to the application. It is further the case of the applicant that all the machineries and other furnitures and fixtures had been removed under the supervision of the officers of the bank and the watchman of the bank. The list of machineries and other furnitures and fixtures purchased by the applicant has been annexed along with the certificate of sale which indicates as many as fifty- nine items having been purchased. In the light of the aforesaid, when it has been alleged in the first information report that the applicant had purchased various machineries during the course of auction, before registering a first information report and taking any action pursuant thereto, it was necessary for the investigating officer to undertake some inquiry to ascertain as to whether or not the machineries which were lying in the premises of the applicant were the machineries which had been purchased by the applicant during the course of auction.
12. As noted hereinabove, the learned counsel for the applicant has already submitted before the court that the applicant is primarily interested in only two of the machineries, namely, the machineries at serial Nos.21 and 46 of the List. Even according to the first informant the machineries and other fixtures belonging to M/s Arsh Castings Corporation are lying in an unused condition in the premises of the applicant. Thus, the say of the applicant that it was not interested in purchasing any machinery other than the above to machineries seems to be true. From the facts as appearing on record it appears that the applicant has taken the machineries and other furniture and fixtures from the premises of Apurva Aluminium Corporation, was done under the supervision of the responsible officers of the bank as well as the watchman of the bank, hence, any goods removed by the applicant would have been under the bona fide impression that the same belonged to Apurva Aluminium Corporation and formed part of the assets purchased by them at the auction.
13. Examining the allegations made in the first information report in the light of the provisions of the Indian Penal Code which have been invoked against the applicant and other unnamed accused, as noticed earlier the offences alleged are under sections 454, 457, 380 and 114 IPC.
14. Section 454 IPC deals with “Punishment in respect of the offence of lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment”. Section 457 IPC deals with “Lurking house-trespass or house- breaking by night in order to commit offence punishable with imprisonment”. In the facts of the present case, it is apparent that the goods which have been taken by the applicant are pursuant to the auction held by the Bank of Baroda. The goods have been taken under the supervision of the officers of the bank and under the eye of the watchman of the bank. Under the circumstances, there is no question of any house trespass being committed by the applicant herein.
15. Section 380 IPC deals with “Theft in dwelling house”, and provides that whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. On the facts emerging on record, it is apparent that the ingredients of section 380 IPC are not satisfied inasmuch as, there is nothing whatsoever to indicate that the applicant herein has dishonestly removed any movable properties out of the possession of the first informant without his consent. All the machineries, furniture and fixtures have been removed by the applicant under the supervision of the officers of the bank as well as the watchman of the bank. Under the circumstances, the present case squarely falls within the illustration (5) of the decision of the Supreme Court in the case of State of Haryana and others v. Bhajanlal and others, (supra) viz., “where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused”.
16. At the cost of repetition it may also be noted that despite categorical averments having been made in the application, the respondent No.2 has chosen not to appear and rebut the same. Under the circumstances, the said averments remain uncontroverted and are to be accepted as true and correct.
17. At this juncture it may be germane to refer to the decision of the Supreme Court in the case of Harshendra Kumar D.
v. Rebatilata Koley and others, (supra), wherein it has been held thus:
“25. In our judgement, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under section 482 or for that matter in exercise of revisional jurisdiction under section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under section 482 or revisional jurisdiction under section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an inquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents – which are beyond suspicion or doubt – placed by the accused, the accusations against him cannot stand, it would be travesty of justice if the accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage.”
18. As noted hereinabove, examining the first information report in the light of the documentary evidence produced by the applicant which form part of the record of the Registrar of Firms as well as other documents like the public auction notice, certificate of sale issued by the Bank of Baroda, etc. which form part of official documents and which have not been controverted by the second respondent, this court is of the view that the ingredients of the offences alleged cannot be stated to have been made out. Under the circumstances, continuation of the proceedings would amount to an abuse of the process of law warranting invocation of the inherent jurisdiction of this court under section 482 of the Code.
19. For the foregoing reasons, the application succeeds and is, accordingly, allowed. The first information report registered vide Waghodia Police Station I – C. R. No.181 of 2009 is hereby quashed and set aside. Rule is made absolute accordingly.
[HARSHA DEVANI, J.] parmar*