M/S. RIGHT HEALTH PLATTER PRIVATE LIMITED v. STATE BY INVESTIGATING OFFICER AND DEPUTY SUPERINTENDENT OF POLICE

SRI. DINESH DALMIA @ DINESH KUMAR S/O KAILASH PATI DALMIA AGED ABOUT 63 YEARS RESIDING AT 7A STERLING AVENUE, 1ST CROSS STREET, NUNGAMBAKKAM CHENNAI – 600 034. (BY SRI DHYAN CHINNAPPA, SR.ADVOCATE FOR SRI HITESH KUMAR, ADVOCATE) ... PETITIONER 4 AND:

STATE BY HSR POLICE STATION REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU.

STATE BY INVESTIGATING OFFICER AND DEPUTY SUPERINTENDENT OF POLICE ECONOMIC OFFENCES DIVISION, CARTLON HOUSE, PALACE ROAD, CID, BENGALURU - 01 REPRESENTED BY SPECIAL PUBLIC PROSECUTOR.

M/S. ZETWERK MANUFACTURING BUSINESS PVT. LTD., REPRESENTED BY MR.JOHN THARIAN THALIATH (AUTHORISED SIGNATORY) ORIENTAL TOWERS, HSR LAYOUT, NO.461 1ST FLOOR AND 2ND FLOOR, 4TH SECTOR, 17TH CROSS, BENGALURU – 560 102. ... RESPONDENTS (BY SMT.SOWMYA R., HCGP FOR R-1 AND R-2; SRI C.V.NAGESH, SR.ADVOCATE A/W SRI CHINMAY J.MIRJI, ADVOCATE FOR R-3) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE CR.NO.0002/2024 REGISTERED INVESTIGATION DEPARTMENT BENGALURU BY THE CRIME (TRANSFERRED FROM HSR POLICE STATION AT BANGALORE AS FIR 0414/2023) PENDING ON THE FILE OF THE 1ST ADDL. CMM COURT, NRUPATUNGA ROAD, BENGALURU, AS AGAINST THE 5 PETITIONER FOR THE OFFENCES P/U/S 417, 419, 420, 465, 468, 471, 34 OF IPC. THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 06.08.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA CAV ORDER The petitioners in these petitions call in question registration of crime in Crime No.2 of 2024 registered by the CID, Bangalore for offences punishable under Sections 417, 419, 420, 465, 468, 471 r/w 34 of the IPC. The petitioners in Criminal Petition No.4022 of 2024 are accused No.1, 5 and 6 and petitioner in Criminal Petition No.5002 of 2024 is accused No.2 in the aforementioned crime. Since both these petitions arise out of the same crime, they are taken up together and considered by this common order.

2. Facts adumbrated are as follows:- The 3rd respondent is the complainant. The genesis of the problem is that a complaint comes to be registered on 13-09-2023 6 by the complainant alleging that in the month of January 2022, accused No.2 represents himself to be the top management and founder of one M/s Right Health Platter Private Limited, the 1st petitioner and had proposed that the complainant to become a partner in the project to aid procurement of new equipment for their newly established facilities to achieve the goals at an estimated transaction of 25 million USD. Based on the aforesaid desire of generation of such amount, the transaction structure was fortified by the complainant and the 1st petitioner promised a back to back arrangement with the complainant and Avemore Private Limited to pay the amounts due as they would be paid by the complainant. Essentially Avemore Private Limited would place a 90 days back to back purchase order on the complainant and would immediately place the purchase order on the 1st petitioner on an immediate payment term basis. It is then the 1st petitioner ships the goods directly to the end to end customer of Avemore Private Limited. The contract was between Zetwerk, Singapore, Avemore Private Limited and the 1st petitioner. 7

3. On 12-01-2022 orders were placed on Zetwerk, Singapore and payments were made by Avemore Private Limited. In turn the orders were made on the 1st petitioner and payments were made to the 1st petitioner by the complainant, on certain terms. But, payments stopped coming from Avemore Private Limited for shipments that took place from February 2023. The surprised complainant then realized that the payments were not being made in terms of what was agreed. Therefore, it stopped placing orders on the 1st petitioner. Total invoices for USD 16,406,168.62 were raised by the complainant on Avemore Private Limited and approximately 4.7 million is said to have been misappropriated between Avemore Private Limited and the 1st petitioner. This is the broad allegation in the complaint. The complaint then becomes a crime in Crime No.2 of 2024 registered for the aforesaid offences. The registration of the crime had led the petitioners to this Court in the subject petition. This Court in terms of its order dated 21-06-2024 stayed further investigation qua the petitioners. When the matters were listed for admission before Court, with consent of parties, the matters were taken up for their final disposal. 8

Heard Sri Dhyan Chinnappa, learned senior counsel appearing for the petitioners in both the petitions; Smt. Sowmya R, learned High Court Government Pleader for respondents 1 and 2 and Sri C.V.Nagesh, learned senior counsel appearing respondent No.3.

The learned senior counsel for the petitioners would submit that a pure commercial transaction is given a colour of crime. All the allegations that are now made have sprung out of an agreement entered into between the parties. In a transaction concerning agreement there cannot be offences punishable under Sections 417, 419, 420 or offences punishable under Sections 465, 468 and 471 of the IPC. The offences in all deal with cheating and forgery. Cheating and forgery cannot be imagined to be subsisting in the case at hand, is the emphatic submission upon which the learned senior counsel seeks quashment of registration of crime. The learned senior counsel would further contend that the threshold bar of entertaining the complaint before the jurisdictional police in India should be first decided, as the Company which entered into a contract with the petitioners was a Company based in Singapore. 9 Nothing has happened within the local limits of Bangalore for the Police to register the crime. He would rely upon several judgments of the Apex Court and that of this Court in support of his contentions.

Per contra, the learned senior Counsel Sri C.V. Nagesh representing the 3rd respondent/complainant would vehemently refute the submissions and terms these petitioners to be international fraudsters. The learned senior counsel would contend that the complaint does make out a prima facie offence of cheating and forgery, as the complaint is in great detail. It is not that the allegations have sprung from air. The petitioners are known to be committing fraud on every soil. He would place on record certain documents of crime being registered by the jurisdictional police at Chennai, orders passed against them by SEBI and certain orders passed by the District Court, New Jersey, USA in 2006. He would submit that investigation in the least in such cases must be permitted, as in a given case, even if it is arising out of a commercial transaction cheating can be present. The learned senior counsel would clarify that the Company that was lured to entering 10 into this project is Zetwerk India whose office is in Bangalore. Therefore, the complainant has registered the complaint before the jurisdictional police station.

The learned High Court Government Pleader would submit that investigation should be permitted to continue as it was in progress and investigated to a large extent when the investigation was stayed.

I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

The contract between the parties is a matter of record. Since the entire issue has now sprung from the complaint, I deem it appropriate to notice the complaint. It reads –

13th Sep.2023 Bangalore To The Station House Officer, HSR Police Station, Bangalore. From: 11 Zetwerk Manufacturing Businesses (P)Ltd., Oriental Towers, No.461, 1st Floor & 2nd Floor, 4th Sector, 17th Cross, HSR Lay-out, Bengaluru, India-560 102. Represented by its Authorized Signatory, Mr. John Tharian Thaliath, S/o Tharian Thaliath, Aged about 44 years, Phone No.9945482004, Dear Sir, Subject: Complaint against M/s Avemore PTE Ltd., Mr. Gopal Padia, Mr. Dinesh Kumar, M/s Right Health Platter Private Limited, Mr. Ramnath Arumugam, Mr. Yekulu Venkata Subbaiah Murali Babu for offences punishable under Sectons 120A, 409, 417, 419, 420, 465 and 468 of the Indian Penal Code, 1860. -- I, John Tharian Thaliath, S/o Tharian Thaliath, Aged about 44 years, am currently working as the General Counsel at Zetwerk Manufacturing Businesses Private Limited, having its office at Oriental Towers No.461, 1st Floor & 2nd Floor 4th Sector, 17th Cross, HSR Lay-out, Bengaluru, India-560 102 (Zetwerk India

).

3. It is pertinent to note that, Mr. Dinesh, had represented to Zetwerk India that the end customers of RHP were based out of Dubai and the monies would only be paid to Zetwerk India once the monies would be released from the Dubai end customers. Since Zetwerk India was hesitant to enter into any commercial transaction where payments were dependent on RHP getting paid by its end customer, as an alternative plan Mr. Dinesh had proposed to set up a meeting between Zetwerk India and one of the directors of RHP Mr. Gopal Padia. Mr. Dinesh claimed that Mr. Goopal Padia held the position of director at RHP and also served as the Managing Director and Proprietor of M/s Avemore PTE Ltd., a company incorporated under the laws of the Republic of Singapore (“Avemore”). Further, Mr. Dinesh has proposed that, since Zetwerk India is unwilling to 13 enter into any commercial arrangements which are conditional on payments from end customers, Avemore will take on that role and will place purchase orders on Zetwerk India and in turn Zetwerk India should provide a certain number of days of credit to Avemore which will not be conditional on getting paid by Avemore’s end customers. Transactions started in this manner which is more clearly

4. represented in the below Diagram: Avemore Purchase Order (90 Days payment terms) > Zetwerk places back to back PO Right Health Platter immediate cash and carry > Right Health Platter (RHP) (supplier) directly Avemore and customer Dubai From 12th January 2022 to 1st March 2023, total purchase order worth USD 19,270,254.45 was placed by Avemore on Zetwerk and Zetwerk in turn placed back to back purchase order on Right Health Platter. Payments were made to Right Health Platter by Zetwerk on an immediate payment term basis, but payments stopped coming from Avemore for shipments that took place from February, 2023 onwards. In April, 2023 when Zetwerk realized that payments are not being made as per terms, it stopped placing orders on Right Health Platter immediately. In total, invoices for USD 16,406,168.62 was raised by Zetwerk and an amount of approximately USD 4.7 million has been misappropriated through collusion between Avemore and Right Health Platter. Our audit team is in the process of ascertaining whether more amount has been siphoned off conspiracy and misappropriation. collusion, through However, to the surprise of Zetwerk, in August 5. 2023 HDFC Bank executives had contacted Zetwerk seeking information on certain list of invoices (Attached as Annexure-B) raised by RHP on Zetwerk Singapore, for which RHP had received funds from HDFC Bank by the process of invoice discounting. Upon verification it has 14 come to Zetwerk’s knowledge that RHP has discounted invoices before and after April 2023. This can only be done through fabrication and forgery of documents and allegedly in the following ways. a) b) For invoices prior to April, 2023, RHP ought to have forged and fabricated the invoices submitted to HDFC, as the invoices to Zetwerk were on the basis of “immediate payments terms” and hence such invoices would not be eligible for discounting. For invoices post April 2023, RHP ought to have forged and fabricated the invoices as no Purchase Orders were placed by Zetwerk on RHP platter after April, 2023 and hence there cannot be any invoices during this period.

6. To induce Zetwerk into the transaction model set out in para-4, Mr. Dinesh had come to Bangalore to set up a meeting with Zetwerk India’s executives to introduce Mr. Gopal. Mr. Dinesh highlighted Mr. Gopal’s significant role in RHP’s export activities and emphasized the close interconnection between Avemore and RHP, stating that RHP had a subsidiary like status with Avemore. Zetwerk India accepted Mr. Dinesh’s assertions, leading to the arrangement of a Zoom video call involving Zetwerk India. Mr. Gopal and Mr. Dinesh, facilitated through Mr. Dinesh’s laptop. Further

7. the above mentioned call, Mr. Gopal represented that he holds positions as both a director and shareholder, in RHP along with the other directors of RHP i.e., Mr. Ramnath Arumugam (“Ramnath”) and Mr. Yekulu Venkata Subbaiah Murali Babu (‘Venkata Subbiah”), who are all involved in the day to day activities of RHP and are well aware of all the transactions that is happening in RHP. Mr.. Gopal insisted on streamlining business transactions in United States Dollars, proposing that Avemore engage with Zetwerk’s Singapore entity which is a 100% subsidiary of Zetwerk India, known as Zetwerk Manufacturing SG PTE Ltd., a company incorporated under Singaporean laws with its registered office at 73 Upper Paya Lebar Road # 08-01L, Centro, Blanco, Singapore-534818 (” Zetwerk Singapore”), stating that he aims to enhance convenience and facilitate smoother transactions. 15 (Zetwerk India and Zetwerk Singapore are collectively referred to as “Zetwerk Entities”) communication and its obligations, with

8. Upon being induced by the representations and promises made by Mr. Dinesh, Mr. Gopal, RHP and Avemore to enter into a business relation with them as proposed, Zetwerk Entities decided to collaborate with them as stated by them. In January 2022, Zetwerk, Singapore along with Zetwerk India began fulfilling transactions being managed by Zetwerk India. However, in furtherance to their criminal conspiracy against Zetwerk Entities the accused persons had initially made certain payments to the Zetwerk Entities in order to gain the trust of Zetwerk Singapore and Zetwerk India. From February 2023 onwards Right Health Platter, Dinesh Kumar, Gopal Padia and Avemore colluded and criminally conspired to cheat and misappropriate a sum of approximately USD 4.7 million which is legally and rightfully payable to Zetwerk Entities, thereby causing wrongful loss to Zetwerk Entities and making unlawful gains for themselves. Further, the parties have also committed criminal breach of trust against Zetwerk Entities by misappropriating the money and underlying goods.

9. I would like to bring to your knowledge that the criminal intent of the accused persons became absolutely clear upon receiving the e-mail dated 09-08-2023 from Mr. Gopal stating that he had sought to completely distanced himself from any association with the transaction between Zetwerk Entities and RHP, he has stated that all the actions were carried out by Mr. Dinesh and RHP hold no legal implications on him or Avemore, inspite of the fact that Purchase Orders in question were placed by Avemore and Goods were received by Avemore. This is nothing more than a pre-meditated strategic more by Mr. Gopal in collusion with the other accused to evade accountability and play the game of shifting business on each other. I would like to bring to your knowledge that, Zetwerk 10. India being suspicious of the acts of the accused persons had conducted an internal enquiry wherein it has been revealed that Mr. Dinesh was never a founder or shareholder of RHP, whereas he along with the directors of RHP i.e., Mr. Gopal, Mr. Ramnath forged/fabricated and Mr. Venkata Subbiah, have used 16 documents to cheat Zetwerk Entities and HDFC Bank. Further, it has come to our knowledge that, Avemore is nothing but a sister concern of RHP which the accused persons have been using to cheat and defraud many Indian and foreign business entities by inducing them to do business with the accused persons and thereafter misappropriating fund from these trusting business entities thereby causing wrongful loss to them and making unlawful gains for themselves. The accused persons are habitual offenders having many such entities under their names i.e., Arrowline Organic Products Private Limited etc. and have been cheating and misappropriating funds using many other business entities. Mr. Dinesh and Mr. Gopal have many criminal cases pending against them and are habitual offenders.

During our conversation with HDFC, it also became evident that many financial institutions have been defrauded by Avemore, Dinesh Kumar, Gopal Padia and Right Health Platter. An indicative list is below:

4. 5 6 7

8. 9 HDFC Bank Axis Bank Fincare Small Finance Bank. Drip Capital Bank of Maharashtra IndusInd Bank SBI Global Factors Bizongo Ugro Capital 10 Vivriti Capital 11 Aditya Birla Finance 12 Moglix (Miglix Labs Unknown currently Unknown currently Unknown currently Unknown currently Unknown currently Unknown currently Unknown currently Unknown currently Unknown currently Unknown currently Unknown currently Unknown 17 13 India) ECGC Factors 14 Credlix (Magli Labs Asia) 15 Ninjacart currently Unknown currently Unknown currently

The above-named criminal acts of the accused person is punishable under Sections 120B, 409, 417, 419, 420, 465 and 468 and other relatable offences punishable under the Indian Penal Code, 1860. We, therefore, request you to register our complaint against the accused persons named above for committing the offences of criminal conspiracy, cheating, misappropriation, fraud and such other offences which are made penal under the provisions of the Indian Penal Code, Investigate into it and bring them to books by initiating such action as is warranted against them, for which act of goodness on your part, we shall ever remain grateful to you. Yours faithfully, For Zetwerk Manufacturing Businesses Private Limited Sd/- Authorised Signatory.” (Emphasis added) In the light of the submission that the complaint was not entertainable before the jurisdictional Police, I deem it appropriate to notice the contents of the complaint to know whether it would clothe jurisdiction or otherwise. Paragraphs 2, 3 and 5 of the complaint narrate that accused No.2, petitioner in Crl.P.No.5002 of 2024 had represented to Zetwerk, India that the end customers were based in Dubai and moneys would only be paid to Zetwerk, India once it is realized from Dubai customers. Zetwerk, India has 18 its office at Bangalore. The complaint, therefore, narrated the circumstances which led to entering into an agreement with the petitioners all of which happen in Bangalore. Therefore, the jurisdictional Police have rightly entertained the complaint. It is not that the crime suffers from want of jurisdiction. There are other copious references to the assurances and talks that were held between the petitioner/Company, its office bearers and the complainant. Answering jurisdictional issue against the petitioners, I now proceed to notice whether the offences are made out or they arise out of a commercial transaction/agreement.

The submission of the learned senior counsel for the complainant is that the complainant was lured to enter into a contract with the petitioner/Company and by the office bearers of the Company with several hundreds of crores. Nothing has come about. A deeper digging of the matter by the complainant would reveal that accused No.2 was never a founder or share holder of accused No.1 and he has forged the signatures on the documents to demonstrate that he is the founder only to cheat Zetwerk entities and HDFC Bank. Both Avemore Private Limited and accused No.2 19 are said to have defrauded HDFC Bank and other financial institutions. It is brought out in the complaint only to demonstrate that the petitioners have criminally conspired and misappropriated a sum of 4.7 million USD which is claimed to have been belonging to Zetwerk entities. Therefore, the crimes are so laid against the petitioners.

11. The offences that are alleged are the ones punishable under Sections 417, 419, 420 of the IPC all of which deal with cheating. What is cheating is defined in Section 415 of the IPC. Section 415 reads as follows: “415. Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. Explanation.—A dishonest concealment of facts is a deception within the meaning of this section.” Section 415 mandates that the accused should have lured the victim into a transaction with dishonest intention right from the inception. The complaint so laid which is in great detail prima facie 20 makes out an offence of cheating, as ingredients of Section 415 are undoubtedly present in the case at hand. Luring of the complainant by the petitioners is also borne out in the complaint. Therefore, prima facie, the offence of cheating is undoubtedly met in the case at hand.

12. Insofar as other offences are concerned, paragraphs 8,9 and 10 of the complaint bring out certain forgery being done by accused No.2 to project himself to be the founder of accused No.1 and based upon the said representation many events of using the position has happened. Therefore, investigation in the least must ensue in the case at hand. Reference that is made by the learned senior counsel for the petitioners to judgments in DR. YUVARAJ SINGH GHELOT V. STATE OF KARNATAKA – Criminal Petition No.8142 of 2020 decided on 24-08-2022 and M.DIVYALAKSHMI V. STATION HOUSE OFFICER – Criminal Petition No.5788 of 2021 decided on 05-03-2022, would lend no assistance to the petitioners at this juncture. The facts in the case of DR. YUVARAJ SINGH GHELOT arose out of a contract between the parties and the matters were pending adjudication before the civil Court. 21 Simultaneously a crime was registered, notwithstanding the proceedings pending before the civil Court with regard to using of the trade mark. It is, therefore, the Court concluded that a civil dispute was given a colour of crime. The other judgment in the case of M.DIVYALAKSHMI arose out of a Joint Development Agreement and repudiation of that agreement by the accused therein. Therefore, both the judgments are distinguishable on the facts obtaining in the case at hand without much ado.

The submission of the learned senior counsel for the 3rd respondent/complainant that the petitioners are involved in multiple crimes all over also requires to be noticed. An investigation is pending in Crime No.71 of 2024 before the City Crime Branch, Chennai; it is registered on 06-04-2024. The allegation is that these petitioners have defrauded the complainant Company there on identical representation. Long ago, it appears that indictments were brought against accused No.2 and the matter was placed before the Grand Jury of the District of New Jersy, USA terming accused No.2 as a conspirator. The conspiracy is the allegation against accused No.2 and the claim was for several million dollars. The indictments 22 resulted in certain forfeiture allegations as well. These submissions are only noted, but need not bear any consideration at this juncture, as the issue revolves around maze of facts and this Court would not lend its protective arm to these petitioners by interdicting or quashing the proceedings at this juncture.

9.2. In Dhruvaram Sonar [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 : (2020) 3 SCC (Cri) 672] after considering the decisions of this Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , it is held by this Court that exercise of powers under Section 482 CrPC to quash the proceedings is an exception and not a rule. It is 24 inherent further observed that jurisdiction under Section 482 CrPC though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in the section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 CrPC. Similar view has been expressed by this Court in Arvind Khanna [CBI v. Arvind Khanna, (2019) 10 SCC 686 : (2020) 1 SCC (Cri) 94] , Managipet [State of Telangana v. Managipet, (2019) 19 SCC 87 : (2020) 3 SCC (Cri) 702] and in XYZ [XYZ v. State of Gujarat, (2019) 10 SCC 337 : (2020) 1 SCC (Cri) 173] , referred to hereinabove.

9.3. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.

10. The High Court has failed to appreciate and consider the fact that there are very serious triable issues/allegations which are required to be gone into and considered at the time of trial. The High Court has lost sight of crucial aspects which have emerged during the course of the investigation. The High Court has failed to appreciate and consider the fact that the document i.e. a joint notarised affidavit of Mamta Gupta Accused 2 and Munni Devi under which according to Accused 2 Ms Mamta Gupta, Rs 25 lakhs was paid and the possession was transferred to her itself is seriously disputed. It is required to be noted that in the registered agreement to sell dated 27- 10-2010, the sale consideration is stated to be Rs 25 lakhs and with no reference to payment of Rs 25 lakhs to Ms Munni Devi and no reference to handing over the possession. However, in the joint notarised affidavit of the same date i.e. 27-10-2010 sale consideration is stated to be Rs 35 lakhs out of which Rs 25 lakhs is alleged to have been paid and there is a reference to transfer of possession to Accused 2. Whether Rs 25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said document and payment of Rs 25 lakhs as mentioned in the joint notarised affidavit dated 27-10-2010. It is also required to be considered that the first agreement to sell in which Rs 25 25 lakhs is stated to be sale consideration and there is reference to the payment of Rs 10 lakhs by cheques. It is a registered document. The aforesaid are all triable issues/allegations which are required to be considered at the time of trial. The High Court has failed to notice and/or consider the material collected during the investigation.

11. Now so far as the finding recorded by the High Court that no case is made out for the offence under Section 406 IPC is concerned, it is to be noted that the High Court itself has noted that the joint notarised affidavit dated 27-10-2010 is seriously disputed, however as per the High Court the same is required to be considered in the civil proceedings. There the High Court has committed an error. Even the High Court has failed to notice that another FIR has been lodged against the accused for the offences under Sections 467, 468, 471 IPC with respect to the said alleged joint notarised affidavit. Even according to the accused the possession was handed over to them. However, when the payment of Rs 25 lakhs as mentioned in the joint notarised affidavit is seriously disputed and even one of the cheques out of 5 cheques each of Rs 2 lakhs was dishonoured and according to the accused they were handed over the possession (which is seriously disputed) it can be said to be entrustment of property. Therefore, at this stage to opine that no case is made out for the offence under Section 406 IPC is premature and the aforesaid aspect is to be considered during trial. It is also required to be noted that the first suit was filed by Munni Devi and thereafter subsequent suit came to be filed by the accused and that too for permanent injunction only. Nothing is on record that any suit for specific performance has been filed. Be that as it may, all the aforesaid aspects are required to be considered at the time of trial only.

12. Therefore, the High Court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was exercising the appellate jurisdiction and/or conducting the trial. The High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC. 26

13. Even the High Court has erred in observing that original complaint has no locus. The aforesaid observation is made on the premise that the complainant has not placed on record the power of attorney along with the counter filed before the High Court. However, when it is specifically stated in the FIR that Munni Devi has executed the power of attorney and thereafter the investigating officer has conducted the the statement of investigation and has recorded complainant, accused and independent witnesses, thereafter whether the complainant is having the power of attorney or not is to be considered during trial.

In view of the above and for the reasons stated above, the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 CrPC is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Now, the trial is to be conducted and proceeded further in accordance with law and on its own merits. It is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 CrPC only and the trial court to decide the case in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us hereinabove. The present appeal is accordingly allowed.” (Emphasis supplied) The Apex Court clearly holds that when the issue revolves around seriously disputed questions of fact, this Court in exercise of its jurisdiction under Section 482 of the Cr.P.C., should not at the threshold interfere. Therefore, I decline to interfere with the investigation into the crime. 27

14. For the aforesaid reasons, the following: ORDER (i) (ii) Both the criminal petitions are rejected. It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of petitioners under Section 482 of Cr.P.C. and the same shall not bind or influence Investigation/proceedings initiated /pending against them before any fora. Pending applications if any, also stand disposed, as a consequence. Sd/- (M. NAGAPRASANNA) JUDGE CT:MJ