Rakesh Ranjan Prasad, J. - (1.) INITIALLY this application had been filed for quashing of the first information report of Sonari P.S. Case No. 120 of 2012, registered under Sections 420/406/34 of the Indian Penal Code. While the matter was pending for consideration, charge sheet was submitted upon which cognizance of the offences punishable under Sections 406/420/34 of the Indian Penal Code was taken vide order dated 28/01/2013, against petitioner Nos. 2 to 5. That order was challenged by way of interlocutory application (I.A. No. 1763/2013). Since, the cognizance was not taken against petitioner No. 1 U.S. Parekh, prayer was made that this application be allowed to be confined to petitioner Nos. 2 to 5 only. Before adverting to the submissions advanced on behalf of the parties, the case of O.P. No. 2 -complainant -informant needs to be taken notice of. It appears that the complainant O.P. No. 2 filed a complaint stating therein that petitioner Nos. 2 to 5 being the Directors of a Company (Garg Group) approached the complainant, an authorized signatory and representative of a Company known as M/s. Samridhi Sponge Limited being run by Chandra Group of Companies for sell of the shares held by the petitioners' company and his associate. The proposal given by the petitioners was accepted by the complainant and, hence, agreed to purchase the shares of the Company (Garg Group) on a condition that the complainant's Company would be entitled to nominate its Director in the Board of the said Company. Accordingly, they entered into an Agreement -cum -Memorandum of Understanding (AMOU) on 10/11/2007, stipulating therein that Garg Group will indemnify the complainant for any types of loan related with the Union Bank or Bank of India or any other liability arising out the assessment proceeding under the Income Tax, Vat Tax, Service Tax etc. Further stipulation is that the Garg Group of Company agreed to discharge any kind of contingent and hidden liabilities of the Company up to the date of the agreement and, thereby, both the parties tender to keep post dated cheques of Rs. 50 lakhs in Escrow account to be operated by U.S. Parekh with further stipulation that if the liabilities exceeds Rs. 50 lakhs than the Garg Group of the Company will further pay the balance amount to the complainant -Company and if the liability would be lesser from the aforesaid amount of Rs. 50 lakhs, rest of the amount would be refunded. Further case is that after execution of the Memorandum of Understanding, a demand notice dated 30/10/2008, issued by the Assistant Commissioner, Commercial Taxes, Chaibasa Circle, was received, whereby a demand of Rs. 1508302/ - was raised on account of cancellation of the claim of set off for the financial year 2005 -06. Similarly, a demand notice fox payment of the amount to the tune of Rs. 11,18,624/ - was received against the assessment of the financial year 2005 -06 similarly, other demand notices were received for the financial years 2006 -07, 2007 -08. Thus, total demand, which was raised by the Commercial Tax Department for the financial years 2005 -06 to 2007 -08 was to the tune of Rs. 4670959/ -. Thereupon, the complainant contacted with the accused persons for clearance of the dues but they did not care for it as a result of which the complainant, on account of none issuance of road permit and other permits suffered huge loss.
(2.) ON such allegations, a complaint was lodged, which was registered as C/1 Case No. 2596 of 2012. The said complaint was sent before the concerned police station under Section 156(3) of the Code of Criminal Procedure for its registration and investigation. Upon investigation, charge sheet was submitted against the petitioner Nos. 2 to 5, as stated above, whereupon, Court took cognizance of the offences as aforesaid vide order dated 28/01/2013, which is under challenge. Mr. Kalyan Roy, learned counsel appearing for the petitioners submits that accepting the entire allegations made in the complaint/F.I.R., to be true, no offence is made out either under Section 406 or under Section 420 of the Indian Penal Code as the necessary ingredients for constituting offence either under Section 405 or under Section 415 of the Indian Penal Code are completely lacking. In this regard, it was further submitted that the petitioners have never been alleged to have induced the complainant fraudulently or dishonestly to enter into an Agreement -cum -Memorandum of Understanding, whereby it had been agreed upon that for discharging the liabilities existing prior to the date of Agreement, a post dated cheque of Rs. 50 lakhs would be kept with Mr. Parekh in an Escrow account, to be operated by him. Similarly, as per the agreement, the complainant was also supposed to give a post dated cheque of Rs. 50 lakhs to Mr. Parekh, but the complainant never gave cheque of such amount to Mr. Parekh, whereas the petitioners had deposited the said cheque with Mr. Parekh and, thereby, the petitioners can never be said to have had any intention right from the beginning to defraud the complainant. In this regard, it was further submitted that though according to the case of the complainant, certain liabilities were there, which were supposed to be discharged by the petitioners, which have not been discharged by the petitioners, but for that the petitioners would not be liable to be prosecuted criminally as it becomes a case of mere breach of agreement, which can be enforced by the complainant by bringing civil suit and under the circumstances the order taking cognizance is fit to be quashed.
(3.) AS against this, Mr. Sinha, learned counsel appearing for O.P. No. 2 submits that it is not a simple case of breach of the terms and conditions of MOU as the petitioners had had dishonest intention right from the beginning to deceive the complainant as the petitioners never did disclose about the liabilities of which the petitioners were having knowledge but they suppressed it and by suppressing this fact they made the complainant to enter into an agreement. Further, the fraudulent intention get surfaced from the facts that when the complainant did receive the demand notices, whereby demand had been raised, which was prior to the date of the agreement, the complainant asked the petitioners to make payment but they refused. From which it can easily gathered that inner intention of the petitioners was to deceive the complainant. In this regard, learned counsel placed his reliance upon the observations made in paragraphs 105, 106 and 107 of a decision rendered in a case of "Sahara India Real Estate Corporation & Others versus Securities and Exchange Board of India (SEBI) [ : (2013) 1 SCC 1]". Learned counsel has further placed his reliance over a decision rendered in a case of "R. Venkatkrishnan versus Central Bureau of Investigation [ : (2009) XI SCC 737]".;