TaxTMI 
TaxTMI 
2023 (9) TMI 1104
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....er is seeking quashing of FIR no. 06/2023 dated 12.01.2023 registered under Section(s) 406/420/120-B of the Indian Penal Code, 1860 ["IPC"] at P.S. Economic Offences Wing, New Delhi ["EOW"] and all proceedings emanating therefrom. BACKGROUND: 2. Before dwelling into the facts involved, this Court notes that barring the present litigation, there is already a spate of litigations ongoing inter-se the petitioner-Mr. Ashish Bhalla and respondent no. 2/ complainant-Mr. Vishvendra Singh before various forum(s) including this Court within and outside the jurisdiction of this Court. The petitioner claims to be an architect and an urban designer besides being a development professional having experience of working on various projects in addition to teaching 'Housing and Urban Design' in different Institutions and Universities. The petitioner also claims to have tied up with service providers and financial institutions in addition to being also engaged with various distressed projects in NCR. In fact, the respondent no. 2/ complainant and one Mr. Sunil Gandhi, who were former friends/ associates of the petitioner in one M/s A.N. Buildwell Private Limited, were involved in a dispute inter-s....
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....omplicated web of Shell companies but Ashish Bhalla and his family members do not become directors to avoid legal liabilities. Following Companies besides more than 100 additional shell Companies form part of WTC Group of Companies and are collectively called as 'WTC Group'"[Hereinafter referred to as "second complaint"]. The said second complaint resulted in the registration of the impugned FIR on 12.01.2023. The petitioner is seeking quashing of the impugned FIR in this petition. 6. De hors the pendency of aforesaid second complaint of the respondent no. 2, the MCA in furtherance of the first complaint, sent another notice to WTC Noida calling upon the SFIO to commence investigation into the affairs of the WTC group of Companies under Section 212 of the 2013 Act on 14.01.2022, whereafter, search, seizure and raid operations were carried out by the SFIO as part of the investigation at the premises of WTC, Noida on 26.04.2022. After an Investigating Officer was appointed to look into the affairs of the WTC, Noida by the SFIO under Section 212 of the 2013 Act on 05.05.2022, the SFIO on 29.09.2022 approached National Company Law Tribunal, New Delhi [NCLT] vide C.P. 156 of 2022 entit....
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....dated 12.01.2023 registered at P.S. Economic Offences Wing, New Delhi, pending the final adjudication of the accompanying petition, and/or;" 10. The State although has not filed a Status Report but has been supporting the case of the respondent no. 2, details whereof are entailed hereinbelow. 11. The respondent no. 2, in its reply claims that the impugned FIR cannot be quashed because vide letter no. 9833/Accounts/UP RERA/2022-23 dated 26.08.2022, UPRERA has recorded that the petitioner has overdrawn an amount to the tune of Rs. 1,061.71 Crores from all the WTC registered projects with RERA. The SFIO in W.P.(Crl.) 1249/2022 entitled WTC Noida Development Company Private Limited vs. Union of India through Ministry of Corporate Affairs & Ors. filed before this Court, vide its affidavit dated 28.09.2022, has also confirmed the massive diversion of funds by the petitioner. Besides this, the respondent no. 2 in the impugned FIR has also elaborated the position/ details about the alleged 'Ponzi scheme'/ siphoning of funds to the tune of Rs. 1,500 Crores run by the petitioner and his group of Companies. 12. As many as 42 new applicants claiming to be the effected parties have filed imp....
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....ndent no. 2 as also another one dated 03.08.2021 made by Mr. Sunil Gandhi. It is thereafter that SFIO proceedings have commenced and are already undergoing. Thus, the impugned FIR is not maintainable in view of Section 212(1) and (2) of the 2013 Act. 13.6. Once an investigation has been initiated under Section 212 of the 2013 Act into the "... ... affairs of a company... ..." by SFIO, any subsequent parallel proceeding/ investigation by a different agency under the same set of facts is barred by law and the only recourse available is to either quash or transfer the subsequent proceedings to the appropriate agency being SFIO. 13.7. When proceedings/ one FIR is pending before SFIO, the subsequent proceedings/ impugned FIR is liable to be quashed or transferred, as per the mandate of Article 14 of The Constitution of India. Reliance for the said proposition was placed upon T.T. Antony v. State of Kerala (2001) 6 SCC 181 and Babubhai v. State of Gujarat (2010) 12 SCC 254. 13.8. The bar under Section 212(2) of the 2013 Act contains the term "... ...in respect of any offence under this act... ..." which means that any offence in relation to offences under the 2013 Act can only be i....
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....e, it will tantamount to abuse of the process of law. Reliance for the said proposition was placed upon Arnab Ranjan Goswami vs. Union of India (2020) 14 SCC 12. 14.3. The respondent no. 2 is indulging in forum shopping which is not and cannot be permissible. Reliance for the said proposition was placed upon Vijay Kumar Ghai (supra). 14.4. The impugned FIR being subsequent is non-est in law as the impugned FIR itself contains allegations under the 2013 Act and IPC which cannot be segregated. Reliance for the said proposition was placed upon Stepping Stone Pvt. Ltd. vs. State of Rajasthan 2022 (1) RLW 618 (Raj) and Anil Hiralal Shah vs. State of Rajasthan SLP(Crl.) no. 7325/2022 order dated 04.01.2023; and 14.5. The offences under Section(s) 405 and 415 cannot go together and in any event since the petitioner has already returned and, is also returning the monies owed to the investors subject to RERA regulations, no mens-rea can be attributed towards him under Section(s) 415 and 405 IPC. Reliance for the said proposition was placed upon Wolfgang Riem vs State 2012 SCC OnLine Del 3341 and Vimla Dhiman vs. State 2013 SCC OnLine Del 6465. CASE OF STATE: 15. Per Contra, learned ....
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....t, applying the principle that party cannot choose a forum to investigate into the offence, the petitioner herein cannot thus seek quashing of the impugned FIR as it is before EOW which is admittedly before a different forum than that SFIO. 16.6. There is no ground taken in the present petition pertaining to parallel proceedings in the impugned FIR before EOW not being possible during the pendency of the ongoing SFIO proceedings. As such, the arguments addressed thereto cannot be gone into by this Court; 16.7. Also, it is a matter of fact that the petitioner has not challenged the other ongoing investigations conducted by the Enforcement Directorate or UPRERA. CASE OF RESPONDENT NOS. 3, 35 to 37 & 40 to 45 OPPOSING PETITIONER: 17. In support of the contentions advanced by learned counsel for the respondent no. 2, the respondent no. 3 Mr. Rajiv Dawar appearing in person ably assisted by learned counsel Mr. Sameer Dawar and also learned counsel Mr. Rohit Kathuria, together appearing for and on behalf of the respondent nos. 3, 35 to 37 and 40 to 45 opposing the case of the petitioner argued as under: - 17.1. The inherent power of a High Court under Section 482 Cr.P.C. is only ....
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....d FIR involved in the present proceedings are separate, as they are having different ingredients. Reliance for this proposition was placed upon Vandana Yadav & Ors. vs. Sate of UP & Ors. MANU/UP/1115/2023; and 17.7. The offence envisaged in the impugned FIR is supplemental to other penal laws. Reliance for this proposition was placed upon State of West Bengal vs. Narayan K. Patodia (2000) 4 SCC 447 and also upon the words "Without prejudice to any liability including repayment of any debt under this Act or any other law for the time being in force" finding mention in Section 447 of the 2013 Act. 18. This Court has heard both learned senior counsels Mr. Sudhir Nandrajog and Mr. Preetesh Kapur appearing for the petitioner ably assisted by the learned counsel for the petitioner along with learned senior counsel Mr. Pramod Kumar Dubey appearing for the respondent nos. 4 to 34, 38 and 39 supporting the case of the petitioner and also ably assisted by the learned counsel on record for the said respondents on one hand and learned APP Mr. Ajay Vikram Singh appearing for the State, learned counsel Mr. Satya Prakash Yadav appearing for respondent no. 2 along with the respondent no. 3 Mr. ....
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....tation and applicability of Section 212 of the 2013 Act is a pure legal issue, which is a question of law. As per settled law and under the facts and circumstances involved such a legal issue can be taken up at any stage, more so, whence it is having a material connection and bearing upon the merits involved herein. Reliance is placed upon K. Lubna & Ors. vs. Beevi & Ors. Civil Appeal No. 2442/2023 dated 13.01.2020 Supreme Court wherein the Hon'ble Supreme Court has held as under:- "9. On the legal principle, it is trite to say that a pure question of law can be examined at any stage, including before this Court. If the factual foundation for a case has been laid and the legal consequences of the same have not been examined, the examination of such legal consequences would be a pure question of law" Reliance is further placed upon Greater Mohali Area Development Authority & Ors. vs. Manju Jain & Ors. (2010) 9 SCC 157 wherein the Hon'ble Supreme Court has held as under:- "26.... ...It is settled legal proposition that pure question of law can be raised at any time of the proceedings... ..." 23. In the opinion of this Court, the aforesaid issue is hardly of any relevance, espe....
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....efines 'fraud' per-se in respect of affairs of a Company which is inclusive of any act, omission, concealment of any fact or abuse of position committed by any person or any other person with the connivance in any manner, with intent to deceive, to gain undue advantage from, or to injure the interests of, the Company or its shareholders or its creditors or any other person, whether or not there is any wrongful gain or wrongful loss, the relevance of the said Section 447 of the 2013 Act is such that it is forming the very essence of the SFIO proceedings conducted under Section 212 of the 2013 Act. As per Section 447 of the 2013 Act, anyone found guilty of fraud shall be punishable qua any liability, including that of, repayment of any debt under the 2013 Act or any other law along with imprisonment and fine as well, specified therein. Moreover, in case the fraud is involving public interest, the minimum period of prescribed imprisonment is more than in other circumstances. Thus, in the opinion of this Court, the term 'fraud' as used in Section 447 of the 2013 Act is in itself an all- encompassing term which has been given the widest possible meaning. SECTION 206-211 OF THE COMPANIE....
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....ial Court, if upon information having reasonable ground to believe that the books and papers of Company or relating to its affairs have been falsified/ destroyed/ mutilated/ altered/ secreted. It is also specified therein that the provisions of Cr.P.C. shall apply, mutatis mutandis, to all search and seizure operations made under Section 209. 32. As per Section 210 of the 2013 Act, if the Central Government is of the opinion that there subsists a need to investigate into the said affairs of the Company, as per the report of the Registrar or Inspector, as the case may be, or on intimation of a Special Resolution passed by a Company or in public interest, as the case may be, conduct investigation into the affairs of the Company or conduct such investigation where there is an order passed by a Court or a Tribunal to that effect in any proceedings involving the said Company. 33. Section 2113 of the 2013 Act pertains to the establishment of SFIO by the Central Government in terms of the Government of India Resolution No. 45011/16/2003-Adm-I, dated 2nd July, 2003 is to be headed by a Director consisting of experts from the fields of (i) banking, (ii) corporate affairs, (iii) taxation, ....
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....212(6) of the 2013 Act is in the form of a non-obstante clause wherein it is specified that de hors what is contained in the Cr.P.C. "... ...[offence covered under Section 447] of this Act shall be cognizable......" wherein the conditions qua release or bail of an accused of any offence under those sections are also enumerated. These are stringent conditions contained in a Special legislation in comparison to any General legislation. Not only that, it is also specified in the second proviso to Section 212(6) referred herein "... ...that the Special Court shall not take cognizance of any offence... ..." unless there is "... ...complaint in writing... ..." made by either the Director, SFIO or any authorised officer of the Central Government. 40. It is then specified in Section 212(7) of the 2013 Act that the limitation of granting bail enumerated in Section 212(5) is "... ...in addition to the limitations... ..." under the Cr.P.C. or any other law on granting of bail. 41. Section 212(8) of the 2013 Act recognises that only an Officer, above the rank of Assistant Director of SFIO, authorised by the Central Government, may arrest, after following the requisite conditions specified th....
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....vant or useful for such investigating agency, State Government, Police Authority or Income-Tax Authorities in respect of any offence or matter being investigated or examined by it under any other law with the other investigating agency. 49. In the opinion of this Court, all the sub-sections of Section 212 of the 2013 Act have to be harmoniously read together as they are all not only inter-connected but dependent upon each other as well. SECTION 436 OF THE COMPANIES ACT, 2013: 50. Section 4365 which deals with the offences triable by a Special Court, irrespective of what is contained in the Cr.P.C., is another relevant provision of the 2013 Act for the adjudication of the present petition. 51. In fact, the provisions of Section 436(1) of the 2013 Act are applicable notwithstanding "... ...anything contained in the Code of Criminal Procedure, 1973... ..." and all the offences specified in Section 435(1) of the 2013 Act shall be triable by a Special Court, established or designated, and the person accused of/ suspected of the commission of an offence under the 2013 Act is forwarded to the concerned Magistrate under Section 167(2) or 167(2A) of the Cr.P.C., as the case may be, afte....
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.... per Section 36 of the 2013 Act, if any person is found guilty of knowingly or unknowingly making any statement, promise or forecast, which is false, deceptive or misleading or has deliberately concealed any material facts for inducing such/ another person to enter into or to offer to enter into any agreement with an objective of "... ...acquiring, disposing of, subscribing for, or underwriting, securities... ..." or with the purpose of securing a profit to any of the parties from securities or fluctuations in the value thereof or for "... ...obtaining credit facilities... ... " from any bank or financial institution, then the said person shall be liable for action under Section 447 of the 2013 Act. SECTION 448 OF THE COMPANIES ACT, 2013: 56. If any person makes a statement in any "... ... return, report, certificate, financial statement, prospectus, statement or other document required by, or for the purposes of... ..." or for the purpose of any of the provisions of the 2013 Act or the Rules made thereunder, which and if the same is found to be false in any "... ...material particulars... ..." or "... ...which omits any material fact... ...", such person shall be liable for acti....
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....ious experts from diverse fields in the SFIO for smooth functioning of the department under Section 211 of the 2013 Act. The legislature, furthermore, has taken special care of carving out the provisions of Section 212 of the 2013 Act with all the provisions in itself as it contains the role(s), step(s), specification(s), procedure(s) and purpose(s) as to be undertaken and followed by the SFIO [Id. Para 34-49]. 60. It is once again noteworthy that a cumulative reading of Section 212 of the 2013 Act leads this Court to the definitive conclusion that the proceedings therefrom can be initiated, if the Central Government finds it "... ...necessary to investigate into the affairs... ..." of a Company by the SFIO as per 212(1) of the 2013 Act, as it can then 'assign' the SFIO to look into the affairs of such Company and to conduct an investigation under the 2013 Act as per Section 212(2) of the 2013 Act, thereby leaving "... ...no other investigating agency... ..." to investigate "... ...in respect of ... ..." any offence "... ...under this Act... ...". As such "... ...the relevant documents and records... ..." in respect of such "... ...offences under this Act... ..." shall stand t....
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....ad together conjointly with each other, especially when it concerns readings of the provisions of Section 212(2) and Section 212(17)(a) and Section 212(17)(b) of the 2013 Act. [Id. Para 47] 64. It is reiterated that as per Section 212(2) of the 2013 Act, no other agency can proceed with the investigation when SFIO is seized of the matter. Similarly, Section 212(17)(a) of the 2013 Act enumerates a situation whence the SFIO is already seized of the case and thereafter, a case has come before "... ... any other investigating agency... ..." it shall provide all such documents available with it to the SFIO. 65. In the opinion of this Court, as per Section 212 (17)(b) which enumerates a situation, therein that if the SFIO, while being seized of the proceedings into the affairs of a Company, comes across information which pertains to an offence under any other law, which is relevant for other investigating agency, the SFIO has to share such information with the concerned agency. Needless to say, the aforesaid provision as contained under Section 212(17)(b) of the 2013 Act has to be read in conjunction with the provisions contained in Section 212(2) of the 2013 Act, meaning thereby that ....
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....that after any transfer as per Section 212(17)(a) of the 2013 Act to SFIO, no other agency can proceed further with investigation of such offence involving the same nature, particularly, if the said offence is arising out of the same facts and circumstances. It is trite that the provisions of a statute have to be read together as a whole to avoid inconsistency/ repugnancy and to give constructive meaning and effect to the purpose and intent of the legislature. Reliance is placed upon Wiseman And Another And Borneman And Others [[1969] 3 WLR 706] wherein House of Lords has held as under:- "LORD MORRIS OF BORTH-Y-GEST My Lords, that the conception of natural justice should at all stages guide those who discharge judicial functions is not merely an acceptable but is an essential part of the philosophy of the law. We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analysed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application. We do not search for prescriptions which will lay dow....
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....ct of any offence under this Act... ..." it would necessarily encompass all acts of wrongdoings in relation to offences under the 2013 Act. Reliance is placed upon Rahul Modi (supra) wherein the Hon'ble Supreme Court has held as under:- "33. The very expression "assign" in Section 212(3) of the 2013 Act contemplates transfer of investigation for all purposes whereafter the original investigating agencies of the Central Government or any State Government are completely denuded of any power to conduct and complete the investigation in respect of the offences contemplated therein. The idea under sub-section (2) is complete transfer of investigation. The transfer under sub-section (2) of Section 213 would not stand revoked or recalled in any contingency. If a time-limit is construed and contemplated within which the investigation must be completed then logically, the provisions would have dealt with as to what must happen if the time-limit is not adhered to. The statute must also have contemplated a situation that a valid investigation undertaken by any investigating agency of the Central Government or the State Government which was transferred to SFIO, must then be retransferred to ....
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....it must submit its report to the Central Government upon which the Government may direct it to initiate prosecution against the officers of the Company. Although the constitutional validity of Section 212 is not presently under challenge in the present petition, based on the above observations by Justice Shelat in Barium Chemicals (supra), there ought to be a higher threshold of severity and scrutiny before the SFIO may be assigned a case. In the absence of a higher threshold Section 212 courts the risk of falling foul of Article 14 and an interpretation that renders a provision invalid ought to be avoided." 71. In the opinion of this Court, the aforesaid taken wholistically calls for interference with FIR No. 06/2023 dated 12.01.2023 registered under Section(s) 406/420/120-B of the Indian Penal Code, 1860 at P.S. Economic Offences Wing, New Delhi pursuant to second complaint dated 15.08.2021, which led to registration of the impugned FIR during the pendency of earlier SFIO proceedings pursuant to first complaint dated 14.06.2021. FACTUAL ASPECTS: 72. Now, adverting to the factual aspect, admittedly, the respondent no. 2 first made his first complaint before MCA and SFIO on 14.0....
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....nership vests with one Ashish Bhalla or his family members lie Abhijeet Bhalla, Suparna Bhalla through complicated web of Shell companies but Ashish Bhalla and his family members do not become directors to avoid legal liabilities. Following Companies besides more than 100 additional shell Companies form part of WTC Group of Companies and are collectively called as 'WTC Group'. Persons named: (1) WTC Noida Development Company Pvt. Ltd. (2) Magic eye Developers Pvt ltd. (3) Spire Tech Park Pvt. Ltd. (4) WTC Faridabad Infrastructure Development Pvt. Ltd. (5) Abaxial Design Pvt. Ltd. (6) Proactive Construction Pvt. Ltd. (7) Mr. Ashish Bhalla (8) Mr. Abhijeet Bhalla (9) Mrs. Suparna Bhalla (10) Balaji IT Parks Pvt. Ltd. (11) Sundaram IT Parks Pvt. Ltd. (12) August Residency Pvt. Ltd. (13) Viridian Development Managers Pvt. Ltd. (14) World Trade Centres Association Ltd. Details of Known/ Suspect/ Unknown accused: (1) Mr. Ashish Bhalla (2) Mr. Abhijeet Bhalla (3) Mrs. Suparna Bhalla (4) M A Sayed (5) WTC Noida Development Company Pvt. Ltd. (6) Spire Techpark Pvt. Ltd. (7) WTC Faridabad Infrastructure Development Pvt. Ltd. (8) Abaxial Design Pvt. Ltd. (9) Proacti....
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....x Act, SEBI Act, 1992, SEBI (CIS] Regulations 1998, RERA Act 2016, IPC, Companies Act, etc. It is worth noting that the active participation of WTCA in the instant fraud, duping thousands of gullible investors, is apparent from the fact that every project (including residential where WTCA is not even authorized to grant franchise, as per their own constitution/byelaws) launched by Ashish Bhalla's group of companies bear the name of 'WTC or 'World Trade Center' for the purpose of betraying gullible investors who always get captivated by WTC Brand's glare & dazzle. In essence WTCA is actively involved in defrauding investors in India alongside Ashish Bhalla. Infact, instant fraud explained hereinafter involves complex, multi-disciplinary ramifications while having serious public interest at stake due to the sheer magnitude of money laundering involved, apart from various other aspects. It is worth noting that the accused have collected more than Rs. 5,000 Crores and have also siphoned/misappropriated the same due to lackadaisical approach of authorities The present complaint is divided into following parts: PART I: Fraudulent Modus Operandi of WTC for Collectin....
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.... Court, reveal that respondent no. 2, though is the complainant before two different forums, however, he is only a Power of Attorney holder of Mr. Sunil Gandhi, having no direct connection with the Project qua which the proceedings have been initiated by the SFIO or which is involved before EOW in FIR No. 006/2023. In the opinion of this Court, facts emerging from the aforesaid are such which reflect that the respondent no. 2 has been clearly indulging in forum shopping. The respondent no. 2 cannot be allowed to vent his ire. 75. Moreover, it is the same respondent no. 2 who, himself has expressed/ made the same averments vide his own subsequent e-mail filed before the Commissioner of Police, Delhi and the EOW on 15.08.2021 which resulted in the registration of the impugned FIR to the effect that the offences involved therein are those which are very much falling within the ambit of SFIO, and there is a need of an expert agency to look into the offences mentioned therein. Thereby confirming that the SFIO is the only expert body which can take up and then look into what is stated in the impugned FIR. As evidently visible from the aforesaid there is a clear admission by the responde....
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....aid by customers. However, since assured returns are on total amount, the assured returns can be seen to be much higher. Section 447 [Explanation (i)]: Allegation amounts to act and omission to gain undue advantage from investors and allottees. Section 448: Falsification of financial statements and account books. Huge amount of funds collected from investors have been siphoned out to various shell companies in the name of payments for contracts, consultancy services, showing inflated costs by entering into fraudulent contracts with related group shell companies. Section 447 [Explanation (i)]: Allegation amounts to an act to gain undue advantage from and injure the interests of investors and allottees. Section 452: Allegations amounts to wrongfully utilizing property of company (including cash) or the purposes other than those expressed or directed in the articles and authorised by the 2013 Act. Assured returns paid to investors have been shown as construction cost. Section 447 [Explanation (i)]: Allegation amounts to act and omission to gain undue advantage from investors and allottees. Section 448: Falsification of financial statements and account books. Sect....
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.... Section 447 [Explanation (i)]: Allegation amounts to act with intention to deceive and to gain undue advantage from investors and allotees. 78. The aforesaid makes it amply clear that the allegations raised by respondent no. 2 as contained in the impugned FIR are all covered within Section(s) 447, Section 452, Section 36 of the 2013 Act. It is thus more than apparent therefrom that the present FIR is nothing but an attempt to wreck vengeance upon the petitioner with an ulterior motive considering the chequered history of the petitioner and the respondent no. 2. The same is not permissible and has been held repeatedly by various Courts across the Country, especially after following State of Haryana vs. Bhajan Lal (1992) Supp (1) SCC 335 wherein the Hon'ble Supreme Court has held as under:- ""102. ... ... (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offen....
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....taranchal [Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1 : (2008) 1 SCC (Cri) 259] observed : (SCC p. 11, para 27) "27. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage." 22. In Indian Oil Corpn. v. NEPC India Ltd. [Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188], a two-Judge Bench of this Court reviewed the p....
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....to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. 23. This Court time and again has examined the scope of jurisdiction of the High Court under Section 482 CrPC and laid down several principles which govern the exercise of jurisdiction of the High Court under Section 482 CrPC. A three-Judge Bench of this Court in State of Karnataka v. L. Muniswamy, (1977) 2 SCC 699 held that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. In para 7 of the judgment, the following has been stated: '7. ... In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed....
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....eport was submitted by the IO. We, thus, are fully satisfied that the present is a fit case where the High Court ought to have exercised its jurisdiction under Section 482 CrPC and quashed the criminal proceedings." 16. The exposition of law on the subject relating to the exercise of the extra-ordinary power under Article 226 of the Constitution or the inherent power under Section 482 CrPC are well settled and to the possible extent, this Court has defined sufficiently channelized guidelines, to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. This Court has held in para 102 in State of Haryana v. Bhajan Lal as under: "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to se....
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.... is a matter of fact that the 2013 Act which is a 'special law', which was enacted only in the year 2013 as against the Cr.P.C. which is a 'general law' which was enacted much before to that in year 1973. When Section 212 of the 2013 Act, which is the special law is clear and is unambiguous, it will take precedence over the provisions of Cr.P.C. which is a 'general law'. This is more so as there is nothing contradictory specified in the special law to already prevalent general law. Reliance is placed upon Opto Circuits vs. Axis Bank (2021) 6 SCC 707 wherein the Hon'ble Supreme Court has held as under:- "11. Mr S.V. Raju, learned Additional Solicitor General made a subtle attempt to contend that the power of seizure is available under Section 102 CrPC, which has been exercised and as such the freezing of the account would remain valid. We are unable to appreciate and accept such contention for more than one reason. Firstly, as noted, it has been the contention of Respondent 4 that the PMLA is a standalone enactment. If that be so and when such enactment contains a provision for seizure which includes freezing, the power available therein is to be exercised and the procedure contem....
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....hensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply." But this rule of construction is not of, universal application. It is subject to the condition that there is nothing in the general provision, expressed or implied, indicating an intention to the contrary : see Maxwell on Interpretation of Statutes, 11th Edn., at pp. 168-169. When the words of a section are clear, but its scope is sought to be curtailed by construction, the approach suggested by Lord Coke in Heydon case [(1584) 3 Rep 7b], yield better results: "To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope, and object of the whole Act : to consider, according to Lord Coke : (1) What was the law before the Act was passed; (2) What was the mischief or defect for which the law had not provided; (3) What remedy Parliament has appointed; and (4) The reason of the remedy." With these rules of construction in mind, let us now tackle the problem raised in this case. Under Section 34(1)(a), after it was amended by the Finan....
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....d incomes during the period not covered by the said years. With that object, in 1956 Section 34 was amended by the Finance Act, 1956, by which it was provided that notice under Section 34(1)(a) can be issued at any time. But sub-section (1-A) was retained, including the second proviso. This amendment, along with the other amendments, made by the said Act came into force on April 1, 1956. In 1959, the said section was again amended by the Indian Income Tax (Amendment) Act, 1959. Under sub-section (4), as amended by the 1959 amendment Act, notice under sub-section (1)(a) might be issued at any time notwithstanding that at the time of the issue of notice the period of 8 years specified in that sub-section before its amendment by the Finance Act, 1956, had expired in respect of the year to which the notice related. This amendment was necessitated by the judgments of the Bombay and Calcutta High Courts in Debi Dutt v. T. Belan [(1959) 35 ITR 781] and S.C. Prashar v. Vasantsen [(1956) 29 ITR 857] respectively holding that if the right of the Income Tax Officer to reopen an assessment was barred under the law for the time being in force, no subsequent enlargement of the time could revive ....
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....ant to or inconsistent with an earlier general law, the later special law will prevail over the earlier general law. 13. Having regard to the fact that several special rules had been tailor- made to suit and meet the special requirements of different specified services, the General Rules recognised the need for the Special Rules to prevail over the General Rules. Rule 2 of the General Rules providing for it, is extracted below: "2. Relation to the Special Rules.-If any provision in the General Rules contained in the part is repugnant to a provision in the Special Rules applicable to any particular service contained in Part III, the latter shall in respect of that service, prevail over the provision in the General Rules in this part." Therefore, the provision of the Special Rules [Note (2) under Entry 5 of the Table] will prevail over the provision of the General Rules [Note (3) under Rule 5]. Even without such a specific provision, contextually, the said later special rule would have prevailed over the said prior general rule. 14. The question whether there can be an exception to the primacy given to the Special Rules by Rule 2 of the General Rules, was considered by this C....
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.... signified that it was intended to apply to all services and prevail over any prior special rules, the intention of the rule-making authority should be given effect by applying the subsequent general rule instead of the earlier special rule. 18. This Court held that the language of Note (3) to Rule 5 of General Rules showed that it was intended to prevail over existing Special Rules which indicated a contrary position. What is significant is that the two decisions considered the Special Rules that were earlier in point of time to the General Rules as amended by the 1992 Amendment rules which introduced Note (3) to Rule 5 of the General Rules. 19. This Court held, on reading the General Rules in conjunction with the Special Rules, that Note (3) to Rule 5 of General Rules will prevail over the corresponding provisions in the Special Rules showing a different intention, when deciding whether the ratio of each feeder category should be determined with reference to the cadre strength or existing vacancies. 20. What logically follows from the principle enunciated in the two decisions is that if any special rule is subsequent to the general rule, then the question of examining wheth....
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....ontemplate any period. 3. Under sub-section (11) of Section 212 there could be interim reports as and when directed. In the face of these three salient features it cannot be said that the prescription of period within which a report is to be submitted by SFIO under sub-section (3) of Section 212 is for completion of period of investigation and on the expiry of that period the mandate in favour of SFIO must come to an end. If it was to come to an end, the legislation would have contemplated certain results including retransfer of investigation back to the original investigating agencies which were directed to transfer the entire record under sub-section (2) of Section 212. In the absence of any clear stipulation, in our view, an interpretation that with the expiry of the period, the mandate in favour of SFIO must come to an end, will cause great violence to the scheme of legislation. If such interpretation is accepted, with the transfer of investigation in terms of sub-section (2) of Section 212 the original investigating agencies would be denuded of the power to investigate and with the expiry of mandate SFIO would also be powerless which would lead to an incongruous situation ....
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....CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case [(1979) 2 SCC 322 : 1979 SCC (Cri) 479] it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarde....
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....atural justice is a great humanising principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. Lord Morris of Borth-y-Gest spoke of this rule in eloquent terms in his address before the Bentham Club: "We can, I think, take pride in what has been done in recent periods and particularly in the field of administrative law by invoking and by applying these principles which we broadly classify under the designation of natural justice. Many testing problems as to their application yet re-remain to be solved. But I affirm that the area of administrative action is but one area in which the principles are to be deployed. Nor are they to be invoked only when procedural failures are shown. Does natural justice qualify to be described as a 'majestic' conception? I believe it does. Is it just a rhetorical but vague phrase which can be employed, when needed, to give a gloss of assurance? I believe that it is very much more. If it can be summarised as being fair- play in action - who could wish that it would ever be out of action? It denotes that the law is not only to be guid....
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....ibes natural justice "as a distillate of due process of law" (vide Fontaine v. Chastarton [(1968) 112 Solicitor General 690] ). It is the quintessence of the process of justice inspired and guided by "fair- play in action". If we look at the speeches of the various Law Lords in Wiseman case [1971 AC 297 : (1969) 3 All ER 275] it will be seen that each one of them asked the question "whether in the particular circumstances of the case, the Tribunal acted unfairly so that it could be said that their procedure did not match with what justice demanded", or, was the procedure adopted by the Tribunal "in all the circumstances unfair?" The test adopted by every Law Lord was whether the procedure followed was fair in all the circumstances and "fair-play in action" required that an opportunity should be given to the taxpayer "to see and reply to the counter-statement of the Commissioners" before reaching the conclusion that "there is a prima facie case against him". The inquiry must, therefore, always be : does fairness in action demand that an opportunity to be heard should be given to the person affected?" 85. In the opinion of this Court, especially in view of what is contained above he....
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....eir stand before the concerned SFIO who shall look into the entire case and reach to its own independent conclusion. If it is found that the shares as purchased by the applicants are in no manner connected, the SFIO shall be free to unfreeze the shares. However, if he reaches to the conclusion otherwise that money is involved, he shall take all steps to prevent loss to the Govt, and to the petitioner-company who claims of having been subjected to fraud. The investigation in FIR No. 213/2020 registered at Police Station Shah- janpur District Bhiwadi is, therefore, transferred to the SFIO. The Investigation Officer in FIR No. 213/2020 shall handover all details as required to the SFIO." Reliance is further placed upon the judgment dated 04.01.2023 in SLP(Crl.) No. 7325/2022 entitled Anil Hiralal Shah vs State of Rajasthan wherein the challenge was made to Stepping Stone (supra) wherein the Hon'ble Supreme Court has upheld the same while holding as under:- "... ....Our attention has been drawn to the provisions of sub Section(2) of Section 210 of the 2013 Act, which stipulates that where an order is passed by a Court or Tribunal in any proceeding before it that the affairs of a com....
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....e or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. 464 : A person is said to make a false document-First-Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document/or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed; or "***" The definition of "false document" is a part of the definition of "forgery". Both must be read together. If so read, the ingredients of the offence of forgery relevant to the present enquiry are as follows: (1) fraudulently signing a document or a part of a document with an intention of causing it to be believed that such document or part of a document was signed by another or under his....
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.... of "fraud" would include not only deceit, but also some injury to the person deceived, it would be appropriate to hold by analogy drawn from the definition of "dishonestly" that to satisfy the definition of "fraudulently" it would be enough if there was a non-economic advantage to the deceiver or a non-economic loss to the deceived. Both need not co-exist. xxxx 7. The classic definition of the word "fraudulently" is found in Stephen's History of the Criminal Law of England, Vol. 2, at p. 121 and it reads: "I shall not attempt to construct a definition which will meet every case which might be suggested, but there is little danger in saying that whenever the words 'fraud' or 'intent to defraud' or 'fraudulently' occur in the definition of a crime two elements at least are essential to the commission of the crime : namely, first, deceit or an intention to deceive or in some cases mere secrecy; and secondly, either actual injury possible in jury or to a risk of possible injury by means of that deceit secrecy.... This intent is very seldom the only, or the principal, intention entertained by the fraudulent person, whose principal object nearly every case is his own advantage....
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....tended to cause any loss of money to the finance companies. His intention had been by deceit to induce any person who was charged with the duty of seeing that the credit restrictions then current were observed to act in a way in which he would not act if he had known the true facts, namely, not to prevent the advancing of large sums of money exceeding the limits allowed by law at the time. The court held that the said intention amounted to intend to defraud. Hilbery, J., speaking for the court, pointed out the distinction between deceit and defraud and came to the conclusion that "to defraud" is "to deprive by deceit". Adverting to the argument that the deprivation must be something of value, i.e, economic loss the learned Judge observed: "We have, however, come to the conclusion that this is too narrow a view. While, no doubt, in most cases of an intention to defraud the intention is to cause an economic loss, there is no reason to introduce any such limitation. Provided that the intention is to cause the person deceived to act to his real detriment, it matters not that he suffers no economic loss. It is sufficient if the intention is to deprive him of a right or to induce him t....
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....ary that there should be an intention to cause both. On the analogy of this definition, it might be said that either an intention to secure a benefit or advantage on the one hand, or to cause loss or detriment on the other, by means of deceit is an intent to defraud." But, he found in that case that both the elements were present. Benson, J. pointed out at p. 114: "I am of opinion that the act was fraudulent not merely by reason of the advantage which the accused intended to secure for himself by means of his deceit, but also by reason of the injury which must necessarily result to the University, and through it to the public from such acts if unrepressed. The University is injured, if through the evasion of its bye- laws, it is induced to declare that certain persons have fulfilled the conditions prescribed for Matriculation and are entitled to the benefits of Matriculation, when in fact, they have not fulfilled those conditions for the value of its examinations is depreciated in the eyes of the public if it is found that the certificate of the University that they have passed its examinations is no longer a guarantee that they have in truth fulfilled the conditions on winch a....
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....tly, this Court is not agreeable with the contentions raised by the learned APP Mr. Ajay Vikram Singh appearing for the State, learned counsel Mr. Satya Prakash Yadav appearing for respondent no. 2, the respondent no. 3 Mr. Rajiv Dawar appearing in person, ably assisted by learned counsel Mr. Sameer Dawar and learned counsel Mr. Rohit Kathuria appearing together for and on behalf of the respondent nos. 3, 35 to 37 and 40 to 45, as the same are against the settled position of law. It is further clarified that with respect to the proposition of law laid down by a Co- ordinate Bench of this Court in S.P. Gupta (supra), the reliance thereon is misplaced, as the same was rendered on 24.03.2005, i.e., prior to coming into force of the 2013 Act wherein the SFIO was specifically brought in, in view of the changes happening from time to time, as elaborated hereinabove. Further, the reliance placed upon Section 26 of the General Clauses Act, is of no assistance, as the same cannot come to the aid of the aforesaid respondents, in view of what has been discussed and entailed hereinabove. Moreover, though various judgements were handed over by the aforesaid respondents during the course of argu....
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....tion is required for prevention of abuse of process of law or otherwise to secure the ends of justice. The Court held as under : (SCC p. 618, para 9) "9. Having regard to the settled legal position on external interference in investigation and the specific facts of this case, we are of the view that the High Court ought to have exercised its jurisdiction under Section 482 CrPC to secure the ends of justice. There is no prohibition under law for quashing a charge-sheet in part. A person may be accused of several offences under different penal statutes, as in the instant case. He could be aggrieved of prosecution only on a particular charge or charges, on any ground available to him in law. Under Section 482, all that the High Court is required to examine is whether its intervention is required for implementing orders under the Criminal Procedure Code or for prevention of abuse of process, or otherwise to secure the ends of justice. A charge-sheet filed at the dictate of somebody other than the police would amount to abuse of the process of law and hence the High Court ought to have exercised its inherent powers under Section 482 to the extent of the abuse. There is no requirement ....
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....igation Office Head Quarter, New Delhi, within a period of four weeks from today, which is already seized of the complaint and investigation thereof (ongoing) against WTC group of Companies ordered by the Ministry of Corporate Affairs vide order dated 14.10.2021 under Section 212 of the Companies Act, 2013. 94. Accordingly, in view of the above the petition stands disposed of alongwith pending applications, if any. 95. Copy of this order be sent to SFIO HQ, New Delhi and S.H.O., EOW, New Delhi. ------------------------ Notes: 1. Section 235. INVESTIGATION OF THE AFFAIRS OF A COMPANY. (1) The Central Government may, where a report has been made by the Registrar under sub- section (6) of section 234, or under sub-section (7) of that section, read with sub-section (6) thereof, appoint one or more competent persons as inspectors to investigate the affairs of a company and to report thereon in such manner as the Central Government may direct. (2) Where- (a) in the case of a company having a share capital, an application has been received from not less than two hundred members or from members holding not less than one-tenth of the total voting pow....
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.... other body corporate which is, or has at any relevant time been, the company's subsidiary or holding company, or a subsidiary of its holding company, or a holding company of its subsidiary ; or (b) 1[(b) any other body corporate which is, or has at any relevant time been, managed by any person as managing director or as manager, who is, or was, at the relevant time, the managing director or the manager of the company ; or] (c) any other body corporate, which is, or has at any relevant time been, managed by the company or whose Board of directors comprises of nominees of the company or is accustomed to act in accordance with the directions or instructions of - (i) the company, or (ii) any of the directors of the company, or (iii) any company, any of whose directorships is held by the employees or nominees of those having the control and management of the first- mentioned company ; or (d) any person who is or has at any relevant time been the company's managing director or manager,]. 1[the inspector shall, subject to the provisions of sub-section (2), have power so to do and shall report on the affairs of the other body corporate or of the managing director or....
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.... is or was observed or is likely to be observed in practice and which is relevant to the purposes of his investigation. (4) [Omitted by the Companies (Amendment) Act, 2000, with effect from 13-12-2000.] (5) For the purposes of any investigation under this section, sections 239, 240 and 241 shall apply with the necessary modifications of references to the affairs of the company or to those of any other body corporate 3 [***] : Provided that the said sections shall apply in relation to all persons (including persons concerned only on behalf of others) who are or have been, or whom the inspector has reasonable cause to believe to be or to have been, - (i) financially interested in the success or failure, or the apparent success or failure, of the company, or of any other body corporate 4 [***] whose membership or constitution is investigated with that of the company ; or (ii) able to control or materially to influence the policy of such company, body corporate 2 [***] ; as they apply in relation to officers and other employees and agents of the company, of the other body corporate 5 [***], as the case may be : Provided further that the Central Government shall not be bound t....
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....n Office is established under subsection (1), the Serious Fraud Investigation Office set-up by the Central Government in terms of the Government of India Resolution No. 45011/16/2003- Adm-I, dated the 2nd July, 2003 shall be deemed to be the Serious Fraud Investigation Office for the purpose of this section. (2) The Serious Fraud Investigation Office shall be headed by a Director and consist of such number of experts from the following fields to be appointed by the Central Government from amongst persons of ability, integrity and experience in, - (i) banking; (ii) corporate affairs; (iii) taxation; (iv) forensic audit; (v) capital market; (vi) information technology; (vii) law; or (viii) such other fields as may be prescribed. (3) The Central Government shall, by notification, appoint a Director in the Serious Fraud Investigation Office, who shall be an officer not below the rank of a Joint Secretary to the Government of India having knowledge and experience in dealing with matters relating to corporate affairs. (4) The Central Government may appoint such experts and other officers and employees in the Serious Fraud Investigation Office as it considers necessary ....
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.... and assistance to the Investigating Officer as he may require for conduct of the investigation. (6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), 1[offence covered under section 447] of this Act shall be cognizable and no person accused of any offence under those sections shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take cognizance of any offence referred to this subsection except upon a complaint in writing made by- (i) the Director, Serious Fraud Investigation Office; or (ii) any officer of the Central Government authorised, by a general or special order in writing in this behalf by tha....
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.... in employment of the company or any other person directly or indirectly connected with the affairs of the company. (15) Notwithstanding anything contained in this Act or in any other law for the time being in force, the investigation report filed with the Special Court for framing of charges shall be deemed to be a report filed by a police officer under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974). (16) Notwithstanding anything contained in this Act, any investigation or other action taken or initiated by Serious Fraud Investigation Office under the provisions of the 2013 Act, 1956 (1 of 1956) shall continue to be proceeded with under that Act as if this Act had not been passed. (17) (a) In case Serious Fraud Investigation Office has been investigating any offence under this Act, any other investigating agency, State Government, police authority, income-tax authorities having any information or documents in respect of such offence shall provide all such information or documents available with it to the Serious Fraud Investigation Office; (b) The Serious Fraud Investigation Office shall share any information or documents available with it, with any investigat....