- (1.) THIS revision arose out of order dated 21.09.2005 passed by the learned Additional Chief Judicial Magistrate, Bidhannagar, North 24 -Parganas in G.R. Case No. 3731 of 2003 renumbered as G.R. Case No. 47 of 2004 under Section 420/477A/406/120B of the Indian Penal Code arising out of South Bidhannagar Police Station Case No. 163 of 2003 dated 12.12.2003 thereby rejecting Naraji (Protest) petition filed by the present petitioner and accepting the final report submitted by the Investigating Agency.
(2.) IN the background of this appeal, the fact in a nutshell is as follows: - The petitioner is the Managing Director of the Company named and styled as Quality Allen Pharma Pvt. Ltd. Bidhannagar Police Station case no. 163 dated 12.12.2003 was instituted on the basis of a complaint lodged by the present petitioner under Section 156(3) of the Code of Criminal Procedure, inter alia, alleging commission of offence under Sections 420/477A/406/120B of the Indian Penal Code by the opposite party nos. 2 to 5 therein. The petitioner is a permanent resident of 51, Dobson Road, Shreekunj, Howrah 711101 and he is a businessman. The petitioner and his family members were approached by the accused nos. 1 and 2 for purchasing the assets and for inter alia running the business of Quality Pharmaceuticals Ltd. (in liquidation). The accused no. 1 represented that he has vast experience in the field of marketing and manufacturing of Alopathic, Homeopathic and Ayurvedic Medicines along with cosmetics. The accused no. 1 further represented at the inception that he being an expert can run the said company in liquidation and the petitioner and his family members need not worry regarding the manufacturing, marketing and smooth functioning of the said company once the same is purchased from the Hon'ble High Court.
(3.) THE accused nos. 1 and 2 are the Managing Director and Director of the company - Quality Allen Pharma Pvt. Ltd. The accused nos. 3 and 4 are the Cashier and the Accountant, respectively of the Group Companies headed by the accused no. 1. The accused no. 1 along with his daughter being the accused no. 2 came down to the petitioner's city office at 51, Nalini Seth Road, Kolkata 700007 and by way of producing various certificates tried to repose trust, faith and confidence within the petitioner. The representations made by the accused and his daughter in fact induced the petitioner to believe that in case he and his family members joined the pharmaceuticals industry with the aid and experience of accused nos. 1 and 2, it could be possible for them to build up a profitable business. Accordingly, the petitioner's father with accused no. 1 entered into a Memorandum of Understanding for jointly participating and purchasing the assets of M/s Quality Pharmaceuticals Ltd. (in liquidation) with a view to run the said unit as a viable pharmaceutical unit. The Memorandum of Understanding was entered on 28th June, 2001 on the following terms: - (a) "The parties hereto shall negotiate and formulate a common strategy to participate and become successful bidder in the auction to be held; (b) The offer to purchase the property will be made in the name of M/S POLLEN LABORATORIES PVT. LTD. Having its registered office at 23C, Wards Institution Street, Calcutta 700006, a closely held company owned by the First Party and his family members; (c) If the said company namely Pollen Laboratories Pvt. Ltd. becomes the successful bidder, then in that event 50% of the share -holding i.e. shares worth of Rs.16,000/ - fully paid up will be transferred or caused to be transferred by the First Party in favour of the Second Party against payment of the said sum by the Second Party to the First Party; (d) In the event the sale is confirmed in favour of Pollen Laboratories Pvt. Ltd., the name of the said company will be changed or rechristened to Jupitar Allen Pharma Pvt. Ltd. which will be jointly owned and managed by the parties hereto on the basis of 50:50 share -holding; (e) The investment that will be required to be made for acquiring and/or processing the assets of company in liquidation through court auction will be made by the parties in equal proportion i.e. 50:50; (f) The party of First Part shall, however arrange to deposit the amount of earnest money that will be required to be deposited along with the offer and/or at the time of confirmation of sale in favour or Pollen Laboratories Pvt. Ltd. as aforesaid; (g) The party of the Second Part shall at the first instance meet all legal and incidental expenses which is tentatively expected to be Rs.15,00,000/ - approx. for the purpose of acquiring and getting peaceful possession of the assets of the company in liquidation; (h) The parties shall jointly evolve the entire strategy and participate in the bid in consultation with each other; (i) In the event of the parties hereto become the successful bidder in the auction in the manner aforesaid, then they will make all endeavour to run the factory as a growing concerned and to manufacture pharmaceutical items in a profitable and successful manner in the interest of both of them; (j) The parties shall be faithful to each other and shall not do anything prejudicing their common interest in the deal." The petitioner's father made all incidental and legal expenses which amounted to Rs.15 lacs and finally by an order dated 02.08.2001, the Hon'ble High Court, Calcutta was pleased to confirm the sale in favour of Pollen Laboratories Pvt. Ltd. Accordingly, 50% of the share holding were transferred in favour of the petitioner and his family members and on or about 02.08.2001 by virtue of the said Memorandum of Understanding the petitioner and his father were incorporated in the Board of Directors of the said company. M/s Quality Pharmaceuticals Ltd. at the time of purchase had assets worth Rs.1.36 crores. After the assets of the said company were purchased at the initial expenditure of the petitioner and his family members, the accused no. 1 and 2 who represented and undertook to obtain the trade license and drug license delayed the same. Around June 2002, the accused no. 1 represented that he intended to shift the registered office of the company from 35, APC Road, Kolkata 700009 to Allen Estate, Krishnapur Road, Kestopur, Kolkata 700102, as there were many employees of his other group companies who hardly had any assignment and as such could be engaged in regular functioning of M/s Quality Allen Pharma Pvt. Ltd. The accused nos. 1 and 2 had no intention from the inception to run the pharmaceuticals business but by way of misrepresentations induced the petitioner and his family members to invest and incur the initial expenditure in purchasing the assets of the said company in liquidation. Total investment was Rs.39,66,000/ - as described in the complaint.;