- (1.) All these six applications were analogously heard and are being disposed of by this common order as all these applications between the same parties involve identical question of law and facts.
(2.) C. R. R. - 2094/99 to 2096/99 were filed by the accused petitioners for quashing the complaint case No. 208/99, complaint case No. 209/99 and complaint case No. 210/99 pending before the learned C. J. M. , Alipore, South (24) Pgs. on the ground that none of these complaints disclosed commission of any offence. Facts of C. R. R. 2094/99 in brief are that complainant O. P. No. 2 Amal Bhattacharji lodged a complaint being complaint case No. 208/99 before the said C. J. M. against the petitioners alleging, inter alia, that Amal Bhattacharji is Director of City Scape Developers Private Limited, which is private limited company having its registered office at Calcutta.
(3.) Petitioner No. 1 Arun Bhutoria was made a nominated director in the Board of the City Scape Developers Private Ltd. sometime in 1993. He was so nominated by Akla Builders Private Ltd. being a Private Ltd. Company incorporated under the Companies Act. Said Akla Builders Private Ltd. entered into a development agreement with the said City Scape Developers Private Ltd. when the later company was constructing a market complex and construction of one block of the said market complex was almost at a finishing stage and the other block of the said market complex was also in the advanced stage of construction. Said market complex had only two blocks apart from a staff quarter. Accused petitioner No. 1 Arun Bhutoria was taken in the Board of City Scape Developers Private Ltd. in terms of the said agreement dated 7.8.92 with the stipulation that on fulfilment of the terms and conditions of the said agreement, term of the directorship of the accused petitioner No. 1 would come to an end. Later on a suit was filed for a declaration that the said agreement is void and unenforceable in law. By virtue of a resolution dated 21.9.95 of the said City Scape Developers Private Ltd. , accused petitioner No. 1 Arun Bhutoria was authorised as Director of the Company to make, enter into, execute and deliver to the M/s. 20th Century Finance Corporation Ltd. all documents including loan agreement, promissory notes with regard to hire agreement for purchase of a vehicle i. e. Cielo Car from Daewoo Motors. In accordance with the said resolution City Scape Developers Private Ltd. took finance of Rs. 6,42,000/- for purchase of the said Cielo Car and made an initial deposit by cheque of Rs. 1,61,000/- only as well as further charges of Rs. 40,000/- and all the amounts towards insurance, road tax etc. The car finance so taken was to be repaid with interest in 36 equal monthly instalments. Accused petitioner No. 1 Arun Bhutoria executed the hire purchase agreement on behalf of the City Scape Developers Private Ltd. and the Company duly paid the said initial amounts as already stated above and other charges. City Scape Developers Private Ltd. also handed over 36 post dated cheques to Arun Bhutoria payable to 20th Century Finance Corporation Ltd. month by month for depositing the same in advance with the said 20th Century Finance Corporation Ltd. towards repayment of the said loan including all interest thereon. All the said 36 cheques were post dated month by month commencing from 22.9.95 and ending on 10.8.98 drawn on the Bank account of the said City Scape Developers Private Ltd. with the Bank of Maharashtra, S. P. Mukherjee Road as monthly instalments towards repayment of the loan for the said car. On or about 5.11.95 accused petitioner No. 1 Arun Bhutoria signed the hire purchase agreement as representative of City Scape Developers Private Ltd. But the copy of the said hire purchase agreement between the City Scape Developers Private Ltd. and 20th Century Finance Corporation Ltd. and all other related documents were not received from the car finance company. However, the complainant ultimately obtained xerox copies of the aforesaid documents from the 20th Century Finance Corporation Ltd. . But, accused petitioner No. 1 Arun Bhutoria never furnished the complainant or his aforesaid City Scape Developers Private Ltd. with copies of the said hire purchase agreement nor other documents regarding scheme of repayment of the said loan in order to keep the company and other directors thereof in dark aboutsuch transactions. It has further been alleged that said accused petitioner No. 1 Arun Bhutoria falsely represented that the said transaction was not materialised. At the instance of accused petitioner No. 1, said City Scape Developers Private Ltd. appointed accused petitioner No. 4, Debendra Kumar Rustogi as auditor. As a matter of fact said auditor was a close friend of accused petitioner No. 1 Arun Bhutoria. Petitioner No. 1 never intimated the said City Scape Developers Private Ltd. that the said transaction was in fact materialised and that he actually obtained delivery of one Cielo A. C. Petrol Car particulars whereof are given in the complaint itself. Its registration No. 1 is W. B. 02E-1717 and fraudulently and dishonestly in criminal conspiracy with other accused concealed the said fact. Petitioner No. 1 with dishonest and fraudulent intention never informed the said City Scape Developers Private Ltd. that he actually took delivery of the said vehicle. Whenever questioned by the other directors of the said City Scape Developers Private Ltd. accused petitioner No. 1 Arun Bhutoria falsely represented that he did not take delivery of the said vehicle at all and the loan transaction with the 20th Century Finance Corporation Ltd. did not materialise. Though asked for by other directors of the City Scape Developers Private Ltd. accused petitioner No. 1 Arun Bhutoria did not return the 36 post dated cheques earlier issued in favour of the said financier company. Said accused petitioner No. 4 Debendra Kumar Rustogi also did not return the relevant documents and papers to the said City Scape Developers Private Ltd. nor did he prepare accounts of the company. The City Scape Developers Private Ltd. repeatedly demanded for all relevant papers/documents and 36 post dated cheques and yet neither the accused petitioner No. 1 nor the said auditor returned them till date. It is also alleged in the said complaint that towards later part of November 1998, said 20th Century Finance Corporation Ltd. sent back certain post dated cheques of another transaction between the same parties relating to purchase of another car of the company to the banker in which said petitioner No. 1 Arun Bhutoria was authorised to enter into agreement and execute all relevant papers representing the said City Scape Developers Private Ltd. but certain cheques in respect of such transaction were not honoured by the bank and the bank of the complainant company sought for clarification as to whether those cheques should be honoured or not. Only then it occurred that the cheques given in connection with purchase of Cielo car and handed over to accused petitioner No. 1 for payment of the loan and interest thereon in 36 instalments to the car finance company had been presented from time to time to the bank of the said City Scape Developers Private Ltd. and all such cheques were duly honoured and a total payment amounting to Rs. 10,46,520.00 was made as per the post dated cheques between the period of September, 1995 to August, 1998 although said accused petitioner No. 1 all along falsely represented that he had not handed over the said cheques to the finance company as the transaction did not materialise and similarly accused No. 4 being the auditor entered into a criminal conspiracy with other accused petitioners and concealed the fact to the company to avoid detection of such fraudulent acts. Only after this incident, enquiries were made on behalf of the City Scape Developers Private Ltd. and relevant documents were collected and it was found therefrom that in fact accused petitioner No. 1 representing the company duly executed the hire purchase agreement and handed over all cheques to the car finance company and in fact he took delivery of the Cielo car in November, 1995 under delivery request issued by the said finance company. Registration No. of the Cielo car is W. B. 02E-1717. Said accused petitioner No. 1 took delivery of the Cielo car on behalf of the City Scape Developers Private Ltd. as its director/trustee/agent. Said accused petitioner No. 1 Arun Bhutoria fraudulently instructed the finance company that in case of absence of the hirer (City Scape Developers Private Ltd. ) they should contact accused No. 4 Mr. Debendra Rustogi being the auditor or other accused petitioners and this was done deliberately to conceal the fact about the completion of the entire transaction with the said finance company.;