Interim Order 4

Order Details: Order Below EX 1
Pdf Text: C. C. No. 1672 PW 2022 State Vs Basav B. Paul
CNR No.MHMM18-008216-2022
ORDER BELOW EXH.12
1. Perused record. This is an application under Section 239 of Code of
Criminal Procedure for discharge.
2. Heard Ld. Advocate for the applicant/accused. Heard Ld. A.P.P.
3. The summary of the allegations transpired from this charge sheet can
be summarized as follows -
The company named as Shaila Clubs and Resorts Pvt. Ltd., hereinafter
referred as Shaila Clubs, on 02.05.2005, was formed by Mr. Rajiv Kore (now
deceased) and Mr. Sanjay Mahadev Pratap. Its main business activity was
running clubs and restaurants at Mumbai and Sangli. In the year 2007, the
father of first informant deceased Vilasrao Patil, became its Director as some
shares were held by him. The informant came to know about its various
business activities from his father and deceased Rajiv Kore. In the year 2007,
Conducting Agreement was executed between Shaila Clubs and Savannah
Lifestyle, a company owned by accused/present applicant. In consideration of
this Conducting Agreement accused through his company Savannah Lifestyle,
paid about Rs.15 cores, from 18.05.2008 till 2011. He had received a
substantial stake in the profit earned by Shaila Clubs. For acknowledging the
amount paid by accused share certificates were issued by Shaila Clubs, to the
accused on 31.03.2007. Later on, 10.01.2008 Chartered Accountant of the
Shaila Clubs also issued certificates acknowledging valuation of those shares
along with interest calculation sheet in the name of Savannah Lifestyle i.e. a
company owned by accused. The value of each share was fixed at
Rs.1,31,000/-.
Later on, a disputed document dated 28.01.2009, a Borrowing
Agreement was executed between Shaila Clubs and Savannah Lifestyle,
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CNR No.MHMM18-008216-2022
through one of the director of Shaila Clubs Mr. Rajiv Kore and
applicant/accused for Savannah Lifestyle. By way of this agreement accused
contended that he paid additional Rs.5 Cores to his company to Shaila Clubs
on 11.01.2008, in the form of Hundi, i.e. by way of cash transaction with a
condition to repay the same with interest @ 1% per month payable monthly
and principal to be repaid at the end of the year of that day. During
subsistence of these transactions on 07.07.2013, one of the Director of Shaila
Clubs Mr. Rajiv Kore died. During this period the informant is substituted as
Director in place of his father Mr. Vilasrao Patil.
Later on, in the same year 2013, dispute occurred between Shaila Clubs
and Savannah Lifestyle and they cancelled the Conducting Agreement,
executed between both the companies. Shaila Clubs also approached
Arbitrator and the proceedings continued upto the month of January, 2021.
The Shaila Clubs approached High Court. It is contended that accused also
approached Arbitrator. His contention was also rejected. But he has not
challenged said order.
Then in the year 2018, Mrs. Meghana Rajiv Kore, the wife of deceased
Director Mr. Rajiv Kore, approached National Company Law Tribunal
hereinafter referred as N.C.L.T., and prayed for certain reliefs under Section 7
of Insolvency and Bankruptcy Code, 2016.
The accused came to know about it and participated in the said
proceedings before N.C.L.T. While making claims accused filed on record the
disputed Borrowing Agreement dated 28.01.2009 and he claimed that Shaila
Clubs obtained additional Rs.5 cores from him by way of Hundi. In these
background facts and circumstances informant approached police and lodged
report alleging that no such document i.e. Borrowing Agreement, dated
28.01.2009 executed by deceased Director Mr. Rajiv Kore. Accused with
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intention to cheat informant and his company Shaila Clubs forged and
produced this document before N.C.L.T. on 15.11.2021. Then accused was
arrested and after preliminary proceedings he was released on bail.
Investigation was completed and present charge sheet is filed, in this court.
4. In this lengthy application, the applicant/accused claimed discharge on
various grounds, which can be summarized in a way that he is innocent and
falsely implicated. No offence as alleged made out. The dispute is purely of
civil nature. He relied on judgments of Supreme Court and contended that no
offence of cheating, forgery, etc. made out. The dispute is pending before
N.C.L.T. and the F.I.R. was registered and the present final report is filed only
with sole intention to pressurize the accused to settle the dispute going on
between the parties. There is no evidence on record. Therefore, he shall be
discharged.
5. The Ld. A.P.P. objected to it vide his reply, Exh.17, contending that
there is enough material on record to draw the inference of cheating and other
allegations against accused. The stake involved is high. The whole evidence
can not be marshaled at this stage. The prima facie case made out. He also
relied on certain citations and hence, prayed for rejection of the application.
6. The summary of both the parties are in tune with their respective
contentions.
7. The allegations can be summarized in a way that the husband of
informant owned company named as Shaila Club and Resort Pvt. Ltd. The
accused owns a company named as Savannah Lifestyles. The company of the
accused entered into transaction with Shaila Clubs and Resort, named as
Conduction Agreement, for managing it’s club situated at Bandra, Mumbai.
As per said agreement accused paid Rs.15,00,00,000/-. Then dispute occurred
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and said agreement was canceled. The parties approached Arbitrator and High
Court, as well. The informant approached N.C.L.T. for bankruptcy. In the said
proceeding the accused participated and filed another document Hundi and
claimed that he had paid additional amount of Rs.5,00,00,000/- to Shaila
Club. It is contended that said document is forged by him and his claim is
false, made with intention to defraud the informant and other stakeholders.
8. Almost all the facts upto the claim made by accused before N.C.L.T. on
the basis of Hundi, are not in dispute. The only disputed fact is whether the
said document is genuine or not? The additional fact to be considered is
whether dispute is purely of civil nature and constitutes no offence.
9. If we go through record, particularly contents of First Information
Report and documents produced in support of it, it shows that the disputed
document was executed on 28.01.2009. However, it was first brought in
picture by accused on 15.11.2021, before Insolvency Resolution Professional
(I.R.P.). During this long span of time of about 12 years several incidences
and disputes occurred between the parties themselves and those dispute
reached upto several forums. In none of those disputes or any such forums
accused produced disputed document.
10. There is no explanation came on record from the side of accused about
this long standing silence. The amount of the disputed document is high and
claim made by accused on its basis is also very high.
11. These aspects of the matter and long standing silence on the part of the
accused creates doubt about his intentions. This is not hollow doubt. There is
enough material on record to draw the inference of prima facie case against
accused. From the intervening facts and circumstances the intention to
defraud can be attributed to the accused. His long standing silence about the
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existence of disputed document creates doubt about his bonafides. Therefore,
the dispute can not be said to be purely dispute of civil nature based on
business transactions. The element of wrongful gain and wrongful loss with
intention to defraud the informant and other stakeholders can be gathered
from the material produced with charge sheet.
12. As such The grounds assigned are not available to accused. No case for
discharge made out. Therefore, following order -
ORDER
Application is rejected.
Sd/-
MUMBAI (KOMALSING RAJPUT)
DATE – 21.02.2024 M.M., 12TH COURT, BANDRA, MUMBAI
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