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Calcutta High Court (Appellete Side)
Vineeta Burman & Ors vs The State Of West Bengal & Anr on 15 July, 2025
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE DR. JUSTICE AJOY KUMAR MUKHERJEE
CRR 2243 of 2022
With
CRR 161 of 2022
(Jalpaiguri Matter)
With
CRAN 8 of 2024
CRAN 9 of 2024
Vineeta Burman & Ors.
Vs.
The State of West Bengal & anr.
For the petitioner : Mr. Sabyasachi Banerjee
Ms. Reshmi Ghosh
Ms. Parna Mukherjee
For the opposite party No.2 : Mr. Sandipan Ganguly, Sr. Adv.
Mr. Ayan Bhattacharya, Sr. Adv.
Mr. Satadru Lahiri
Mr. Aditya Ranjan Tiwary
Ms. Kanchan Jaju
For the State : Mr. Antarikhya Basu
Heard on : 17.03.2025
Judgment on : 15.07.2025
Dr. Ajoy Kumar Mukherjee, J.
1. Petitioners herein have sought for quashing of proceeding being GR
case no. 670 of 2019 pending before learned ACJM, Siliguri, arising out of
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Siliguri Cyber Crime PS case No. 46 of 2019 under section 490/471/120B of
the Indian Penal Code (IPC) read with section 66/66C of the information
Technology (I.T.) Act, 2000. Simultaneously petitioners also prayed for
quashing of other proceeding being GR case of 670 of 2019 presently
pending before learned ACJM, Bidhannagore, arising out of Bidhannagore
cyber crime PS case no. 75 of 2019 under sections
418/419/420/465/468/471/506/120B/34 of the IPC read with section
66/66C of the I.T. Act 2000. Though the facts alleged in both the cases are
same but two Applications pertains to complaints lodge by two separate FIR
maker stated to be erstwhile directors of company.
2. Petitioners’ case is that the petitioner no.1, 2 and 3 are the directors
of Greenzenbio Pvt. Ltd. (in short company). In the said company petitioner
no.1 is having 46.12% share-holding and petitioner no.2 is holding 43.65%
share.
3. Their further contention is that the petitioner no.2 had come up with
the idea of setting of the said company in Siliguri in 2008 and petitioner
no.2 introduced his brother as the initial share holder and
promoter/director of the said company. In 2007, husband of opposite party
no.2 (CRR 2243 of 2022) had approached the petitioner no.2, with the object
of entering into business relationship with the petitioner no.1 and his
brother. Accordingly opposite party no.2 herein in CRR 2243 of 2022 Laxmi
Tantia was appointed as director of the said company on 2nd May, 2007
along with one Mahesh Kumar Khaitan, thereby the group of said Tantia
held 66.66% shareholding in the said company and the Barman family had
33.33% of the paid up share-capital in the said company. At the relevant
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point of time, the said company had three directors namely Monohar Kant
Barman i.e. brother of petitioner no.2, shri Mahesh Kumar Khaitan i.e.
uncle of Tantia’s and the opposite party no.2 i.e. Laxmi Tantia. In fact from
2009 till 2015, the affairs of the said company was looked by shri Manohar
Kant Barman. Though the said opposite party no.2 was one of the directors
of the said company but the petitioner no.1 and 2 had to look after entire
day to day business of the said company.
4. Petitioners further case is that said Manohar Kant Barman had
tendered his resignation on 1st June, 2015 because of his personal issues
and the petitioner no.1 was appointed as a director in the Board of the
company on 29th September, 2015. After the resignation of shri Manohar
Kant Barman, the petitioner no.1 and 2 were looking after the business of
the said company and the opposite party no.2 Laxmi Tantia Became a
sleeping director of the said company without having much interest in the
affairs of the business of the said company. Thereafter on 16th August, 2016
Shri Mahesh Kumar Khaitan had tendered his resignation as a director of
the said company and in his place Shri Binod AjitSaria (complainant of CRR
161/2022) was appointed as the director of the said company on 29th
September, 2016.
5. Petitioners specific allegation is that the dispute arose between the
group of petitioner no.1 and 2 and the opposite party no.2 when without the
knowledge and consent of the other directors, a new director was appointed
by the opposite party no.2 in breach of contract Since 2016, the petitioner
no.2 was the sole nominee of the members of the Barman family in the
Board of the said company. All the directors of the said company had been
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drawing salary during their tenure as the director of the said company.
According to the petitioner it was detected that during that period several
illegalities wrongful financial irregularities, defalcation of fund of the said
company at the instance of both the opposite party no.2 of the two revisional
applications. This was primarily because of the fact that these two persons
were signatories in the bank account of the said company and they jointly
siphoned of money from the bank account of the said company without
bringing it to the notice of the petitioner no. 1 and 2. The petitioner no.2 had
throughout raised his objection against such financial irregularities, causing
harm to the company.
6. The petitioners’ specific case is that both the said opposite party no.2
in the aforesaid two Applications had siphoned off an amount of Rs.
1,78,60,228/- from the accounts of the said company between 1st April,
2017 and 31st October, 2019. The petitioners claimed when they objected
about such illegalities and irregularities committed by said Laxmi Tantia
(opposite party no. 2 of CRR 2243 of 2022) and Shri Binod Ajit saria
(opposite party no.2 of CRR 161 of 2022) they have decided to voluntarily
tender their resignation from the directorship of the company after having
accepted their guilt. In fact such resignation of both the above mentioned
persons were required for the purpose of protecting the existence of the said
company and the assets of the said company. Such resignation letters
offered by them are part of the company petition filed before the learned
National company Law Tribunal, Kolkata Bench. The resignation tendered
by the aforesaid two namely Laxmi Tantia and Binod Ajit saria was duly
accepted by the Board of Directors of the said company, on 28th August
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2019. Accordingly after such resignation petitioner no.2 and 3 herein were
appointed as additional directors of the said company pursuant to the Board
meeting held on 1st August, 2019 and there appointments as directors were
affirmed in the Extra Ordinary General Meeting held on 26th August, 2019.
7. The Specific contention of the petitioner is that the aforesaid opposite
party no.2 in both Revisional Applications had voluntarily resigned as
directors of the said company and soon after tendering their resignation,
started involving in several illegal activities by creating disturbance both at
the office and plant of the said company. The petitioner no.2 accordingly
lodged a complaint on 20th September, 2019 to the Commissioner of Siliguri
Police Commissionerate.
8. The opposite party no.2 in both the cases along with their associates
have tried to capture the plant of the said company. Petitioners’ further
contention is suppressing the aforesaid material facts, aforesaid two
opposite party no. 2 lodged two different complaints in two different police
stations and seeking quashment of both the proceedings, common
petitioners/accused persons have preferred the present two Applications.
9. After registration of FIR involved in the Revision Petition being CRR
No. 3392 of 2019, this High Court was pleased to direct that the
investigation of both the above-mentioned cases being Bidhannagore
Cybercrime police station case no. 75 of 2019 and Siliguri Cybercrime police
station case no. 46 of 2019 be transferred to the Cybercrime police station
CID West Bengal.
10. The allegation levelled in the First Information Report reveals that the
petitioners herein in collusion and conspiracy with other accused persons
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manufactured a resignation email allegedly issued by the private opposite
party no.2 of both the cases through the alleged e-mail of the company being
“[email protected]” to “[email protected]” thereby
expressing intention to resign from the management of the company and the
e mail had been issued from the e mail ID being “[email protected]“,
which does not belong to the concerned FIR maker. It is further alleged in
the FIR that surprisingly the alleged Emails were sent at 10:43 a.m. on
August 24th, 2019, whereas the Board Meeting in which the alleged
resignation was accepted, had already commenced from 10.30 a.m. on
August 24th, 2019. Further FIR allegation is that based on those fake
documents, the accused persons/petitioners also uploaded Form DIR-12
along with the forged resignation letter in the website of ROC which were
purportedly certified by the Company Secretary. The total numbers of
directors in the company were three i.e. two from the Tantia group while one
of the Barman group. With the uploading of the fake resignation letters of
the two directors of the Tantia Group, there remained only one director and
a singly Director could not have conducted any valid meeting of the Board of
Directors of the company, as the corum of two directors could not be made.
It is further alleged in FIR that despite being the sole director, the petitioner
no.1 in a completely illegal manner appointed the petitioner no.2 and 3 as
the directors. It is further alleged that immediately thereafter the share
capital of the group of the private opposite party no. 2 in the company was
diluted by the petitioners by way of unilateral increase/issuance of the
share capital of the company, whereby the authorized share capital of the
company was illegally enhanced from Rs. 20,00,000,/- divided into equity
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shares of Rs. 10/- each to Rs. 57,28,000/- divided into equity shares of Rs.
10/- each, thereby adding 3,72,800/- equity shares of Rs. 10/-, all of which
were allotted to the petitioners and other related parties, without giving the
option of purchase to the group to the private opposite party no.2.
11. Therefore in view of the creation of complaint’s fake resignation letter
and uploading the same on the private portal, the private opposite party
no.2 in CRR No. 2243 of 2022 namely Laxmi Tantia lodged FIR with the
officer in charge Bidhannagore Cyber Crime police station and the private
opposite party of CRR 161 of 2022 namely Binod Ajit saria lodged the FIR
with the O.C. Siliguri cybercrime police station with the allegations as has
been stated above.
12. Being aggrieved by the said impugned proceedings, Mr. Sabyasachi
Banerjee learned senior Counsel appearing on behalf of the petitioners
argued that on plain reading of FIR, it would reveal that at its height the
dispute pertains to affairs of a company, which is a commercial dispute and
the ingredients of none of the penal sections mentioned in the FIR has been
made out. The O.P no.2 had already preferred a company petition before the
National Company Law Tribunal, Kolkata Bench with same allegation of
obtaining their resignation by practicing fraud. The opposite party/FIR
maker has also preferred an appeal before the National Company Law
Appellate Tribunal and both NCLT and NCLAT had only passed orders with
regard to maintain status quo over the bank accounts of the company
during the course of hearing of the application and the Tribunal has not
prevented the running of the said company and the petitioner no.2 was
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allowed to carry on the business of the said company and operate a bank
account for the same purpose.
13. He further submits, after completion of investigation the investigating
authority has submitted charge sheet in the instant case. The cyber forensic
report dated 25.06.2021 reveals that the email of the petitioners no.2 was
used by the Opposite party no.2, but while accessing the email of the said
company, the opposite party no.2 was at their residence and as such the
respective FIR maker had raised absolute frivolous allegations against the
petitioners and the police have also acted on such baseless and frivolous
allegation to harass the petitioners without any cogent reason. The
petitioners no.2 while allowing access to the FIR maker to use the email ID
of the said company, then the FIR maker was acting as a director.
Accordingly the petitioner no.2 cannot have any knowledge about the
contents of the email and he has only given access.
14. Mr. Banerjee strenuously argued that the entire allegation is a
product of after-thought, since the respective opposite party no.2 had
wilfully offered their resignations and having accepted the same by the
Board of Directors, the opposite party no. 2 cannot accuse the petitioners of
any wrong committed against the complainant. The conduct of the
complainants shows that their intention is to misuse the process of the
criminal law to harass and humiliate the petitioners, so that they can extort
from the petitioners and the said company. His further contention is that
since the dispute is a commercial dispute which has already been referred
to the National Company Law Appellate Tribunal, the self same issue cannot
be the subject matter of criminal court’s jurisdiction to adjudicate, in as
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much as no ingredient of criminality is involved. In fact entire allegations
made in the instant complaint are within the domain of the Companies Act
2013, which is a special statute enacted for the affairs of the companies and
as such there is an efficacious redress for the grievance of the aggrieved
party and therefore the instant criminal proceeding has no leg to stand.
15. His further contention is in the absence of any allegation of deception
or representation, exercised on the complainant by the petitioners, resulting
in any wrongful loss to the complainant, the ingredients of the offence under
sections 418/419/420 of the IPC are not made out. The allegation of
deception since inception of transaction is also absent in view of the fact
that admittedly the petitioner no.1 was a director of the said company from
the very inception and the petitioner no. 2 and 3 were subsequently
inducted as directors of the company whereas the complainant is the
erstwhile director of the said company. Therefore, the question of possessing
dishonest intention from inception of the transaction does not arise. The
basic ingredients to constitute offence of forgery under sections
465/468/471 of IPC is also absent in as much as there is no materials to
show that the signature of the FIR maker was forged in any document
including electronic document on record. The investigating authority during
investigation did not consider certain relevant documents, which were
brought to their notice and which includes certain screenshots taken from
the device and also the existence of another device and thereby they have
arrived at an erroneous understanding and thereby have filed the erroneous
charge sheet
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16. In this context he also emphasized that the email
“[email protected]“, was accessed and used by all directors and two
staff of the company at Siliguri namely Binod Ajit saria, Laxmi Tantia,
Ramakant Barman, Sandip Basak being the manager and Lilawati Chand
being the accountant of the company. On the date of resignation both Laxmi
and Binod were reportedly at Siliguri office of Greenzen, while the petitioners
were in Kolkata. The Private opposite party no.2 accessed the email account
of the company, on being given access from the Samsung device as the
Samsung device was the connected device with the company Email ID. The
email ID “[email protected]“, was already configured in the
Samsung device of petitioner no.2, therefore, there is no question of sending
email from Samsung device by allowing access. Access is always allowed for
another/alternative device. The other device which was allowed access had a
separate IP address and the said device was never recovered by the police as
this device was within the control of FIR maker Vinod and Laxmi. The IP
address of the internet connection to that device was different from
Samsung mobile Vodafone IP address of the petitioner no.2. The petitioner
no. 2 herein has not only access to the official email of the company but all
the other directors have access to the same. On the date of incident access
was sought for from the petitioner no.2 and he permitted access to the
concerned complainants to avail the email. However, while granting access
neither petitioner no. 2 had asked the reasons nor the opposite party no.2
had offered any explanation.
17. Mr. Banerjee in this context tried to take a point that a security alert
was raised for the link google account being the personal e mail account of
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the petitioner no.2 [email protected]. Petitioner no. 2 received said
google alert in his said e mail address wherein intimation was given for
access made in “[email protected]“, from a window device. In fact it
is shocking that while access was granted to the Samsung device of
petitioner no.2 to enter “[email protected]“, at 11.42 a.m., much
prior to that at 10:42 a.m., password was changed for the linked account
being “[email protected]“. Since the petitioner no. 2 has his
personal google account, linked with the company’s google account,
therefore had received a separate intimation in his personal email account.
His specific case is when such resignation was being submitted by the
complainant during that span of time i.e. from 10.45 a.m. to 11.45 a.m., all
other devices including that of the petitioner no.2 were logged out
automatically from the company’s e mail account, since the password was
changed.
18. His further grievance is during the course of investigate the
investigating officer has seized the mobile phone of the petitioner no.2
assuming that such mail was sent from the personal device of the petitioner
no.2. However IO has completely failed to fathom that mail was sent from a
window device likely to be a desktop or a laptop as the Samsung device of
the petitioner no.2 was already logged out of the company e mail Id at the
time when resignation e mail was sent. During investigation the IO failed to
seize the window device from where the email was sent and such material
fact was brought to the notice of the investigating officer, who ignored the
same and therefore submission of the charge sheet in the instant case is a
result of biased and mechanical investigation conducted by the IO. Therefore
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the instant case is devoid of any criminality and initiated with malafide
motive and if allowed to be continued will be mere abuse of the process of
the court.
19. Mr. Sandipan Ganguly, learned senior counsel, appearing for opposite
party no.2 in both the cases submits that the materials collected during
investigation and as stated in the charge sheet discloses clear involvement of
the petitioners and others in commission of the alleged offences. Cumulative
appreciation of the facts demonstrated in the FIR, materials collected during
investigation, specially the seized contemporaneous materials and
independent opinion of the forensic expert along with the motive of the
petitioners to commit the offence, leaves no room of doubt as to the
involvement of the petitioners in commission of the offences complained.
Accordingly after thorough investigation police has submitted charge sheet
which discloses that the accused persons entered into an evil design and
acted hand in glove together for illegally removing the private opposite party
no.2 in each case from the post of directorship as well as to reduce their
respective shareholding of Tantia Group in the company and thereby
capturing the entire company. In the process of executing such evil design
the accused /petitioner no.2 sent fake resignation letter of the FIR makers
from the directorship of the company from the email account of the
company to the personal mail address of [email protected] by
using his cell phone. Therefore, the documents itself speaks about its false
execution and contents both, which brings the same within the scope of
false documents as defined under section 464 of the IPC. The forged
documents have been used for relinquishing the status/position of the
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private opposite party as well as their right in the company and as such
comes within the definition of “valuable security” as defined u/s 30 of IPC.
20. Mr. Ganguly alleged that uploading Form DIR-12, thereby intimating
the resignation of private opposite party along with such fake and fabricated
resignation letter had been prepared and had been validated by the accused
/petitioner no.1 under her digital signature and subsequently the same was
uploaded by the company secretary to the website of ROC. The accused
persons in the entire process impersonated the private opposite parties for
perpetrating the fraud complained of and falsely represented that private
opposite party no.2 issued letter for their resignation from the company.
21. Mr. Ganguly further argued that the ill motive of the accused
persons/petitioners is easily fathomable from their subsequent conduct i.e.
fraudulent incorporation /introduction of the petitioner no.2 and 3 in the
company as directors for taking the entire control of the business and the
management of the company. Cumulative appreciation from the facts
demonstrated in the FIR as well as materials collected during investigation
discloses prima facie commission of the cognizable offences, alleged in the
FIR. He further submits that the defence of an accused cannot be
considered in a petition under section 482 of the Code of Criminal
Procedure. Moreover appreciation of veracity of the prosecution case qua the
defence version and/or defence case, which is yet to be proved in
accordance with law is impermissible.
22. He also submits that the contention of the petitioners is largely based
on alleged malafide of private opposite parties, which is not to be considered
at this stage. Since both the Revisonal Application are largely based on
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private untested documents annexed to the respective Revisional
Applications, there is hardly any scope of consideration of such documents,
when the fate of the application of the quashing has to be determined only
on the basis of the FIR, charge sheet and materials collected during
investigation.
23. In reply to the petitioners allegation that the dispute between the
parties at best can be categorized as civil dispute and opposite parties opted
for civil proceeding which is pending and as such criminal proceeding does
not lie, Mr. Ganguly on behalf of the opposite party submits that mere
pendency of the proceeding before NCLT Kolkata Bench pertaining to
identical issue does not bar continuation of the subject proceeding towards
its logical conclusion. Once from the materials on the record it is prima facie
established that accused persons committed forgery and used forged
documents to remove the private opposite party no. 2 from the directorship
of the company, the pendency of the proceeding before Tribunal cannot oust
the criminality involved therein nor the penal consequences arising from
such action. Infact a bundle of facts may give rise to both civil cause of
action as well as commission of offence and therefore both civil proceeding
and criminal proceeding can run parallelly and there is no conflict in this
proposition of law.
24. He strenuously argued that the manner in which, the petitioners by
impersonating the private opposite parties and by creating forged
resignation documents removed them from the directorship of the company
and subsequently reduced their shareholding in the company for causing
wrongful loss to opposite parties and corresponding wrongful gain to
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themselves as well as for capturing the ownership of the company,
jeopardising the right and interest of the property of the private opposite
parties herein it cannot be generalized as a principle that pendency of civil
proceeding originating from identical issue always eclipses the scope of
criminal proceeding. Therefore, the facts involved in the subject FIR as well
as materials collected during investigation does not satisfy the tests
prescribed by the Hon’ble Apex Court, as well as by this Hon’ble Court in
several authorities including State of Haryana Vs. Bhajanlal. Reported in
1992 supp (1) SCC 335 and as such this is not a fit case where the
proceeding can be quashed by the court invoking its jurisdiction under
section 482 of the Cr.P.C.
25. Having heard learned counsel appearing on behalf of both the parties
it appears that the FIR case interalia is based on an allegation that the
petitioners herein/accused persons manufactured a resignation email
allegedly issued by the private opposite party through alleged email of the
company thereby expressing intention to resign from the management of the
company and the emails had been issued from the email ID which does not
belong to the private opposite party. Their further case is that, based on
those fake documents, the accused persons also uploaded Form DIR 12
along with forged resignation letter, in the website of the ROC, which were
purportedly certified by the company secretary. Accordingly in view of the
creation of fake resignation letters in the name of the complainant and
uploading the same on the public portal, the petitioners herein committed
cognizable offences.
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26. On the contrary petitioners accused/persons who have come before
this court for quashing the proceeding specifically alleged that the
complainant and his /her associates had issued several fictitious bills upon
the said company from April, 2017 for purported payment being made to
several persons whose existence were never brought to the notice of
petitioner no.1 and thereby they had allegedly siphoned off huge amount of
money from the accounts of the said company during the period of 1st April,
2017 and 31st October, 2019. Their further case is when petitioner no.1 had
come to learn of such gross illegalities and irregularities committed by the
complainants, he raised strong objection and as such the
complainants/opposite parties herein decided to voluntarily tender there
resignation from the directorship of the company after having accepted there
guilt and such resignation was duly accepted by the Board and in their
place petitioner no. 2 and 3 were appointed as additional directors.
27. It further appears from record that investigation has already been
culminated into a charge sheet, submitted against five accused persons
including the present petitioner. It further appears that police had recorded
in the charge sheet:-
“During investigation collected IP allotment details from Google Inc and
subsequently fixed up the suspect mobile number involved. The subject mobile
number was fixed up and it was seized and sent for forensic examination.
During investigation of the case, necessary documents were collected from ROC
wherein it is found e-mail resignation letters of two directors Laxmi Tantia &
Binod Ajitsaria were uploaded by CS Riteek Baheti on 24.08.19 having no
signatures of both resigned directors on their respective resignation letter.
During investigation complainant Laxmi Tantia and other victim director Shri
Binod Ajitsaria and other witnesses in this case were examined with recording
of their statement. Obtained necessary IP data from google in respect of
greenzen bio @ gmail. com was found IP of Vodafone was used to access the
gmail. Collected IP allotment details from MSP Vodafone & found IP was
allotted to mobile no. 990339118 which was possessed and used by
Ramakant Burman. It also revealed that the, generation of questioned email16
message of resignation letter of the complainant, Laxmi Tantia was from mobile
of Ramakant Burman. During investigation, seized the mobile phone of
Ramakant Burman under proper seizure list. After that myself took up its
investigation as Shri Subhash Janai was transferred in other section in CID.
During investigation collected the report from cyber forensic & Digital Evidence
Examiners Laboratory, CID, West Bengal in respect of the seized exhibits. In
which Dr. Asim Kr. Srivastava, Senior scientific examiner, CF & DEEL, CID,
W.B. has opined (i) The Soft copy of mail id greenzenbio @ gmai.com was
accessed and retrieved from the exhibit marked as Ex-1 is given in the
pendrive marked 200908011442/10/2020-DATA (ii) the mail id
[email protected] was found in the exhibit marked as Ex-1, is given in
the pendrive marked 200908011442/10/2020-DATA (iii) the ICCID and SIM
no. retrieve from Exhibit marked as Ex-1 is same is given in device information
in hard copy of extraction report. The soft copy of same is given in the pendrive
marked 200908011442/10/2020-DATA (iv) the memory card marked Ex-1A
has been analysed by using cellebrite physical analysed version 7.44.2.10.
The soft copy of audio, documents, images, text and videos would be retrieve
from the digital storage media (MMC) is given in the pendrive marked
200908011442/10/2020-DATA from the forensic report the prima facie
involvement of accused Ramakant Burman, Vineeta Burman has surfaced.
During investigation, examined witnesses under Section 161 Cr.P.C. and from
their statement the involvement of accused Rittik Baheti, Arunodoi Das
Bhaumick and Sashikant Burman would also be unearthed further. During
investigation, from the forensic examination of the seized material as well from
the statement of independent and material witnesses the documents seized so
far, involvement of Ramakant Burman, Vineeta Burman, Sashikant Burman,
Arunodoi Bhoumick and Rittik Baheti could be surfaced behind this case. Prima
facie charge against the above noted accused persons to be involved for the act
of sudden unlawful termination of directorship from the company Greenzen Bio
Pvt. Ltd. and uploading the alleged resignation letter of the complainant and
Vinod Ajit Saria in ROC is well founded to stand them in trial in the open Court
of law. Evidences against the above noted accused persons regarding their
involvement in respect to other allegation also surfaced.”
28. In the charge sheet police have also cited the name of 23 witnesses
whom prosecution wishes to examine during trial to establish the case of the
prosecution which are as follows:-
(i) Accused persons/petitioners entered into an evil design and
acted hand in glove together for illegally removing the private
opposite parties from the post of directorship.
(ii) In the process of executing such evil design the petitioner no.2
sent fake resignation letter/documents of the complainant from
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the directorship of the company from the email account of thecompany to the personal mail address of Vineeta Burman by
using his cellphone.
(iii) Said email has been impersonated as if the opposite
party/complainant sent the same from the email ID of the
company which according to the prosecution is false.
(iv) The complainant/opposite party no. 2 in both the cases herein
never intended to resign from the post of directorship of the
company and as such there was no scope of sending such
email.
(v) The alleged email had been issued much after purported board
meeting of the company which started on August, 24, 2009 at
10.30 a.m. and said alleged forged resignation letter of opposite
party had been used to adopt a false resignation in the said
board meeting for accepting the same in the meeting and
knowing fully well that the Board meeting cannot be a valid
meeting for want of corum.
(vi) Form DIR 12 had been prepared along with fake and fabricated
resignation, which had been validated by petitioner no.1 under
her digital signature and the same was uploaded to the website
of ROC
(vii) The petitioner /accused persons had also diluted the
shareholding of the group of the private opposite parties in the
company by way of unilateral increase/issuance of the share
capital of the company to cause wrongful loss to opposite
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parties and wrongful gain to the petitioners. Their modus
operandi is reflected by their subsequent conduct of
introduction of petitioner no. 2 and 3 in the company as
directors for taking the entire control of the business and the
management of the company.
29. Now whether the opposite party no. 2 voluntarily resigned or not is a
serious factual dispute. The correctness of the defence case which states
that being guilty of misappropriating huge amount of money, they were
compelled to resign from the post of directorship is also a serious factual
dispute. The correctness of such defence of the petitioners is to be gone into
only after appreciating the evidence during the trial. Merely by referring to
statements made herein and the defence document supplied before this
court during hearing and which are not part of the case diary, can hardly be
taken into consideration for the purpose of quashing the proceeding.
30. Mr. Banerjee lerned Counsel for the petitioners heavily relied upon
Rukmini Narvekar Vs.Vijay Sataredkar and Ors. reported in (2008) 14
SCC 1 to demonstrate that though ordinarily defence materials cannot be
looked into by the court while framing of the charge but there may be some
cases where some defence material can be looked into by Court and
therefore it cannot be said as an absolute proposition that under no
circumstance the court can look into the materials produced by the defence
at the time of hearing application under section 482 Cr.P.C. Having
thoughtful consideration made on this subject, I am constrained to say that
in the said judgment it has also made clear that the defence materials can
be looked into by the court in very rare cases i.e. where the defence
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produced some materials which convincingly demonstrate that the whole
prosecution case is totally absurd or totally concocted. In the instant case
from the statements made in the FIR and the materials collected during
investigation, there is hardly any scope to say that the prosecution case is
totally absurd or totally concocted.
31. In Nitya DharmaNanda Vs. Gopal Sheelum Reddy reported in
(2018) 2 SCC 93, the court held that at the stage of framing of charge the
accused cannot ordinarily invoke section 91 of Cr.P.C, however, the court
being under the obligation to impart justice and to uphold the law can
exercise its power under section 91, if the interest of justice in a given case
so requires but for that also the court is required to be satisfied that the
materials available with the investigator, not made part of the charge sheet,
has crucial bearing on the issue of framing of charge. In the present two
Applications, the parties have come up for quashing of the impugned
proceeding after filing of the charge sheet and it is too early to say whether
the trial court would think it fit to invoke it’s jurisdiction under section 91
considering such documents as crucial for consideration of charge at the
appropriate stage.
32. On the other hand there appears to be positive assertion that in order
to illegally remove the complainant from the post of directorship as well as
to reduce their respective shareholding, with an evil motive, accused person
had sent fake resignation letter which has been impersonated as if the
complainant sent the same from the email ID of the company. Now whether
or not the complainant had voluntarily sent their resignation is a question of
utmost importance in answering a charge of the nature indicated in the
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complaint. Merely because a commercial dispute may have also involved in
the present context, it cannot be said that the ingredients of none of the
penal sections mentioned in the FIR has not been made out in the instant
case. For example section 416 of IPC which deals with cheating by
personation stated in illustration B as follows:-
(a) A cheats by pretending to be a certain rich banker of the same name. A
cheats by personation.
(b) A cheats by pretending to be B, persons who is deceased. A cheats by
personation.
33. Accordingly it may be that the facts narrated in the present complaint
would also reveal a dispute among the directors of the company for which
the parties had also approached before the Company Law Tribunal but that
can hardly be a reason for holding that the offence of cheating by
personation or offence of forging document, would elude from such a
company dispute. In fact many a times offences under the Indian Penal
Code could have been committed in the course of company affairs.
34. It is trite law that in exercising courts power under section 482 of the
Code of Criminal Procedure, this High Court is not supposed to evaluate the
veracity of allegation. The allegations levelled in the FIR as well as contents
of the charge sheet, if taken into consideration it constitutes prima facie
cognizable offence at this stage. Detailed examination of materials supplied
by the defence, which are not part of the case diary cannot be undertaken
nor its probative value can be considered at this stage. In fact the petitioners
demonstrated their prayer for quashing solely based on the documents and
contentions which are not part of the investigation report and on the
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contrary it cannot be said that the materials disclosed in the charge sheet
and the accompanying documents do not satisfy the ingredients of a
cognizable offence.
35. Mr. Banerjee has made strenuous argument that the allegations in the
FIR are based on malafide of the complainant and has resulted due to
business rivalry, and that the issue is subject matter of consideration before
of company Tribunal. The issue of malafide even if exists is of secondary
consideration, unless the same is explicit from the face of the record and
furthermore the issue of malafide, if any, is again an issue of fact which
requires adjudication by adducing evidence. Moreover mere pendency of the
proceeding before National Company Law Tribunal Kolkata pertaining to
identical issue does not circumvent continuation of the subject proceeding
towards its logical conclusion. This is also because the object and purport of
the proceeding pending before Tribunal and the ingredients of criminal
proceeding may have originated from similar factual matrix but they are
completely different and infact the reliefs prayed for in the said two
proceedings are also not similar and as such both the proceedings are
maintainable. The object of enquiry in the proceeding pending before
Tribunal is restricted to the legality of the procedure of removal of erstwhile
directors and introduction of new directors and has got nothing to do with
the allegation of cheating by impersonation or manufacturing of document
for the purpose of cheating. It is also well settled principle of law that merely
because dispute has a civil outfit and/or has occurred during a company
affairs, would not automatically dilute the criminality of action involved in it
and cannot be ground for quashing of a legitimate criminal proceeding.
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36. The crux of the instant criminal proceeding is based on the allegation
that the petitioners by impersonating the private opposite parties and by
creating forged resignation documents have removed them from the
directorship of the company and subsequently reduced their shareholding in
the company for causing loss to opposite parties and corresponding
wrongful gain to themselves, which cannot be the subject matter of
consideration for a Tribunal.
37. It is also to be mentioned that whether all the ingredients of
cognizable offence have been precisely spelled out in the complaint and in
the charge sheet or not are not required to be adjudicated at this stage.
Since factual foundation for the offence has been laid, simply because
dispute regarding company affairs regarding appointment and termination
of directorship is also involved in the present case, it cannot be said that the
criminal proceeding is not maintainable.
38. In State of M.P. Vs. Awadh Kishore Gupta and others. reported in
(2004) 1 SCC 691 the Apex Court has made it clear that what is important
to bear in mind in such cases is the distinction between a case where there
is no legal evidence or where there is evidence which is clearly inconsistent
with the accusations made and a case where there is legal evidence which
on appreciation may or may not support the accusation. It is also made
clear therein that while exercising jurisdiction under section 482 of the
Code, the High Court would not ordinarily embark upon an enquiry,
whether the evidence in question is reliable or not or whether on a
reasonable appreciation of it accusation would not be sustained because
that is the function of the trial judge.
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39. Infact in the instant case there is nothing to say that there is no legal
evidence in the materials collected during investigation or that the materials
available at the end of investigation are inconsistent with the accusation.
Thus, without going to the question as to whether the instant criminal
proceeding would be ended in conviction or acquittal, the allegations if
considered in the light of the statements and documents availed during
investigation and taken to be true, it appears that the ingredients of the
offence or offences are disclosed and there is no material to explicit that the
complaint is malafide frivolous or vexious.
40. The very parameters which are required to be applied while quashing
the FIR, the Supreme Court in State of Haryana Vs. Bhajanlal reported in
1992 (Supp) 1 SCC 335 had identified the following cases in which the
proceeding can be quashed. Relevant paragraph may be quoted in this
context:-
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 have given 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
secure the ends of justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and inflexible guidelines or
rigid formulae and to give an exhaustive list of myriad kinds of cases wherein
such power should be exercised.
(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 offence, justifying an
investigation by police officers under Section 156(1) of the Code except under
an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the
evidence collected in support of the same do not disclose the commission of any
offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but
constitute only a non-cognizable offence, no investigation is permitted by a24
police officer without an order of a Magistrate as contemplated under Section
155(2) of the Code.
(5) 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
just conclusion that there is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the
Code or the concerned Act (under which a criminal proceeding is instituted) to
the institution and continuance of the proceedings and/or where there is a
specific provision in the Code or the concerned Act, providing efficacious redress
for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or
where the proceeding is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to spite him due to private
and personal grudge.
41. Having considered the written complaint, result of investigation and
connected materials taking them as their face value and as correct in their
entirety and judging the same with the parameters of law laid down in
Bhajanlal’s case (Supra) as above, I am unable to persuade myself to hold
that the materials placed before me does not disclose any cognizable offence
or that continuance of the instant criminal proceeding against the
petitioners herein will be an abuse of the process of the court.
42. For the aforesaid reasons the CRR 2243 of 2022 and CRR 161 of
2022 along with connected applications are hereby dismissed. It would be
open for the court to proceed from the stage at which the proceedings were
stopped and to decide the same in accordance with law, uninfluenced by
any of the findings and observation made by this court. It is also made clear
that the petitioners will have full liberty to agitate all his points referred
herein before the trial court at the time of charge hearing or at any
appropriate subsequent stage.
Urgent Xerox certified photocopies of this Judgment, if applied for, be given
to the parties upon compliance of the requisite formalities.
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(DR. AJOY KUMAR MUKHERJEE, J.)
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