Full Judgment Text
2025 INSC 636
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). OF 2025
(Arising out of SLP (Crl.) No (s). 2713 of 2024)
SURESH KUMAR AGARWAL ….APPELLANT(S)
VERSUS
M/S. HALDIA STEELS LIMITED
& ANR. ….RESPONDENT(S)
WITH
CRIMINAL APPEAL NO(S). OF 2025
(Arising out of SLP (Crl.) No (s). 5030 of 2024)
J U D G M E N T
Mehta, J.
Criminal Appeal @ SLP(Criminal) No. 2713 of 2024
1. Heard.
Signature Not Verified
Digitally signed by
SONIA BHASIN
Date: 2025.05.06
18:09:54 IST
Reason:
1
2. Leave granted.
3. The appeal by special leave takes exception to the
th
order dated 17 October, 2023 passed in Criminal
Revision being C.R.R. No. 425 of 2016 whereby the
1
learned Single Judge of the High Court of Calcutta
accepted the revision filed by the respondent No.1-
2
Company and directed the police to conduct further
investigation in the terms indicated below: -
“33. Before parting with, it comes to my notice that
as per Rule 17 of the Mineral Concession Rules, 1960
any kind of transfer of the mining lease requires
previous consent in writing of the State Government
which is missing in our case.
34. All the discussion hereinabove, in my opinion,
justify further investigation of this case particularly
for revealing the credibility of the transfer of mining
lease. Therefore, I need to interfere with the order
impugned in connection with both the revision
applications which appears to have been made
through copy-paste process.
1
Hereinafter, being referred to as the ‘High Court’.
2
Hereinafter, being referred to as the ‘complainant-Company’ or
‘complainant’.
2
35. As a sequel, orders impugned passed in G.R. case
no. 2121 of 2014 and G.R. case no. 2120 of 2014
stand set aside.
36. Learned Chief Metropolitan Magistrate at Calcutta
is directed to give direction to the Police to further
investigate the case in terms of Provision of Section
173(8) of the Code of Criminal Procedure,
accordingly.”
4. The background facts essential for disposal of the
instant appeal are noted hereinbelow.
5. The complainant alleges that the accused-
3
appellant, namely, Suresh Kumar Agarwal approached
the officers of the complainant-Company at its
registered office situated at 37, Shakespeare Sarani,
Kolkata-700017 and introduced himself as the
proprietor of a concern functioning in the name and
style of M/s. Haryana Minerals, having its office at
Gandhiganj, Chindwara, Nagpur-440010. The
3
Hereinafter, being referred to as the ‘appellant’.
3
appellant represented that his concern is one of the
premier business concerns of Madhya Pradesh, having
profound reputation and significant expertise in mining
of manganese mineral. He further represented that his
concern had been granted a mining lease for excavation
of manganese ore by the Government of Madhya
Pradesh over 18.68 hectares of land located in the
village Ladhikheda, Tehsil Sausar, District Chindwada,
Madhya Pradesh for a period of 20 years commencing
th th
from 6 October, 2006 to 5 October, 2026. The
appellant portrayed that he was interested in
transferring such mining lease in favour of the
complainant-Company against valid consideration and
that in the event such transaction fructified, the
complainant-Company would be assured of
uninterrupted supply of manganese mineral over a
4
period of 20 years. He further assured the officers of the
complainant-Company that he had considerable clout
in the administrative machinery of the State of Madhya
Pradesh, which was evidenced by the fact that the
mining lease was granted in his favour. He also assured
that he would obtain Environmental Clearance in
respect of the said mine by using his approach.
6. Before getting the mining lease transferred, he
would convert his proprietary business, namely,
Haryana Mineral into a private limited company and
incorporate the same under the Companies Act, 1956
and thereafter, all his shares and the shares of other
Director/Directors of the newly incorporated company
would be transferred to the complainant-Company or
its nominees against payment of consideration, as may
be settled between the parties.
5
7. It is alleged that several meetings were held
between the appellant and the officers of the
complainant-Company wherein the modalities for
transfer of the mining lease in favour of the
complainant-Company were discussed. The accused
appellant repeatedly assured the officers of the
Complainant-Company that upon the consideration
amount being paid, he would ensure incorporation of
the proprietary concern into a private limited company
and thereafter ensure transfer of all its shares to the
complainant-Company. A further assurance was given
that the requisite Environmental Clearance, for
operating the mine, would be obtained by the appellant
of his own accord.
6
However, contrary to such assurances, the
Environmental Clearance certificate was never
procured.
8. It is further alleged that trusting the assurance
that manganese ore would be supplied by the appellant,
a total amount of Rs.96,20,350/- was transferred by the
complainant-Company to the appellant in terms of the
Memorandum of Understanding/agreement. Despite
receiving the advance consideration as agreed, the
appellant did not supply manganese ore to the
complainant-Company which was thereupon compelled
to procure the same from other sources at higher prices.
The complainant-Company further claims that the
accused appellant informed that he had transformed
his proprietary concern into a private limited company
7
4
in the name of Haryana Mineral Manganese Ore (P) Ltd .
and had also transferred 14701 shares which were
around 28% of the total shareholdings of the said
company, in favour of the nominees of the complainant-
Company.
9. As per complainant, the appellant was under an
obligation to take steps to hand over the entire assets
and shares of the newly incorporated company to the
complainant-Company. However, only 28% shares were
transferred and thus the complainant-Company never
gained full administrative control over the affairs of the
company incorporated by the appellant nor was it able
to access the assets of the said Company.
4
Hereinafter, being referred to as the “HMMOPL”.
8
10. The complainant also alleged that the appellant
handed over a letter issued by the Mines & Minerals
th
Department, Government of Madhya Pradesh dated 29
December, 2008, which reflected that the mining lease
standing in the name of Haryana Mineral stood
transferred in favour of HMMOPL.
11. As the appellant resiled from his promise and
assurances and failed to adhere to the terms and
conditions of the MOU, the complainant-Company filed
a complaint incorporating the above allegations, in the
Court of the learned Chief Metropolitan Magistrate,
Calcutta.
12. The said complaint was forwarded to the
concerned police station for investigation under Section
9
5
156(3) of the Code of Criminal Procedure where FIR
Case No. 318 of 2014 was registered for the offences
punishable under Sections 120B, 406 and 420 IPC.
13. The investigating officer conducted investigation
st
and submitted a closure report dated 1 April, 2015
under Section 173(2) CrPC concluding that during the
course of investigation, the complainant-Company was
requested to submit documents in support of the
complaint, including the purchase order against the
proposed deal for procurement of manganese ore, etc.
However, apart from a bank statement reflecting a
transaction of Rs.50 lakhs, the complainant-Company
failed to furnish any substantive material or
corroborative evidence in support of the allegations set
out in the complaint.
5
Hereinafter, being referred to as the “CrPC”.
10
14. The investigating officer also concluded that it was
Mr. Vikas Bansal, Managing Director of the
complainant-Company, who had approached the
appellant upfront and had expressed his interest to
procure the rights of the appellant in the name of his
company (i.e., M/s. Haldia Steels Limited). The
investigation also revealed that acting in compliance of
the terms of the agreement/MOU, appellant
incorporated a private limited company, namely,
HMMOPL in which initially he and his son Vaibhav
Agarwal were the Directors. The appellant made
repeated requests to Mr. Vikas Bansal to transfer and
pay the remaining amount of Rs.2.70 crores in terms of
the agreement but the payment was not forthcoming
except for the initial amount of Rs.50 lakhs paid at the
nd
time of signing of the MOU. In spite thereof, on 2
11
April, 2004, Mr. Vikas Bansal and his father Mr. Ram
Kishore Bansal were appointed as Directors of the
Company, namely, HMMOPL. The acrimony between
the parties was owing to the non-payment of the
balance amount for transfer of the company’s shares to
the complainant-Company. The investigating officer
concluded that while the complainant-Company had
lodged the complaint alleging non-supply of manganese
ore against the advance payment of Rs.50 lakhs, the
investigation revealed that the actual dispute related to
the breach of terms and conditions of the
MOU/contract entered into between the complainant-
Company and the accused appellant in respect of the
transfer of the mining lease.
12
st 6
15. Finally, on 1 April, 2015, the closure report was
filed by the investigating officer before the concerned
Court concluding that the dispute was of civil nature
arising out of the breach of contract and that no offence
was made out against the accused appellant from the
material collected during investigation.
16. On receiving the notice of the final report, the
st
complainant-Company on 21 April, 2015, filed a
Protest Petition through its authorised representative,
praying for thorough further investigation into the facts
as narrated in the protest petition wherein for the first
time a case was set up that the document provided by
appellant evidencing the transfer of mining lease in the
name of HMMOPL was fabricated.
6
Final Closure Report No.79 of 2015.
13
17. The learned Chief Metropolitan Magistrate, by a
th
detailed order dated 5 October, 2015 proceeded to
reject the protest petition and accepted the closure
report observing that the dispute between the parties
primarily arose on account of breach of contract and
that the complainant-Company did not pay the agreed
amount to the appellant in terms of the MOU. The
foundation of the complaint, that the advance amount
of Rs.50 lakhs was paid by way of advance towards
purchase of manganese ore, was found to be false and
an after-thought. Consequently, the closure report
st
dated 1 April, 2015 was accepted. The complainant-
Company assailed the said order by filing a Criminal
Revision (CRR No. 425 of 2016) in the High Court, which
th
stands allowed vide order dated 17 October, 2023
14
which is subject matter of challenge in this appeal by
special leave.
18. We have heard the submissions advanced by
learned counsel representing the parties and have gone
through the impugned order and the material placed on
record.
19. At the outset, we may note a glaring feature of the
case. The alleged acts of fraud and criminal
misappropriation, emanating from the breach of the
MOU between the parties took place between the years
2007-2008. However, the complaint came to be filed in
the year 2014. No plausible explanation has been
offered by the complainant-Company for this gross and
undue delay of almost six years in filing of the
complaint.
15
20. The complainant-Company founded its allegations
on an alleged order for purchase of manganese ore
placed to the accused appellant and claims to have paid
an advance amount to the tune of Rs.50 lakhs for this
purpose. However, the investigating officer, after
conducting thorough investigation, concluded that the
said allegation seems to be in a stark contrast to the
MOU entered into between the parties which entirely
focused on incorporation of the appellant’s proprietary
concern into a private limited company and thereafter
transfer of the shares of the said company to the
complainant-Company.
21. Undisputed facts as per record reflect that in
terms of the MOU/agreement, the complainant-
Company was obliged to transfer a total amount of
Rs.3,20,00,000/- to the accused appellant, who upon
16
receipt of such amount, would be required to get his
firm incorporated into a company and transfer the
entire bulk of shares thereof to the complainant-
Company. The evidence collected by the investigating
officer is unequivocal to the effect that the accused
appellant indeed transformed his proprietorship
concern into a private limited company namely,
HMMOPL and also transferred 28% shares of the newly
incorporated company to the complainant-Company’s
authorised representative.
22. Indisputably, the complainant-Company failed to
carry out its obligations under the MOU because the
amount of Rs.3,20,00,000/-, which was to be
transferred to the accused appellant, was not paid in
full and a sum of Rs.2,70,00,000/- remained
17
outstanding till the filing of the complaint, which itself
was grossly delayed as observed above.
23. The complainant-Company tried to project that
the sum of Rs.50,00,000/- was paid to the appellant as
advance towards supply of manganese ore whereas, the
written document executed between the parties paints
an entirely different picture. The said document, in
unequivocal terms, indicates that the amount was paid
in terms of the MOU which mandated the complainant-
Company to transfer a total sum of Rs.3,20,00,000/- to
the accused appellant whereafter, the appellant would
be required to get his proprietorship concern
incorporated into a company and then, transfer the
shares thereof to the complainant-Company. Hence, the
incorporation of the proprietorship concern into a
company and the transfer of shares thereof was
18
contingent upon the complainant-Company performing
its obligations under the MOU, which it admittedly
failed to do. Apparently thus, the complainant-
Company twisted the facts by claiming that the advance
amount of Rs. 50,00,000/- was paid to the appellant for
supply of manganese ore. This allegation was totally
false and concocted and could not be substantiated by
any purchase order, etc. The investigating officer made
efforts to seek the procurement/purchase order, but the
complainant-Company failed to provide the same
manifestly because no such order was ever placed.
24. Hence, we have no hesitation in holding that the
complainant-Company had twisted and manipulated
the facts in the highly belated complaint just in order to
give a colour of criminal offence to a dispute which was
purely civil in nature emanating from the breach of
19
agreement. The conclusions drawn by the investigating
officer in the final report are unimpeachable. Once the
investigation had been completed, the complainant-
Company tried to take a new stance claiming that the
order whereby, the State Government had approved the
transfer of the mining lease in favour of the appellant,
was forged. However, not even prima facie evidence was
provided by the complainant-Company in support of
such allegation and it seems to be nothing but a sheer
flight of fancy of the complainant-Company to try and
continue the lame prosecution and put the appellant
under pressure. The complainant-Company is well-
established in the field of mining. Thus, the omission of
the basic facts in the highly belated complaint, that the
appellant had allegedly provided the complainant-
Company with some fabricated Government order,
20
renders the entire case set up in the FIR doubtful and
unworthy of credence.
25. The High Court seems to have been unduly
swayed by this totally new and conjectural stance taken
by the complainant-Company in the protest petition
and directed further investigation into the matter
without assigning a justifiable and sustainable reason.
26. The fact that the FIR was highly belated and that
the complainant-Company tried to paint an entirely new
picture by imputing that the advance payment of Rs.
50,00,000/- was made to the accused for procuring
manganese ore in stark contradiction to the terms and
conditions of the MOU were sufficient reasons for the
High Court to have refrained from exercising its
revisional jurisdiction and directing further
investigation into the case. The order passed by the trial
21
Court accepting the closure report and rejecting the
protest petition is unassailable in view of the
undisputed material available on record.
27. We have no hesitation in holding that the admitted
allegations as set out in the complaint do not disclose
the necessary ingredients of any offence whatsoever,
what to say, of a cognizable offence. Directing further
investigation into such a frivolous complaint, filed after
gross, undue and unexplained delay of six years, is
nothing but a sheer abuse of the process of law.
th
28. Consequently, the impugned order dated 17
October, 2023 passed by the High Court does not stand
to scrutiny and is hereby quashed and set aside. The
th
order dated 5 October, 2015 passed by the learned
Chief Metropolitan Magistrate, Calcutta accepting the
22
final report and rejecting the protest petition filed by the
complainant-Company is restored.
29. The appeal is allowed accordingly.
30. Pending application(s), if any, shall stand disposed
of.
Criminal Appeal @ SLP(Criminal) No. 5030 of 2024
1. Leave granted.
2. The facts and circumstances as involved in the
present appeal are a verbatim same as in the connected
Criminal Appeal @ SLP(Criminal) No. 2713 of 2024
which has been allowed by a separate order.
3. For the reasons mentioned in the Criminal Appeal
@ SLP(Criminal) No. 2713 of 2024, the instant appeal is
th
also allowed. The impugned judgment dated 17
23
October, 2023 passed by the High Court of Calcutta is
th
set aside. The order dated 5 October, 2015 passed by
the learned Chief Metropolitan Magistrate, Calcutta
accepting the negative final report submitted by the
police, is hereby restored.
4. Pending application(s), if any, shall stand disposed
of.
….……………………J.
(VIKRAM NATH)
...…………………….J.
(SANDEEP MEHTA)
NEW DELHI;
April 15, 2025.
24
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). OF 2025
(Arising out of SLP (Crl.) No (s). 2713 of 2024)
SURESH KUMAR AGARWAL ….APPELLANT(S)
VERSUS
M/S. HALDIA STEELS LIMITED
& ANR. ….RESPONDENT(S)
WITH
CRIMINAL APPEAL NO(S). OF 2025
(Arising out of SLP (Crl.) No (s). 5030 of 2024)
J U D G M E N T
Mehta, J.
Criminal Appeal @ SLP(Criminal) No. 2713 of 2024
1. Heard.
Signature Not Verified
Digitally signed by
SONIA BHASIN
Date: 2025.05.06
18:09:54 IST
Reason:
1
2. Leave granted.
3. The appeal by special leave takes exception to the
th
order dated 17 October, 2023 passed in Criminal
Revision being C.R.R. No. 425 of 2016 whereby the
1
learned Single Judge of the High Court of Calcutta
accepted the revision filed by the respondent No.1-
2
Company and directed the police to conduct further
investigation in the terms indicated below: -
“33. Before parting with, it comes to my notice that
as per Rule 17 of the Mineral Concession Rules, 1960
any kind of transfer of the mining lease requires
previous consent in writing of the State Government
which is missing in our case.
34. All the discussion hereinabove, in my opinion,
justify further investigation of this case particularly
for revealing the credibility of the transfer of mining
lease. Therefore, I need to interfere with the order
impugned in connection with both the revision
applications which appears to have been made
through copy-paste process.
1
Hereinafter, being referred to as the ‘High Court’.
2
Hereinafter, being referred to as the ‘complainant-Company’ or
‘complainant’.
2
35. As a sequel, orders impugned passed in G.R. case
no. 2121 of 2014 and G.R. case no. 2120 of 2014
stand set aside.
36. Learned Chief Metropolitan Magistrate at Calcutta
is directed to give direction to the Police to further
investigate the case in terms of Provision of Section
173(8) of the Code of Criminal Procedure,
accordingly.”
4. The background facts essential for disposal of the
instant appeal are noted hereinbelow.
5. The complainant alleges that the accused-
3
appellant, namely, Suresh Kumar Agarwal approached
the officers of the complainant-Company at its
registered office situated at 37, Shakespeare Sarani,
Kolkata-700017 and introduced himself as the
proprietor of a concern functioning in the name and
style of M/s. Haryana Minerals, having its office at
Gandhiganj, Chindwara, Nagpur-440010. The
3
Hereinafter, being referred to as the ‘appellant’.
3
appellant represented that his concern is one of the
premier business concerns of Madhya Pradesh, having
profound reputation and significant expertise in mining
of manganese mineral. He further represented that his
concern had been granted a mining lease for excavation
of manganese ore by the Government of Madhya
Pradesh over 18.68 hectares of land located in the
village Ladhikheda, Tehsil Sausar, District Chindwada,
Madhya Pradesh for a period of 20 years commencing
th th
from 6 October, 2006 to 5 October, 2026. The
appellant portrayed that he was interested in
transferring such mining lease in favour of the
complainant-Company against valid consideration and
that in the event such transaction fructified, the
complainant-Company would be assured of
uninterrupted supply of manganese mineral over a
4
period of 20 years. He further assured the officers of the
complainant-Company that he had considerable clout
in the administrative machinery of the State of Madhya
Pradesh, which was evidenced by the fact that the
mining lease was granted in his favour. He also assured
that he would obtain Environmental Clearance in
respect of the said mine by using his approach.
6. Before getting the mining lease transferred, he
would convert his proprietary business, namely,
Haryana Mineral into a private limited company and
incorporate the same under the Companies Act, 1956
and thereafter, all his shares and the shares of other
Director/Directors of the newly incorporated company
would be transferred to the complainant-Company or
its nominees against payment of consideration, as may
be settled between the parties.
5
7. It is alleged that several meetings were held
between the appellant and the officers of the
complainant-Company wherein the modalities for
transfer of the mining lease in favour of the
complainant-Company were discussed. The accused
appellant repeatedly assured the officers of the
Complainant-Company that upon the consideration
amount being paid, he would ensure incorporation of
the proprietary concern into a private limited company
and thereafter ensure transfer of all its shares to the
complainant-Company. A further assurance was given
that the requisite Environmental Clearance, for
operating the mine, would be obtained by the appellant
of his own accord.
6
However, contrary to such assurances, the
Environmental Clearance certificate was never
procured.
8. It is further alleged that trusting the assurance
that manganese ore would be supplied by the appellant,
a total amount of Rs.96,20,350/- was transferred by the
complainant-Company to the appellant in terms of the
Memorandum of Understanding/agreement. Despite
receiving the advance consideration as agreed, the
appellant did not supply manganese ore to the
complainant-Company which was thereupon compelled
to procure the same from other sources at higher prices.
The complainant-Company further claims that the
accused appellant informed that he had transformed
his proprietary concern into a private limited company
7
4
in the name of Haryana Mineral Manganese Ore (P) Ltd .
and had also transferred 14701 shares which were
around 28% of the total shareholdings of the said
company, in favour of the nominees of the complainant-
Company.
9. As per complainant, the appellant was under an
obligation to take steps to hand over the entire assets
and shares of the newly incorporated company to the
complainant-Company. However, only 28% shares were
transferred and thus the complainant-Company never
gained full administrative control over the affairs of the
company incorporated by the appellant nor was it able
to access the assets of the said Company.
4
Hereinafter, being referred to as the “HMMOPL”.
8
10. The complainant also alleged that the appellant
handed over a letter issued by the Mines & Minerals
th
Department, Government of Madhya Pradesh dated 29
December, 2008, which reflected that the mining lease
standing in the name of Haryana Mineral stood
transferred in favour of HMMOPL.
11. As the appellant resiled from his promise and
assurances and failed to adhere to the terms and
conditions of the MOU, the complainant-Company filed
a complaint incorporating the above allegations, in the
Court of the learned Chief Metropolitan Magistrate,
Calcutta.
12. The said complaint was forwarded to the
concerned police station for investigation under Section
9
5
156(3) of the Code of Criminal Procedure where FIR
Case No. 318 of 2014 was registered for the offences
punishable under Sections 120B, 406 and 420 IPC.
13. The investigating officer conducted investigation
st
and submitted a closure report dated 1 April, 2015
under Section 173(2) CrPC concluding that during the
course of investigation, the complainant-Company was
requested to submit documents in support of the
complaint, including the purchase order against the
proposed deal for procurement of manganese ore, etc.
However, apart from a bank statement reflecting a
transaction of Rs.50 lakhs, the complainant-Company
failed to furnish any substantive material or
corroborative evidence in support of the allegations set
out in the complaint.
5
Hereinafter, being referred to as the “CrPC”.
10
14. The investigating officer also concluded that it was
Mr. Vikas Bansal, Managing Director of the
complainant-Company, who had approached the
appellant upfront and had expressed his interest to
procure the rights of the appellant in the name of his
company (i.e., M/s. Haldia Steels Limited). The
investigation also revealed that acting in compliance of
the terms of the agreement/MOU, appellant
incorporated a private limited company, namely,
HMMOPL in which initially he and his son Vaibhav
Agarwal were the Directors. The appellant made
repeated requests to Mr. Vikas Bansal to transfer and
pay the remaining amount of Rs.2.70 crores in terms of
the agreement but the payment was not forthcoming
except for the initial amount of Rs.50 lakhs paid at the
nd
time of signing of the MOU. In spite thereof, on 2
11
April, 2004, Mr. Vikas Bansal and his father Mr. Ram
Kishore Bansal were appointed as Directors of the
Company, namely, HMMOPL. The acrimony between
the parties was owing to the non-payment of the
balance amount for transfer of the company’s shares to
the complainant-Company. The investigating officer
concluded that while the complainant-Company had
lodged the complaint alleging non-supply of manganese
ore against the advance payment of Rs.50 lakhs, the
investigation revealed that the actual dispute related to
the breach of terms and conditions of the
MOU/contract entered into between the complainant-
Company and the accused appellant in respect of the
transfer of the mining lease.
12
st 6
15. Finally, on 1 April, 2015, the closure report was
filed by the investigating officer before the concerned
Court concluding that the dispute was of civil nature
arising out of the breach of contract and that no offence
was made out against the accused appellant from the
material collected during investigation.
16. On receiving the notice of the final report, the
st
complainant-Company on 21 April, 2015, filed a
Protest Petition through its authorised representative,
praying for thorough further investigation into the facts
as narrated in the protest petition wherein for the first
time a case was set up that the document provided by
appellant evidencing the transfer of mining lease in the
name of HMMOPL was fabricated.
6
Final Closure Report No.79 of 2015.
13
17. The learned Chief Metropolitan Magistrate, by a
th
detailed order dated 5 October, 2015 proceeded to
reject the protest petition and accepted the closure
report observing that the dispute between the parties
primarily arose on account of breach of contract and
that the complainant-Company did not pay the agreed
amount to the appellant in terms of the MOU. The
foundation of the complaint, that the advance amount
of Rs.50 lakhs was paid by way of advance towards
purchase of manganese ore, was found to be false and
an after-thought. Consequently, the closure report
st
dated 1 April, 2015 was accepted. The complainant-
Company assailed the said order by filing a Criminal
Revision (CRR No. 425 of 2016) in the High Court, which
th
stands allowed vide order dated 17 October, 2023
14
which is subject matter of challenge in this appeal by
special leave.
18. We have heard the submissions advanced by
learned counsel representing the parties and have gone
through the impugned order and the material placed on
record.
19. At the outset, we may note a glaring feature of the
case. The alleged acts of fraud and criminal
misappropriation, emanating from the breach of the
MOU between the parties took place between the years
2007-2008. However, the complaint came to be filed in
the year 2014. No plausible explanation has been
offered by the complainant-Company for this gross and
undue delay of almost six years in filing of the
complaint.
15
20. The complainant-Company founded its allegations
on an alleged order for purchase of manganese ore
placed to the accused appellant and claims to have paid
an advance amount to the tune of Rs.50 lakhs for this
purpose. However, the investigating officer, after
conducting thorough investigation, concluded that the
said allegation seems to be in a stark contrast to the
MOU entered into between the parties which entirely
focused on incorporation of the appellant’s proprietary
concern into a private limited company and thereafter
transfer of the shares of the said company to the
complainant-Company.
21. Undisputed facts as per record reflect that in
terms of the MOU/agreement, the complainant-
Company was obliged to transfer a total amount of
Rs.3,20,00,000/- to the accused appellant, who upon
16
receipt of such amount, would be required to get his
firm incorporated into a company and transfer the
entire bulk of shares thereof to the complainant-
Company. The evidence collected by the investigating
officer is unequivocal to the effect that the accused
appellant indeed transformed his proprietorship
concern into a private limited company namely,
HMMOPL and also transferred 28% shares of the newly
incorporated company to the complainant-Company’s
authorised representative.
22. Indisputably, the complainant-Company failed to
carry out its obligations under the MOU because the
amount of Rs.3,20,00,000/-, which was to be
transferred to the accused appellant, was not paid in
full and a sum of Rs.2,70,00,000/- remained
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outstanding till the filing of the complaint, which itself
was grossly delayed as observed above.
23. The complainant-Company tried to project that
the sum of Rs.50,00,000/- was paid to the appellant as
advance towards supply of manganese ore whereas, the
written document executed between the parties paints
an entirely different picture. The said document, in
unequivocal terms, indicates that the amount was paid
in terms of the MOU which mandated the complainant-
Company to transfer a total sum of Rs.3,20,00,000/- to
the accused appellant whereafter, the appellant would
be required to get his proprietorship concern
incorporated into a company and then, transfer the
shares thereof to the complainant-Company. Hence, the
incorporation of the proprietorship concern into a
company and the transfer of shares thereof was
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contingent upon the complainant-Company performing
its obligations under the MOU, which it admittedly
failed to do. Apparently thus, the complainant-
Company twisted the facts by claiming that the advance
amount of Rs. 50,00,000/- was paid to the appellant for
supply of manganese ore. This allegation was totally
false and concocted and could not be substantiated by
any purchase order, etc. The investigating officer made
efforts to seek the procurement/purchase order, but the
complainant-Company failed to provide the same
manifestly because no such order was ever placed.
24. Hence, we have no hesitation in holding that the
complainant-Company had twisted and manipulated
the facts in the highly belated complaint just in order to
give a colour of criminal offence to a dispute which was
purely civil in nature emanating from the breach of
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agreement. The conclusions drawn by the investigating
officer in the final report are unimpeachable. Once the
investigation had been completed, the complainant-
Company tried to take a new stance claiming that the
order whereby, the State Government had approved the
transfer of the mining lease in favour of the appellant,
was forged. However, not even prima facie evidence was
provided by the complainant-Company in support of
such allegation and it seems to be nothing but a sheer
flight of fancy of the complainant-Company to try and
continue the lame prosecution and put the appellant
under pressure. The complainant-Company is well-
established in the field of mining. Thus, the omission of
the basic facts in the highly belated complaint, that the
appellant had allegedly provided the complainant-
Company with some fabricated Government order,
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renders the entire case set up in the FIR doubtful and
unworthy of credence.
25. The High Court seems to have been unduly
swayed by this totally new and conjectural stance taken
by the complainant-Company in the protest petition
and directed further investigation into the matter
without assigning a justifiable and sustainable reason.
26. The fact that the FIR was highly belated and that
the complainant-Company tried to paint an entirely new
picture by imputing that the advance payment of Rs.
50,00,000/- was made to the accused for procuring
manganese ore in stark contradiction to the terms and
conditions of the MOU were sufficient reasons for the
High Court to have refrained from exercising its
revisional jurisdiction and directing further
investigation into the case. The order passed by the trial
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Court accepting the closure report and rejecting the
protest petition is unassailable in view of the
undisputed material available on record.
27. We have no hesitation in holding that the admitted
allegations as set out in the complaint do not disclose
the necessary ingredients of any offence whatsoever,
what to say, of a cognizable offence. Directing further
investigation into such a frivolous complaint, filed after
gross, undue and unexplained delay of six years, is
nothing but a sheer abuse of the process of law.
th
28. Consequently, the impugned order dated 17
October, 2023 passed by the High Court does not stand
to scrutiny and is hereby quashed and set aside. The
th
order dated 5 October, 2015 passed by the learned
Chief Metropolitan Magistrate, Calcutta accepting the
22
final report and rejecting the protest petition filed by the
complainant-Company is restored.
29. The appeal is allowed accordingly.
30. Pending application(s), if any, shall stand disposed
of.
Criminal Appeal @ SLP(Criminal) No. 5030 of 2024
1. Leave granted.
2. The facts and circumstances as involved in the
present appeal are a verbatim same as in the connected
Criminal Appeal @ SLP(Criminal) No. 2713 of 2024
which has been allowed by a separate order.
3. For the reasons mentioned in the Criminal Appeal
@ SLP(Criminal) No. 2713 of 2024, the instant appeal is
th
also allowed. The impugned judgment dated 17
23
October, 2023 passed by the High Court of Calcutta is
th
set aside. The order dated 5 October, 2015 passed by
the learned Chief Metropolitan Magistrate, Calcutta
accepting the negative final report submitted by the
police, is hereby restored.
4. Pending application(s), if any, shall stand disposed
of.
….……………………J.
(VIKRAM NATH)
...…………………….J.
(SANDEEP MEHTA)
NEW DELHI;
April 15, 2025.
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