IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO.

OF 2016

Naveen Singhal (Agrawal) & another

Applicant

Versus
State of Maharashtra

Respondents
INDEX

Sr.

Particulars

No.
1.
2.
3.
4.
5.

PROFORMA
SYNOPSIS
CRIMINAL APPLICATION
Vakalatnama
Memorandum of Address
List of Documents
Exhbit A
Copy of Notice dated 23rd August 2016 issued

6.

by Respondent
Exhibit B
Copy of brief profile of the Directors of the

7.

Ashoka Aluminium Pvt. Ltd.

Exhibit C
Copy of the ledger account demonstrating the

8.

prompt payment by the applicants.

Exhibit D
Copy of the Tax Invoice which demonstrate
that the complaint have sent the chemical
Scot-Boron

9.

8%

501

Kgs

total

amounting

Rs.2,00,963/-.
Exhibit E
Copy of the E-Mail dated 07.01.2015 sent by

10.

the Applicant No.2.

Exhibit F
Copy of the F.I.R. registered against the
complainant at Police Station Azad Chowk,

11.

Raipur along with its charge-sheet.

Exhibit G
Copy

of

reply/statement

sent

by

the

Applicants to the summons issued by the

12.

respondent No.1 police station.

Exhibit H.
Copy of the order dated 29.02.2016 passed by

13.

Ld. Metropolitan Magistrate, Bandra, Mumbai

Affidavit in Support

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.______OF 2016
DIST: MUMBAI

In the matter of Section 482 of the Code of Criminal Procedure; And

IN the matter of First Information Report Number: 6 of 2016 Dated _____________

registered by Santacruz Police Station (West), Mumbai under Section 420, 504, 506
(2) r/w Section 34 of Indian Penal Code

1.

Mr. Navin Singhal (Agrawal) , aged 52 years,

Indian Inhabitant,

Son of

Director of Ashoka Aluminium Pvt. Ltd.

Having Its Office At

kumhari Ahiwara Road,

2.

Near Hingana Nala, Durg

Chattisgarh, 492001

Mr. Shubham Singhal (Agrawal), aged 30 years,

Indian Inhabitant,

Son of Shri Navin Singhal (Agrawal)

Director of Ashoka Aluminium Pvt. Ltd.

Having Its Office At

kumhari Ahiwara Road,

Near Hingana Nala, Durg

Chattisgarh, 492001

APPLICANTS

Versus

The State of Maharashtra

Through Santacruz Police Station,

Mumbai
TO,
THE HONBLE THE CHIEF JUSTICE
AND THE OTHER HONBLE JUDGES OF
THE HIGH COURT OF JUDICATURE
AT BOMBAY

...Responden

THE HUMBLE PETITION OF

THE APPLICANT
ABOVENAMED
MOST RESPECTFULLY SHEWETH:

1 By the present petition, the Applicants are challenging the legality,

correctness, propriety and further seeks quashing of First Information
Report No. 6 of 2016 filed by the Respondent No.1 under Section 420,
504, 506 (2) r/w with Section 34 of the Indian Penal Code. It is submitted
that registration of FIR No. 6 of 2016 and investigations carried out
pursuant thereof is perverse, abuse of law and requires to be set aside for
several reason as more particularly mentioned hereinafter. A plain reading
of the facts as well as documents annexed hereto will demonstrate that the
impugned F.I.R No 6 of 2016 and investigations conducted by Respondent
No. 1 constitutes gross abuse of the process of law and clearly establishes
that no offence as alleged is made out against the present Applicant.
2 The Applicants state that a question of law and general importance is
involved in the issue in dispute. The conclusion of law as laid down by way
of precedents by the Honble Apex Courts and this Honble High Courts
and other Honble High Courts have been completely overlooked by
Respondent No. 1. The registration of the criminal case against the
Applicants and issuing the summons to the Applicant to appear before the
Respondent No. 1 to answer the vexatious claim of the Respondent No.1
is nothing but an afterthought mechanism of the Respondent No.1. The
Applicants state that there have been several errors of law apparent on the
face of the record and thereby leading to miscarriage of justice. The
Applicants state that the facts giving rise to the filing of the present petition
and brief narration of facts necessary for proper adjudication of the present
petition is as under:

3. The Applicant No. 1 aged about 52 years is the Director of Ashoka Aluminium
Private Limited. The said company was operating in the field of Aluminium
Fabrication and Aluminium Alloy having its operation in the State of
Chattisgarh. The Applicant No.2 is also the Director of the said company and
is responsible for development of business and execution of the affairs of the
said Company. The Applicants were the Directors of erstwhile Ashoka
Aluminium Pvt. Ltd. having its office at Kumhari Ahiwara Road near Hingana
Nala, Durg (Chattisgarh) and were in business of Aluminium Fabrication,
Aluminium Extrusion and Aluminium Alloy, the said private limited company
was a reputed company of the State of Chattisgarh. It is submitted that the
company used to purchase a chemical named as Scot-Die lube which is used
in extrusion process for making profiles from Scottish Chemical Industries. As
and when the said good was purchased by the Ashoka Aluminium Pvt. Ltd. it
has promptly made the payment viz on 01.06.2013 the said chemical worth of
Rs.10,086.00 was purchased and on 05.07.2013 the payment was made.
Thereafter, on 12.08.2013, 18.09.2013 and 02.10.2013 a total goods of
Rs.30,201/- was purchased and accordingly on 10.10.2013 the Ashoka
Aluminium Pvt. Ltd. to the seller i.e. Scottish Chemical Industries. Thereafter,
the complainant Telephonically advised the Applicants to purchase a different
chemical imported from outside india which was used to make a better and
for extrusion plants and for cost cutting too so we have ordered on trial bases
of 500kgs and as per the sales executive it was mutually finalized that if the
material was not upto the mark than we will not be liable to pay for the trial
chemical used by the company. But after so much nonsense we agreed that
we are ready to paid for the 100 kgs aprox used by the company and after
that we asked them to send a credit note of the balance amount of which we
are returning the chemical but they refused very badly that you have to keep
material and you also have to pay the full amount of the bill. Thereafter, they
refused the payment for unused product. It is submitted that the said product
also called Scot-Boron 8% and it was assured by the complainant that the

said chemical is much better in comparison to the earlier one i.e. ScotDielube and thus, under the bonafide belief the Applicants placed the order
for purchase of said chemical. A copy of the ledger account demonstrating
the prompt payment by the applicants and copy of the Tax Invoice which
demonstrate that the complaint have sent the chemical Scot-Boron 8% 501
Kgs total amounting Rs.2,00,963/- is filed herewith as EXHIBIT C & D.

5.

That, when the Applicants have applied the chemical purchased by them for
used in furnace for making Aluminium Alloy it was found that the newly
purchased chemical is worthless to be used for the purpose of making and
therefore, the Applicants have made communication to the complainant
intimating him that newly purchased chemical is not up to the mark and thus,
a request was made to take off the unused chemical i.e. 400 Kgs. It was also
apprised by the Applicants that 100 Kgs of said chemical were used and thus,
they are ready to make the payment for the used chemical. The ledger
account annexed herewith as exhibit c clearly demonstrate that the Applicants
have already paid the amount of 100 Kgs of chemical which they have already
used. However, the complainant instead of taking of the unused chemical
started pressurizing the Applicants to make the payment for the entire
purchase and after sometime he has started threatening the Applicants on
phone for dire consequences. He often used abusive language against the
Applicants and when all the limits were crossed then in January 2015 the
Applicant No.2 has sent an E-Mail to the complainant and asked him not to
repeat such kind of abusive language in future and it was intimated that in
event of failure at the end of complainant a police complaint shall be lodged. A
copy of the E-Mail dated 07.01.2015 sent by the Applicant No.2 is annexed
herewith and marked as EXHIBIT E

6.

The complainant has not paid any heed on the said request and keep on
repeating

the

said

illegal

act

and

therefore,

the

Applicant No.2 has lodged an F.I.R. on 26.02.2015 in police station Azad

Chowk, District Raipur narrating the illegal/penal act of complainant and
accordingly Crime No.34/2015 has been registered against the complainant
by the police under Section 507 r/w 34 of I.P.C. and after completion of
investigation the police has filed a charge-sheet before the competent court
on 30.06.2015. A copy of the F.I.R. registered against the complainant at
Police Station Azad Chowk, Raipur along with its charge-sheet is annexed
herewith as EXHIBIT F.

7.

That, as to counterblast and just to wreck vengeance and to spite the

Applicants in a false and fabricated case the complainant has cooked up a
story and lodged the instant case against the Applicants. If the version of the
F.I.R. as authored by the complainant is accepted as true story even then no
ingredients of criminal offence is remotely attracted at the best the case for
recovery and contractual dispute can be made out against the Applicant.
Therefore, the registration of instant case is completely baseless and a
material fact has been concealed by the Complainant while approaching the
authorities.

8.

It is submitted that after receipt of summons under Section 91 of Cr.P.C. the

Applicants herein has sent a detail reply to the investigation officer. In the
instant reply the Applicants has narrated the transactions happened between
the Applicants company and company run by Mr. Rishab Kamal Khandelwal
since 2013. It may not be out of place to mention here that the Applicants has
also mentioned the fact that they have registered F.I.R. No.34/2015 dated
26.02.2015 against Rishab Khandelwal, Varun Khandelwal and Kamal
Khandelwal for the offence punishable under Section 507/34 I.P.C. registered
at police station Azad Chowk, District Raipur (Chattisgarh). A true copy of
reply/statement sent by the Applicants to the summons issued by the

respondent No.1 police station is annexed herewith and marked as EXHIBIT

G.
9. The Applicant humbly submits that the matter being civil in nature has been
given a color of Criminal Prosecution by the present Complainant and
Respondent has erroneously registered FIR bearing No.6 of 2016 under
section 420, 505, 506(2) r/w 34 of Indian Penal Code. After the registration of
First Information Report, the Respondent has called telephonically on 23 rd
September 2016 and also issued summons to Applicants to appear before
the Respondent for investigation.
10. The Applicants further submit that the content of the Complaints is nothing
but abuse of Criminal Prosecution for seeking the recovery of the alleged
non-paid rent and the penalty amount. It is hard to hold that how Respondent
No. 1 arrived at the conclusion that a criminal prosecution can be launched or
initiated for recovery of any monetary dispute.

11. It is submitted that on enquiry the Applicants at that juncture was informed by
the police personals that direction was issued from the Court to take
cognizance of the officer. Thereafter, on instruction the Counsel for the
Applicants visited the concern Court and obtained certified copy of the order
passed by the Ld. Metropolitan Magistrate, Bandra, Mumbai under Section
156 (3) of the Cr.P.C. A true copy of the order dated 29.02.2016 passed by
Ld.

Metropolitan Magistrate, Bandra, Mumbai is annexed herewith and

marked as Exhibit H.

GROUNDS

(a)

The Applicant No.1 & 2 aged about 52 years and 30 years

respectively has not committed any offence of cheating. Even as

per the complaint, no offence of cheating is made out as the dispute

arose under the Development Agreement.

(b)

The Applicants company and company run by the complainant

Rishab Kamal Khandelwal namely Scotish Chemical Industries
were having business transactions over the year. The ledger
account of the Applicants company clearly indicate that they have
made prompt payment towards the goods received by them from
Scotish Chemical Industries. The dispute arouse between the
Applicants and Respondent due to the supply of defective product
by the complainants company. The Applicant No.2 on various
occasions requested the complainant to take back their good and
they are ready and willing to make the payment with respect to the
goods which was used by them. However, they refused to do so
and started harassing the Applicants, in these circumstances the
Applicants also registered a F.I.R. under Section 507 I.P.C. against
the complainant. In the said case the concerned police has also
filed the charge-sheet against the complainant founding them guilty
for the offence alleged against them. Therefore, the present F.I.R. is
nothing but the retaliation to the complaint/F.I.R. lodged by the
Applicants against the complainant.

(c)

The entire dispute is civil in nature. The entire dispute presuming to

be correct arises out of a contract and therefore is civil in nature and
Respondent no. 1 and 2 have erroneously given color of criminal
prosecution. It is settled principle of law that any disputes under the
agreement have to be resolved as per the terms of the agreement.

(d)

That the registration of the FIR is illegal, perverse and is an arm

twisting measure adopted by the Respondent No. 2.

(e)

That Respondent has not made any complaint against the

Company and merely because the Applicants are the Directors of

10

the M/s Aluminium Pvt. Ltd. is arraigned as an accused. The

Company M/s Aluminium Pvt. Ltd. has not been named as accused
in the F.I.R though the entire transaction of the Respondents is with
the Company.
(f)

That the entire transactions between the parties are documented

and the Applicants have made all the payments of the goods used
by them except the last consignment which was not up to the mark
and they have requested the return for the same. Therefore, it
cannot be said that the applicant has any intention since inception
to commit fraud as envisaged under Section 420 of the I.P.C.

(g)

That the Ld. Metropolitan Magistrate, Bandra, Mumbai while taking

into the cognizance under Section 156 (3) Cr.P.C. failed to
appreciate the material fact that the dispute relating between the
parties is completely civil in nature and arising out of the contractual
liability. Therefore, the Ld. Magistrate ought to have heard the
Applicants before passing the order under Section 156 (3) of Cr.P.C.
as to ascertain the actual facts and circumstance of the instant
case.

(h)

The Applicants or the complainant has never received any amount

in their personal account. The entire transaction was between the
companies. Therefore, without mens-rea and malafide intention it
cannot be said that the Applicants are guilty for the offence
punishable under Section 420 I.P.C.

(i)

The Applicant No.2 has already cooperated and provided statement

to the Respondent when called for inquiry and has all the time
cooperated with the investigation.

(j)

That no recovery is required from the Applicants, neither their

identification is required to be done in the instant F.I.R. and hence,

11

their custodial interrogation is not required in connection with the

offence registered against them.

(k)

That the Honble Supreme Court and this Honble Court has held in
number of judgments that there is a clear distinction between
breach of Contract and offence of Cheating. The Respondent ought
to have applied his mind at the time of making the preliminary
inquiry in the Complaint.

(l)

That the Respondents ought to have appreciated that any legal

proceedings cannot be used for taking out personal grudge and to
secure the lost battle. The Respondents had failed to make out any
of the ingredients of Section 420 of the Indian Penal Code, 1860
and since the present proceedings filed by the Respondent is an act
to take out personal grudge against the present Applicants and
therefore, liable to be quashed as per the judgement of the Honble
Supreme Court in the case of Bhajan Lal vs The State of Haryana.

(m)

That Respondent has failed to take note of the fact that anything
which is contrary to law cannot be passed on to an individual
member in order to satisfy an individual members personal benefit.

(n)

That the FIR No. 6 of 2016 registered against the Applicants does
not disclose any offence and hence it is liable to be quashed.

(o)

The Applicant states that from the abovementioned facts it is clear

that the allegations made in the complaint even if taken at the face
value do not constitute any offence as the allegations are vague, of
a general and weeping nature, the pleadings are contrary and the
ingredients of the sections are not attracted and certain relevant

12

facts have been suppressed. The Applicant states that the

pleadings being vague, contrary clearly demonstrates that the order
of issuance of summons passed therein has been passed
mechanically and that the complaint as filed makes out no offence
against the Applicants. In view of the same the Applicant is invoking
the inherent jurisdiction of this Honble Court under section of the
Code of Criminal Procedure, 1973 with a prayer that this Honble
Court be pleased to call for the record and proceedings and after
being satisfied as to the maintainability, legality and proprietary of
the FIR No. 6 of 2016.

(p)

The Applicants state that entire cause of action has arisen in

Mumbai and hence this court has jurisdiction to entertain the
present dispute.

(q)

The Applicants have not filed any other petition in any other courts
either in State of Maharashtra or in any part of India

(r)

The Applicant have paid the appropriate court fees of Rs.

(s)

The Applicant therefore, pray:

13

a. That this Honble Court may be please to quash the First Information
Report No. 6 of 2016 filed by the Respondent against the Applicants
under Section 420, 504, 506 (2)/34 of Indian Penal Code;
b. That in pending the hearing and final disposal of the petition, this
Honble Court be please to stay the proceedings, investigations
initiated by the Respondents after the Registration of the First
Information Report No. 16 of 2016 and subsequent proceedings
initiated against the Applicants;
c. Ad-interim in respect to prayer clause ( b );
d. Any other order in the interest of justice, equity and good conscience.

Advocate for Applicant

Applicant

VERIFICATION
I, ______________, the Applicant No.1 in the said Application, having my
Office address at _______________________________

do hereby

14

solemnly state that whatever is stated herein above is true to my own

knowledge and I believe the same to be true.

Solemnly declared at Mumbai

this

day of September 2016

)
)

Before me,
Identified by me,
Advocate for the Applicants

IN THE HIGH COURT OF

JUDICATURE AT BOMBAY
CRIMINAL APPELLATE
JURISDICTION
CRIMINAL APPLICATION NO.
OF 2016

15

_________ and Anr.

Applicants
Versus
State of Maharastra and Anr.
...Respondents

--------------------------------CRIMINAL APPLICATION
---------------------------------

Dated this . day of September

2016