Punjab-Haryana High Court
Amit Mittal vs State Of Haryana on 9 April, 2021CRM-M-9205-2021 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-9205-2021
Reserved on 23.03.2021
Pronounced on 09.04.2021
Amit Mittal
….Petitioner
Versus
State of Haryana
…Respondent
CORAM: Hon’ble Mr.Justice Deepak Sibal
Present: Mr. Ravinder Malik (Ravi), Advocate and
Mr.Sarthak Singhal, Advocate
for the petitioner.
Mr. Rupinder Singh Jhand, Addl. A.G., Haryana and
Mr. Ashok Kumar Sehrawat, DAG, Haryana.
Mr.Y. Puran Kumar, IPS, I.G. Ambala Range
Mr.Shekhar Vidyarthi,
Excise and Taxation Commissioner, Haryana and
Mr.K.K. Rao, IPS, Commissioner of Police, Gurguram
Ms. Priya Sharma, Advocate and
Mr. N.P. Bhardwaj, Advocate
for the complainant.
Deepak Sibal, J.
The present petition has been filed under Section 438 Cr.P.C.
for the grant of anticipatory bail in FIR No.54 dated 12.02.2021 registered
under Sections 120-B, 406, 419, 467, 468, 471, 473 and 420 IPC at Police
Station Ambala Cantt, District Ambala.
The complainant filed an application with the police that the
petitioner, who was the complainant’s business partner, in conspiracy with
his co-accused, had siphoned off from their partnership firm, an amount of
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Rs.1,69,75,000/-.
The complainant further alleged in his application that the
complainant was 75 years old; on account of his old age and various
ailments being suffered by him, since the year 2017, he had not been
visiting the business premises too often; the petitioner, taking undue
advantage of such a situation, in conspiracy with his co-accused, by using
fake documents and stamps, started issuing bearer cheques in the names of
fake firms; he then got these cheques encashed through his own persons/
employees who impersonated themselves to be authorised representatives of
the fake firms in whose favour the cheques had been issued and after
encashing the said cheques gave the cash to the petitioner.
On the basis of the above complaint the afore referred FIR was
registered in which the petitioner, along with others, were nominated as
accused persons.
Learned counsel for the petitioner submitted that the petitioner
has been falsely implicated in this case due to strained business relations
between the complainant and the petitioner who were partners of M/s
Banwari Lal and Sons (for short- the firm); the petitioner, as partner of the
firm, was authorised to issue cheques on behalf of the firm; the cheques in
question had been issued by the petitioner in favour of M/s Star
International, Gurugram (for short – Star International) and M/s Kamdhenu
Impex, New Delhi (for short – Kamdhenu Impex) in lieu of electrical
equipment purchased from them; such purchases were duly reflected in the
account books of the firm; there was nothing on the record to show that
between the years 2016-2018, when the purchases were made by the firm
from Star International, such firm did not exist; similarly, there is also no
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evidence to show that Kamdhenu Impex was also not existing in the year
2017-2018 i.e. when the firm made purchases of electrical equipment from
it; both Star International and Kamdhenu Impex were duly registered by the
respective Sales Tax authorities at least at the time when the firm purchased
electrical equipment from them; bearer cheques were issued for purchases
made from the aforesaid two firms on the asking of its proprietors; these
cheques were got encashed by their own authorised representatives with
whom the petitioner has no concern; the dispute in hand is a civil dispute
which has been given a colour of criminality only to pressurize the
petitioner; two FIRs of similar nature had already been registered by the
complainant against the petitioner but when the petitioner secured
anticipatory bail in these cases the present FIR was got lodged only to
pressurize the petitioner and with an attempt to put him behind the bars; in
any case another FIR on the same cause could have not been registered; Star
International and Kamdhenu Impex cannot be said to be fake firms because
they have consistently been filing their Sales Tax returns; the complainant
was an active partner and therefore it does not lie in his mouth to say that he
was not aware of the business dealings of the firm with Star International
and Kamdhenu Impex and that the petitioner is ready and willing to join
investigation as and when called by the investigating agency.
In support of his contentions learned counsel for the petitioner
relied on the following judgments:-
1. Velji Raghavji Patel vs. State of Maharashtra AIR 1965 SC
1433
2. G. Sagar Suri vs. State of U.P. 2000(1) R.C.R. (Criminal)
707
3. Balkar Singh vs. State of Punjab 2010(3) R.C.R. (Criminal)
696
4. T.T. Antony vs. State of Kerala 2001(3) R.C.R. (Criminal)
436
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5. CRM-M-7749-2014- Shyam Singh and another vs. State of
Haryana and another , decided on 04.02.2019.
Learned State counsel opposed the grant of anticipatory bail to
the petitioner on the ground that the petitioner, as the complainant’s partner,
by taking undue advantage of the complainant’s old age and his absence,
siphoned off huge amounts from their partnership firm through issuance and
encashment of bearer cheques in the name of two fake firms namely Star
International and Kamdhenu Impex; the petitioner, who was the authorised
signatory of the firm, issued bearer cheques in the names of the aforesaid
fake firms and then got them encashed through his own persons/ employees
who after impersonating themselves as authorised representatives of the
aforesaid fake firms, encashed the bearer cheques issued by the petitioner
and then brought the cash to the petitioner for which the petitioner gave
them a small commission; co-accused Gurdial and Ashwani, who had
encashed most of the bearer cheques in question, during the course of the on
going investigation, had disclosed the aforesaid modus operandi being
adopted by the petitioner.
Learned State counsel further went on to submit that in the
year 2016 Star International had made an online application seeking its
registration under the Sales Tax Laws of the State and the sale tax
authorities registered it without any physical verification; investigation
conducted by the police so far had revealed that the given address of Star
International was never in existence; as per the documents attached with the
application form made by Star International for seeking its registration
under the Sales Tax Laws, the given address was 136, Shopping Arcade,
Sushant Lok, Gurugram; as per another attached document such premises
had been taken on lease by them through a lease agreement between one
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Sanjay Kumar and Kailash Chand Bansal – alleged proprietor of Star
International; since Sushant Lok, Gurugram had been developed by M/s
Ansal Properties (for short – the developer) questioning of the management
of the developer revealed that 136, Shopping Arcade, Sushant Lok,
Gurugram was an address which was never in existence and that there was
no conveyance deed by the developer in favour of Sanjay Kumar as also that
no lease was registered with them between Sanjay Kumar and Kailash
Chand Bansal; the police searched for Sanjay Kumar but he could not be
found; Kailash Chand Bansal’s house was located where he was not found
but his two brothers, on being questioned, informed the police that Kailash
Chand Bansal was a small time electrician; he had no concern with the
business of trading in electrical goods and that preliminary investigation had
revealed that Kamdhenu Impex was also a fake firm.
Learned counsel for the complainant argued on the same lines
as the learned State counsel.
In view of divergent stands of the parties with regard to the
genuineness of Star International and Kamdhenu Impex, on directions
issued by this Court, Sh. S.S. Siwach, Deputy Excise and Taxation
Commissioner, Gurugram and Sh.Ram Kumar, DSP, Ambala caused
appearance. Sh.Siwach submitted that Star International had applied for its
registration through the online platform of the Sales Tax authorities and was
registered after physical verification. On the other hand Sh.Ram Kumar,
relying on investigations done by the police so far, submitted that Star
International never existed.
With a view to reconcile the above conflict of stands taken by
two wings of the State and for clarity on this crucial aspect this Court then
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directed the Excise and Taxation Commissioner, Haryana, Inspector
General of Police, Ambala Range and Inspector General of Police,
Gurugram Range to appear before this Court for assistance.
In compliance with the afore directions issued by this Court
Sh. Shekhar Vidyarthi, Excise and Taxation Commissioner, Haryana
appeared before this Court and stated that the earlier stand taken by Sh.
Siwach that Star International’s online application was registered after
physical verification was incorrect as the same was not borne out from the
record and that even after its registration Star International was
communicating with the Sales Tax authorities only through its web portal.
On coming into force of the Central Goods and Services Tax Act, 2017 the
business of the said firm, which was running into crores of rupees, was
found to be suspicious. Therefore, it was flag marked and on physical
verification no such firm was found to exist. Accordingly, the said firm was
declared to be fake and is being proceeded against as per law.
Sh. K.K. Rao, IPS, Commissioner of Police, Gurugram and Shri
Y. Puran Kumar, IPS, Inspector General of Police, Ambala Range also
submitted on the same lines as Sh. Vidyarthi. Rather, they went a step
further to say that Star International, while applying for online registration
with the Sales Tax authorities, had given its address to be 136, Shopping
Arcade, Sushant Lok, Gurugram and had also submitted certain documents
which included a lease deed between one Sanjay Kumar and Kailash Chand
Bansal, its alleged proprietor.
According to Sh.Rao and Sh.Kumar investigations done by the
police so far had revealed that 136, Shopping Arcade, Sushant Lok,
Gurugram was an address which was/ is not in existence and that there was
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also no conveyance deed between the builder and Sanjay Kumar as also that
no lease agreement had been registered with the builder or the State
Registration authorities between Sanjay Kumar and Kailash Chand Bansal.
In spite of earnest efforts made by the police, Sanjay Kumar could not be
located and the brothers of Kailash Chand Bansal, when located, revealed
that Kailash Chand Bansal was a small time electrician and not a
businessman having a firm with turnover of crores of rupees.
The above stand by the State has also been placed on the record
in the form of an affidavit of Ram Kumar, DSP, Ambala City.
In addition to the above, the State has argued that co-accused
Gurdial Singh and Ashwani, on being questioned by the police, have
revealed that they were given the bearer cheques in question by the
petitioner to get them encashed which they did and thereafter, as instructed
by the petitioner, they handed over the cheque amounts, in cash, to the
petitioner for a small commission.
In the light of the afore consistent stand taken by both the Tax
authorities of the State of Haryana as also the investigating agency, at this
stage, the existence of Star International, in favour of whom the petitioner
issued bearer cheques for over a crore of rupees, which were also encashed,
is under a cloud and such cloud cover further darkens in view of the fact
that Star International was registered with the Tax authorities in Haryana as
a Timber Trader for dealing in Timber, Hardware Goods, Tools whereas as
per the case set up by the petitioner, between years 2016-2018, for its firm,
the petitioner had allegedly purchased from Star International “Electrical
goods” worth crores of rupees.
Investigations conducted so far have further revealed that on
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one hand Star International was a firm whose turnover was in hundreds of
crores of rupees whereas on the other hand its registered Proprietor namely
Kailash Chand Bansal has been found to be a small time electrician living
in a small flat in Delhi.
Issuance of bearer cheques by the petitioner for over Rs.1.50
crores in favour of the afore referred firms whose very existence is under a
cloud and as to why the alleged authorized representatives of these firms
which were having their registered offices in Gurugram and New Delhi
were coming all the way to Ambala to encash these cheques, is, at this stage,
also found to be suspicious.
Learned counsel for the petitioner also could not explain as to
why the petitioner had issued bearer cheques in the course of business
transactions for over Rs.1.50 crores in violation of Section 40A(3) of the
Income Tax Act, 1961.
In the light of the above narration, the petitioner’s custodial
interrogation is found necessary.
The argument raised on behalf of the petitioner that he has been
subjected to three FIRs of similar nature is liable to be considered only to be
rejected as in the first FIR being FIR No.300 dated 12.07.2020 registered
under Sections 406, 409, 420, 120B IPC at Police Station Ambala Cantt the
allegations against the petitioner and his co-accused therein are that on
21.06.2020, the petitioner along with his son, had taken certain important
documents as well as stock lying in the firm of which the petitioner and the
complainant are partners; on 26.03.2020 the petitioner’s wife came to the
firm and replaced all cctv cameras as also shifted the stocks from the firm’s
godown to an unknown place; the petitioner had replaced the board bearing
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the name of the partnership firm with the board depicting the name of his
own firm namely Synergy Trading Company; the petitioner had tampered
with the accounts of the firm; the petitioner had formed firms namely Shri
Krishna Trading Company, Banwari Lal Electric Company and Arihant
Agency and that he had also shown to have purchased stocks worth Rs.5
lakhs and Rs.10 lakhs from the complainant’s firm to his own firm which
transactions were fake.
In the second FIR being No.325 dated 04.08.2020 registered
under Sections 406, 420 IPC at police station Ambala Cantt, the petitioner
and his wife, along with others, are accused of shifting stocks of the firm, of
which the complainant and the petitioner are partners, to an unknown place
and that the petitioner had tampered with the accounts of the firm with a
view to misappropriate such stock.
In the FIR in question the petitioner in conspiracy with his wife
and other persons, is accused of issuance of bearer cheques to the tune of
Rs.1,69,75,000/- in the name of fake firms namely M/s Star International,
Gurugram and M/s Kamdhenu Impex, New Delhi and then getting the same
encashed from his own persons.
Thus, it is clear that the subject matter of the earlier two FIRs is
distinct when compared to the allegations made in the present FIR and
therefore T.T. Antony’s case (supra) and Balkar Singh’s case (supra) wherein
the Supreme Court and this Court respectively have held that a 2nd FIR on
the same cause is not maintainable have no application.
In Velji Raghavji Patel’s case (supra) the Supreme Court was
considering a question as to whether a partner can be convicted under
Section 409 IPC on account of his failure to account for monies belonging
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to the partnership firm. Such question was answered to hold that since
every partner has dominion over the assets of the partnership firm there can
be no entrustment unless there was a special agreement to that effect and
thus Section 409 IPC would not apply.
In G. Sagar Suri (supra) the Supreme Court held that the FIR
in question could not have been lodged against the petitioner therein as the
same was based on a dispute between partners and was thus civil in nature.
Shyam Singh and another (supra) was cited by learned counsel
for the petitioner to contend that a partner has the authority to act on behalf
of the partnership firm and therefore with regard to allegations of
misappropriation/ siphoning of funds of the partnership firm, the petitioner
cannot be prosecuted at the behest of the complainant- his partner.
In the present case the petitioner is accused of siphoning of
funds of the partnership firm through issuance of bearer cheques in favour
of fake firms and then getting them encashed through his own persons.
These facts distinguish the present case from facts in all the judgments cited
above.
In view of the above no merit is found in the present petition.
Dismissed.
It is clarified that the above observations have been made by
this Court to decide the present petition seeking anticipatory bail in which
investigation is still going on and therefore these observations be not
construed as opinion on the merits of the case.
09.04.2021 (Deepak Sibal)
gk Judge
Whether speaking/ reasoned: Yes/No
Whether Reportable: Yes/No
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