R.K. Bag, J. - (1.) The petitioner has preferred this revision under Sec. 401 read with Sec. 482 of the Code of Criminal Procedure praying for quashing of the proceeding of Case No. C -10440 of 2012 under Ss. 120B/406/420/471 of the Indian Penal Code pending before the court of learned Metropolitan Magistrate, 16th Court, Calcutta. The petitioner has also challenged the order dated March 18, 2013 passed by learned Metropolitan Magistrate, 16th Court, Calcutta, in the said case.
(2.) The opposite party - Srei Infrastructure Finance Ltd. (hereinafter referred to as the "complainant company") filed a petition of complaint before the court of learned Chief Metropolitan Magistrate, Calcutta, against the petitioner - K.S. Oils Ltd. (hereinafter referred to as the "petitioner company") and 11 others in order to prosecute them for the offence under Sec. 420/467/471/477/120B of the Indian Penal Code. Learned Chief Metropolitan Magistrate took cognizance of the offence and transferred the case to the learned Metropolitan Magistrate, 16th Court, Calcutta. On July 25, 2012, learned Metropolitan Magistrate examined the complaint under Sec. 200 of the Code of Criminal Procedure and called for report under Sec. 202 of the Code of Criminal Procedure from the Officer -in -Charge of Hare Street Police Station, Calcutta. On March 18, 2013 one Sub -Inspector of Police of Hare Street Police Station submitted a report under Sec. 202 of the Code of Criminal Procedure, which was considered by learned Magistrate for issuance of process against the petitioner company and other co -accused persons for the offence under Sec. 406/420/471/120B of the Indian Penal Code. The said order dated March 18, 2013 passed by learned Magistrate is under challenge in this revision.
(3.) The contents of the petition of complaint disclose that the petitioner company is the accused No. 1 and the Managing Director of the said company is the accused No. 2. The accused No. 3 to 5 mentioned in the petition of complaint are the whole time Directors of the petitioner company and the accused No. 6 to 11 are other Directors of the petitioner company. The accused No. 12 being the Company Secretary of the petitioner company is also impleaded as an accused in the petition of complaint. It is alleged in the petition of complaint that the Company Secretary, one whole time Director and the Managing Director of the petitioner company approached the complainant company for providing loan of Rs. 100 crores for financing infrastructure components in the plants at Guna, Ratlam and Kota in the State of Madya Pradesh and Rajasthan respectively. The averments made by the complainant company in the petition of complaint indicate that the petitioner company assured the complainant company that it would repay the loan within the stipulated period of time and they would hypothecate sufficient moveable assets including 92 wind turbines in the State of Madhya Pradesh, Rajasthan, Tamilnadu and Gujarat as security for due repayment of the loan. It is alleged that on the basis of the representations and assurances given on behalf of the petitioner company, the complainant company sanctioned financial assistance of Rs. 100 crores in favour of the petitioner company for financing infrastructure components in its plants in the state of Madhya Pradesh and Rajasthan on August 16, 2010 vide reference No. Srei/Core/KSO/001. On August 23, 2010 the complainant company entered into an agreement with the petitioner company. It is alleged that the terms and conditions of the said loan agreement indicate inter alia that the petitioner company will create a charge on 92 wind turbines of the said company situated in the state of Madhya Pradesh, Rajasthan, Tamilnadu and Gujarat with minimum capacity of 78 M.W. for the said loan and the charge will be subservient to the other charges in favour of the existing lenders. On August 23, 2010 the petitioner company executed one deed of hypothecation in favour of the complainant company by creating charge of 92 wind turbines to secure due repayment of loan. It is further alleged in the petition of complaint that on August 23, 2010 the Company Secretary of the petitioner company forwarded one email to the complainant company attaching a scanned copy of the challan purportedly issued by the Registrar of Companies indicating the particulars of the charges created in favour of the complainant company by deed of hypothecation dated August 23, 2010. It is further alleged that the challan generated from the system on August 23, 2010 was valid for a period of seven days i.e. upto August 30, 2010. It is also alleged that the charge required to be registered in Form No. 8 in the website of Ministry of Company Affairs was not done within August 30, 2010.;