CHANDRA DHARI SINGH,J. - (1.) By the instant petition under section 482 of the Code of Criminal Procedure has been filed against the order dated 17.10.2017 passed by Judicial Magistrate, Lakhimpur Kheri in Criminal Case No. 702 of 1994, subsequent Nos. 3226 of 2015 and 890 of 2017 (Bajaj Hindustan Ltd. v. Sumac International Limited and another). The applicant has further prayed for quashing of the entire proceedings of Criminal Case No. 702 of 1994, subsequent Nos. 3226 of 2015 and 890 of 2017 (Bajaj Hindustan Ltd. v. Sumac International Limited and another), pending in the court of Judicial Magistrate, Lakhimpur Kheri.
(2.) Brief facts of the case are as under:- (i) A sugar factory in the name of Sharda Sugar Industries Pvt. Ltd. was established, which at present running in the name of Bajaj Hindustan Ltd., Unit Palia Kala, P.S. Palia, District Kheri. The Bajaj Hindustan Ltd., Unit Palia Kala decided to increase the production of the Factory and for which they decided to purchase a machinery for the expansion of their project. Pursuant to above expansion of project, the Director of Bajaj Hindustan Ltd. Sri Shishir Bajaj invited the applicant no.2 Sri A.K. Verma, the Managing Director of Sumac International Ltd. to his office, situate in Bombay and discussed to him for expansion of the Unit at Palia Kala. (ii) The petitioner no.1 company has collaboration with M/s Polymax of Australia with respect of 1067 mm X 2134 mm mill size. The agreement dated 12.05.1988 was signed and witnessed by Indian High Commissioner in Australia. The agreement between M/s Sumac International Ltd. and M/s Polymax of Australia had been approved by the Government of India on 04.12.1987 and the same is incorporated in the formal agreement dated 12.05.1988. (iii) Sharda Sugar Industries Ltd. placed an order dated 27.01.1990 to the Sumac International Ltd. for supply of complete milling tandem for expansion of project of their Sugar Mill on the terms and conditions as set out therein. The total price of equipment inclusive of basic price has been given as Rs. 432 Lacs. In the above price driving units such as Esteem Turbine, High Speed Reduction Gear Box, 1st Stage Open Spur Gearing, 2nd Stage Open Spur Gearing to achieve ultimate speed of the mill to 2.8 to 2.5 RPM of each mill are included. The price for 3 sets i.e. for 3 mills is given by Sumac as Rs. 135 Lacs and so cost of the each driving unit will be Rs. 45 Lacs designing and engineering, fabrication, supply, packaging and forwarding, loading and unloading and freight upto Palia Kala erection Unit. It has also been provided in this clause that Sharda Sugar Industries Ltd. was planning to install hydraulic power pack with hydraulic motors on each Mill and for that they have said that they would import the equipment but will place their additional order on Sumac on a price of Rs. 45 Lacs for each Mill drive. (iv) Pursuant to the above mentioned clause and in continuation to the purchase order dated 27.01.1990, a second purchase order was issued by Sharda Sugar Industries Ltd. on 29.03.1990 following the discussions between the parties. In this purchase order, it was mentioned that the modifications and clarifications in the 2nd purchase order were based on the discussion to remove any ambiguity which existed in the matter. (v) The terms of payment in the 1st purchase order were provided under clause 17 and they were of 10% of the price which came to Rs. 43.20 Lacs was required to be paid as a 1st advance along with the order, however, the same was revised as per the 2nd purchase order amounting to Rs. 75 Lacs and was required to be paid by April, 1990. The 2nd advance of 5% of the purchase price which came to Rs. 21.60 Lacs was required to be paid as per the 1st purchase order by March, 1990 but as per the revised purchase order the amount increased to Rs. 27.50 Lacs and was required to be paid by May, 1990. The 3rd advance of 5%, which also came to Rs. 21.60 Lacs as per the 1st purchase order was required to be paid by May, 1990, but as per the revised purchase order the amount increased to Rs. 37.50 Lacs and it was to be paid by June, 1990. (vi) From the above, it was clear that a total of Rs. 150 Lacs was to be paid in advance and the remaining 75% of the basic price as per the 1st purchase order but as per 2nd purchase order 80% was to be paid against the supplies made. (vii) Out of Rs. 150 Lacs as advance, Sharda Sugar Industries Ltd. could pay only Rs. 75 Lacs as advance and the remaining 50% of the advance amounting to Rs. 75 Lacs was never paid to Sumac International Ltd. (viii) Under clause 8 of the 1st purchase order the delivery period and terms of delivery were specified which remained unrevised in the 2nd purchase order and it provided that the entire equipments shall be delivered by Sumac International Ltd. in such a manner that the milling tandem shall be ready for trials by 31.07.1991. It was however, noted that the delivery/dispatch of 1st consignment shall commence after 01.07.1990. (ix) When the contract was still subsisting and even the contract period had been over, which was till July, 1991, Sharda Sugar Industries Ltd., as they have alleged in the complaint canceled the contract on 16.09.1990. By means of this cancellation letter they have demanded the refund of Rs. 75 Lacs which was given to Sumac International Ltd. as advance. (x) Thereafter it has been alleged by Sharda Sugar Industries Ltd. that on 25.03.1992, they sent a demand notice through Advocate for Rs. 75 lacs with interest upto 29.02.1992. (xi) Thereafter another notice dated 02.12.1993 have been sent through their Advocate, under section 434 of the Indian Companies Act to pay the aforesaid amount along with interest @ 25% per annum which they have alleged was served on Sumac International Ltd. (xii) It was only when M/s Bajaj Hindustan Ltd. failed to retrieve the advance money of Rs. 75 lacs from Sumac International Ltd. in the manner mentioned above, they filed a criminal complaint on 07.03.1994 under sections 424, 420, 465, 467, 468, 471, 474, 409, 120-B IPC in the court of Addl. Judicial Magistrate-I, Lakhimpur Kheri. (xiii) The aforesaid complaint was filed through one Sri R.A. Faruqui, the Chief Engineer of M/s Bajaj Hindustan Ltd. Palia Unit, who was authorized to file the criminal complaint in the Court of law against Sumac International Ltd., its Directors and other officers and also authorized to do and cause to do such acts, deeds and things and execute and cause to be executed all such documents, instruments, writings etc. as required in connection with the said complaint. Along with the complaint, documents were also filed and this Board resolution dated 13.12.1993 was filed as document no.1. (xiv) After filing of the complaint on 07.03.1994, Sri R.A. Faruqui recorded his own statement under section 200 Cr.P.C. (xv) After the statement of only Sri R.A. Faruqui, no other witness was presented by M/s Bajaj Hindustan Ltd. to record their statements in support of the complaint. (xvi) After statement under section 200 Cr.P.C., the Magistrate took the cognizance of the offence and issued the summoning order on 12.04.1994 without taking any evidence under section 202 Cr.P.C. (xvii) After appearance of the accused persons namely, applicant nos. 2 and 3 numerable opportunities were taken by M/s Bajaj Hindustan Ltd. to produce witnesses under section 244 Cr.P.C. (xviii) The applicants no.2 and 3 continued to appear in the court and other co-accused persons of the complaint case namely V.K. Singhal, Kamal Jeet Singh, Rajiv Arora and C.S. Shinde did appear in the Court. (xix) On 02.02.1998, an application was moved on behalf of M/s. Bajaj Hindustan Ltd. in the Court of Magistrate that the case against the applicant nos. 2 and 3 namely, Awadhesh Kumar Verma and O.P. Rastogi be continued and the case against other co-accused persons namely V.K. Singhal, Kamal Jeet Singh, Rajiv Arora and C.S. Shinde be separated. The cases against other co-accused were separated and the case against applicant nos. 2 and 3 continued under section 244 Cr.P.C. (xx) On 04.04.1998, the complainant did produce any evidence under section 244 Cr.P.C. and the case was adjourned for 17.04.1998 for evidence under section 244 Cr.P.C. (xxi) For several years no evidence under section 244 Cr.P.C. were adduced and on 26.07.2013 the Court gave last opportunity to produce evidence under section 244 Cr.P.C. and the case was adjourned to 10.09.2013. (xxii) On 21.01.2015 the Magistrate closed the evidence under section 245 Cr.P.C. (xxiii) On 24.03.2015, an application was moved for recalling the order dated 21.01.2015 and also for giving an opportunity to produce evidence under section 244 Cr.P.C. (xxiv) On 28.01.2016, the applicants moved an application in the Court of Magistrate for discharge under section 245 Cr.P.C. on the ground that the last opportunity was given to the complainant to produce evidence on 26.07.2013 and on 21.01.2015, the evidence under section 244 Cr.P.C. was closed. (xxv) Thereafter, the case was adjourned on several dates and on 19.09.2016 the application dated 24.03.2015 filed by M/s Bajaj Hindustan Ltd. was allowed and once again M/s Bajaj Hindustan Ltd. was allowed to give evidence under section 244 Cr.P.C. on payment of Rs. 2,000/- as cost and the case was fixed for 17.10.2016, while no orders were passed on the application filed by the applicants for their discharge under section 245 Cr.P.C. (xxvi) On 17.10.2016, again the evidence under section 244 Cr.P.C. was produced and an application was moved by M/s Bajaj Hindustan Ltd. through counsel who had no authority for seeking time to deposit the amount of cost and the case was again adjourned to 18.11.2016 for evidence under section 244 Cr.P.C. (xxvii) Even after 19.09.2016, no evidence was submitted by M/s Bajaj Hindustan Ltd. under section 245 Cr.P.C. and again on 19.01.2017, M/s Bajaj Hindustan Ltd. obtained exemption for the appearance in the Court. (xxviii) On 26.04.2017, the Magistrate without giving any reasons allowed the application of M/s Bajaj Hindustan Ltd. submitting the list of fresh witnesses posting the matter for 27.04.2017 for evidence under section 244 Cr.P.C. On 26.04.2017 another order was passed whereby on the inability of the counsel for M/s. Bajaj Hindustan Ltd. to produce evidence on 27.04.2017, the matter was posted for 28.04.2017. While allowing the fresh list of witnesses of M/s Bajaj Hindustan Ltd., the Magistrate did give any reasons. (xxix) On 28.04.2017, the applicants filed objections before the Magistrate to the effect that the Magistrate should first of all examine the witnesses under section 245 Cr.P.C. whose names have been given in the complaint and only thereafter must allow the witnesses of supplementary list to be examined under section 244 Cr.P.C. (xxx) The Magistrate rejected the objection of the applicants vide order dated 28.04.2017, on the ground that the witnesses of supplementary list was present and since the Hon'ble High Court has given one months time to decide the case so it is necessary that whether M/s Bajaj Hindustan Ltd. first produces the witnesses of the complaint list or the supplementary list because that will make any difference in the case. (xxxi) On 26.04.2017, the applicants' brought to the notice of the Magistrate that after the death of Sri R.A. Farooqui, the complainant, no one has replaced him and no specific authorization by the Board of Bajaj company has been placed on record and witnesses submitted along with the complaint have been produced till date even after 23 years as noted in the High Court order to pursue the complaint. Hence the complaint cannot be continued. (xxxii) On 27.04.2017, the Court passed the order to start the evidence. The Magistrate asked M/s Bajaj Hindustan Ltd. to file the necessary authorization in 2 days and allowed them to go ahead with the evidence of fresh witnesses under section 244 Cr.P.C. (xxxiii) On 28.04.2017, objections on behalf of applicants was filed against the submission of fresh list of witnesses by M/s. Bajaj Hindustan Ltd. which was rejected by the Magistrate and since order to commence evidence has already been passed on 27.04.2017, evidence of Sri Munna Lal Chaudhary commenced as complainant with an assurance that he will file his authorization letter of the Board. (xxxiv) Evidence of Munna Lal Chaudhary was completed and during his cross-examination, he admitted being a complainant substituting the dead earlier complainant late Farooqui but towards the end in Q 67, he backed out as a complainant. (xxxv) On 08.05.2017 when no authorization was filed by the Board of Directors of M/s. Bajaj Hindustan Ltd. and in view of the fact that Sri Munna Lal Chaudhary was produced as a complainant who himself denied being a complainant, ultimately the accused filed an appropriate application. The application stated that since no specific authorization to nominate a complainant has been filed by the M/s Bajaj Hindustan Ltd., the complaint cannot continue since it is maintainable in the eyes of law and the accused have to be discharged under section 245 Cr.P.C. The accused filed the above application dated 08.05.2017 on the basis of the orders of the Hon'ble High Court in case no. 7259 of 2016 dated 04.04.2017. (xxxvi) On 09.05.2017, in response to the above application M/s Bajaj Hindustan Ltd. filed a Board resolution dated 21.06.2013 at 4.00 pm appointing one Mr. Jyala working as Factory Manager and authorized him as complainant in the said complaint. The said authorization does come under the purview of authorization as per section 291 of the Companies Act, 1956 for the purpose of the complaint and is similar to as given in 1994 by the Board of Directors of M/s Bajaj Hindustan Ltd. Appointing/authorzing Mr. R.A. Farooqui as a complainant. (xxxvii) The application under Section 245 Cr.P.C. has been rejected vide order dated 17.10.2017 and case was fixed for resuming evidence under section 244 Cr.P.C. on 31.10.2017.
(3.) Mr. Salil Srivastava, learned counsel for the applicants submitted that the complaint reveals that there is forgery in the collaboration agreement with M/s Polymax Inc. Australia, specially in view of the fact that along with the complaint only one page of the agreement has been filed and the entire agreement was filed, whereby the complainant tried to set up the case of forgery while factually the entire agreement was duly signed by the Indian High Commissioner in Australia followed by approval by Government of India before signing of the contract and as such no offence against the present applicants in respect of forgery as alleged can be said to have been made out.;