Allowed

Indiabulls Housing Finance Ltd. Thr Uma Salma Mansuri and Ors. v. the State of Maharashtra and Anr.

Bombay HC4 May 2022WP/1805/2021

Case brief

AI extract

What is this about?

This court allowed two writ petitions filed by Indiabulls Housing Finance Ltd. and Atul Chordia under Article 226 of the Constitution and Section 482 CrPC. The court quashed an order directing registration of an FIR, holding the complaint was malafide, lacked statutory affidavit support, and constituted an abuse of process.

What did the court decide?

Writ of Quo Warranto or Mandamus issued to quash the order of the Judicial Magistrate directing registration of FIR and vesting jurisdiction in Wada Police Station.

Indiabulls Housing Finance Ltd. Thr Uma Salma Mansuri and… — Quashing and FIR | Bombay HC (2022)

¶1

Judgment.WP1805.2021+.doc

¶2

UMESH SHRINIWAS MALANI

¶3

Digitally signed by UMESH SHRINIWAS MALANI Date: 2022.05.04 18:35:37 +0530

¶4

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

¶5

WRIT PETITION NO. 1805 OF 2021

¶6

1.Indiabulls Housing Finance )
Ltd.Having its corporate )
office at Indiabulls Finance)
Centre, Indiabulls House, )
Tower 1, 17thFloor,)
Senapati Bapat Marg,)
Elphinstone Road,)
Mumbai – 400 013.)
through Ms. Uma Salma )
Mansuri)
)
2.Mr. Rajiv Gandhi
)
Having his office address
)
at One International
)
Centre, Indiabulls House,
)
Tower 1, 18th Floor,
)
Senapati Bapat Marg,
)
Elphinstone Road,
)
Mumbai – 400 013.
)
)
3.Mr. Santosh Khopade,
)
Having his office address
)
at One International
)
Centre, Indiabulls House,
)
Tower 1, 18th Floor,
)
Senapati Bapat Marg,
)
Elphinstone Road,
)
Mumbai – 400 013....Petitioners
Versus
1.State of Maharashtra)
through Wada Police)
Station, Police Station )
Road, Agari Ali, Wada,)
Maharashtra – 421 303.)
)
2.Ashutosh Kamble,
)
129, Ahmed Sailor Compound,
)
B.J. Devrukhkar Road,
)
Naigaon, Dadar,
)

¶7

Page 1 of 41

¶8

Umesh Malani

¶9

Judgment.WP1805.2021+.doc

¶10

Mumbai – 400 014.)...Respondents

¶11

ALONG WITH WRIT PETITION NO. 6812 OF 2021

¶12

Atul Chordia,)
Level 8, Chordia World,)
Mumbai – Bangalore Highway,)
Baner, Pune – 411 045.)
Maharashtra, India.)...Petitioner

¶13

Versus

¶14

1. The State of Maharashtra ) (Through Wada Police ) Station, Palghar) ) )

¶15

2. Ashutosh Vijay Kamble, ) 380, At Biloshi, Taluka ) Wada, District Palghar ) 421 303. Maharashtra, ) India. ) ...Respondents

¶16

***

¶17

Mr. Mukul Rohatgi, Senior Advocate, Mr. Amit Desai, Senior Advocate, a/w Mr. Gopalkrishna Shenoy, Mr. Pranav Badheka, Mr. Nikhil Rohatgi, Mr. Karan Luthra, Mr. Rohan Dakshini, Ms. Pooja Kothari, Ms. Janaki Garde, Ms. Anuka Bhansali, Ms. Urvi Gupte Advocates i/by Rashmikant and Partners for Petitioners in WP/1805/2021.

¶18

Dr. Abhinav Chandrachud, Mr. Shubhash Jadhav, Mr. Amit Patil i/by Parinam Law Asso for Petitioner in WP/6812/2021.

¶19

Mrs. A.S. Pai, PP a/w Mr. J.P. Yagnik, APP for Respondent – State in both Writ Petitions.

¶20

Mr. Akhilesh Dubey a/w Mr. Dharmesh Joshi, Mr. Amit Dubey, Mr. Uttam Dubey, Mr. Rajaram Kuleriya, Mr. Varad Dubey i/by T.D. Joshi and Asso for Respondent No. 2 in both Writ Petition.

¶21

Mr. Narayan Dnyanoba Saste, Dy.SP, State CID, Pune is present.

¶22

***

¶23

Page 2 of 41

¶24

Umesh Malani

¶25

Judgment.WP1805.2021+.doc

¶26

 CORAM : PRASANNA B. VARALE &
 S.M. MODAK, JJ.

¶27

 RESERVED ON : APRIL 08,2022.
 PRONOUNCED ON : MAY 04, 2022.

¶28

JUDGMENT (PER PRASANNA B. VARALE, J)

¶29

1.The present Petitions are filed under Article

¶30

226 of the Constitution of India & Section 482 of the
Code of Criminal Procedure, 1973 seeking quashment of
the order dated 07th April, 2021 passed by the Judicial
Magistrate First Class, Wada in O.M.A. No. 105 of 2021
and first information report bearing Crime No. 0129 of
2021 dated 13th April, 2021 in Wada Police Station for
the offences punishable under Sections 420, 465, 467,
468, 469, 470, 471 read with Section 120(B) of the
Indian Penal Code, 1860 against the Petitioners.

¶31

2.Rule. Rule made returnable forthwith. With the
consent of learned Counsel appearing for the respective
parties, matters are taken up for hearing and disposal,
at the admission stage itself.

¶32

3.Writ Petition No. 1805 of 2021 is treated as

¶33

lead Petition so as to discuss the facts, submissions
and merits of both the Petitions.

¶34

Page 3 of 41

¶35

Umesh Malani

¶36

Judgment.WP1805.2021+.doc

¶37

4.The challenge is raised on following grounds:

¶38

i.Respondent No. 2 at whose instance the

¶39

complaint was submitted to the JMFC, Wada is wholly
untenable and the Judicial Magistrate without
application of mind passed the order under Section
156(3) of the Code of Criminal Procedure.

¶40

ii. Respondent No. 2 submitted in the complaint
that he had invested certain amount in the shares of
the Petitioner – Company and it is admitted by the
Petitioner himself that Respondent No. 2 had not
suffered any personal loss.

¶41

iii.Respondent No. 2 in his complaint admitted
that the for the first time he had invested the amount
in the shares of the company and further stated that on
collection of certain information it came to his
knowledge that the Petitioner – Company played the
mischief and with an oblique object caused the loss to
its shareholders.

¶42

iv. Respondent No. 2 who is otherwise resident of
Dadar, Mumbai, with a designed motive shifted to
Biloshi, Wada and by arranging the house on rental

¶43

Page 4 of 41

¶44

Umesh Malani

¶45

Judgment.WP1805.2021+.doc

¶46

basis for a limited period approached the Magistrate by
submitting his complaint. Thus, Respondent No. 2 for
fulfilling his oblique intention selected the
jurisdiction of said Court.

¶47

v. Mr. Rohatgi, learned Senior Counsel vehemently
submitted before this Court that a similar attempt was
made in other part of the county and a Petition was
filed for quashing before Delhi High Court. The Delhi
High Court in its detailed order observed that the
complaint was filed with oblique motive.

¶48

vi.Mr. Rohatgi, learned Senior Counsel further
submitted before the Court that the material in support
of the complaint submitted before the Wada Court is
nothing but an replica of a complaint in question
before the Delhi High Court.

¶49

vii.Mr. Rohatgi submitted that without admitting,
even if the complaint is considered on its face value,
not a single offence is made out against the
Petitioner.

¶50

viii.Mr. Rohatgi, learned Senior Counsel further
submitted before this Court that the continuity of the

¶51

Page 5 of 41

¶52

Umesh Malani

¶53

Judgment.WP1805.2021+.doc

¶54

proceedings against the Petitioners would be nothing
but an abuses of process of law.

¶55

5.It was submitted by Mr. Rohatgi, learned
Senior Counsel appearing for Petitioners in
WP/1805/2021 & Dr. Chandrachud appearing for Petitioner
in WP/6812/2021 that a detailed order was passed by

¶56

this Court refers to the points urged before this Court
and the observations thereon. It was submitted that the
observations of this Court are on the merits of the

¶57

Petition and it covers the major contentions raised in
the Petition as such, it assumes importance. For ready
reference, we may quote the relevant observations of
the Division bench in the order dated April 27, 2021 as

¶58

under:

¶59

2]Mr. Amit Desai, learned senior
counsel appearing on behalf of the
petitioners submitted that complaint
lodged by respondent no. 2 (original
complainant) leading to registration of
aforesaid FIR was absolutely malafide and
part of similar attempts made earlier
against the petitioners by certain persons
seeking to initiate criminal proceedings
on the basis of false and frivolous
allegations, so as to extract money from
the petitioners. Attention of this Court
was invited to certain complaints filed in
the name of various persons at the behest

¶60

Page 6 of 41

¶61

Umesh Malani

¶62

Judgment.WP1805.2021+.doc

¶63

of Ram Mani Panday and Kislay Panday who
claimed to be lawyers running a law firm
called ‘Magnum Juris’. It was emphasized
that petitioners initiated criminal
proceedings against such persons seeking
to extract money from them leading to
registration of F.I.R. in the matter.
Petitioner no. 1 company also filed a suit
in the year 2019 against the said Ram Mani
Panday and his associates and in the said
suit, Delhi High Court had temporarily
injuncted defendants from disseminating
and publishing allegations against the
petitioner no. 1 company as it was leading
to grave financial loss and loss of
reputation. It was also brought to our
notice that bail application filed by
accused Ram Mani Panday was rejected by
Punjab and Haryana High Court making
scathing observations against modus
operandi adopted by said person and his
associates.

¶64

3]Learned senior counsel also brought
to the notice of this Court that there was
one Public Interest Litigation in the
Delhi High Court i.e. WP (Civil) 9887/2019
(Citizens Whistle Blower Forum V. Union of
India and Ors) wherein averments were made
raising frivolous allegations against the
Petitioners. The said petition is pending
and according to learned senior counsel
for the petitioners, perusal of affidavits
filed by respondents therein, including
Ministry of Corporate Affairs, Reserve
Bank of India (RBI) and Securities and
Exchange Board of India (SEBI) would show
that there was no substance in the
allegations levelled against the

¶65

Page 7 of 41

¶66

Umesh Malani

¶67

Judgment.WP1805.2021+.doc

¶68

petitioner. It was then submitted that in
the present case, respondent no. 2
appeared to have been set up with the said
design of making wild allegations against
the petitioners so as to somehow initiate
criminal proceedings against the
petitioners. It was submitted that
Magistrate in the present case had no
territorial jurisdiction to entertain the
complaint for the reason that respondent
no. 2 admittedly executed a leave and
licence agreement pertaining to room in
Palghar on 26/03/2021 and filed a
complaint before the police authorities on
the very same day levelling aforesaid
allegations against the petitioners. This
was done deliberately to create false
basis for invoking jurisdiction of the
Magistrate. It was further brought to the
notice of this Court that while respondent
no. 2 purchased shares for the first time
on 17/03/2021, within less than 10 days,
he approached the police with his alleged
grievances. He did not wait for the matter
to proceed further and within 4 days i.e.
on 30/03/2021, he approached the higher
authority i.e. Superintendent of Police
and then immediately on 03/04/2021 he
filed the complaint before the Magistrate
under Section 156(3) of the Cr.P.C. On
07/04/2021, Magistrate proceeded to pass
the impugned order directing registration
of F.I.R. According to learned senior
counsel for the petitioner, this was an
absolutely malafide complaint, which the
Magistrate failed to appreciate in the
proper perspective and that there was not
even a prima facie case made out for
registration of FIR. It was further

¶69

Page 8 of 41

¶70

Umesh Malani

¶71

Judgment.WP1805.2021+.doc

¶72

submitted that the complaint in question
did not satisfy the requirements of law as
laid down by the Hon’ble Supreme Court in
the case of Priyanka Srivastava Vs. State
of U.P. (2015) 6 SCC 287 and the judgments
passed by this Court in as much as there
was no affidavit filed in support of the
said complaint before the Magistrate.
Learned senior counsel emphasized that
there were false statements made in the
complaint, verifiable from material on
record, which the Magistrate failed to
appreciate. Learned senior counsel relied
upon the Judgment of the Hon’ble Supreme
Court in the case of State of Haryana V.
Bhajan Lal 1992 Supp (1) SCC 335
particularly category 7 laid down in
paragraph 102 thereof. He also relied upon
Judgments of the Hon’ble Supreme Court in
the case of P. Chidambaram Vs. Directorate
of Enforcement (2019) 9 SCC 24 and in
Neeharika Infrastructure Pvt. Ltd. V.
State of Maharashtra and others [2021 SCC
OnLine SC 315] to contend that a clear
case for grant of stay of investigation
was made out by the petitioners.

¶73

6.While considering the prayers for grant of
interim stay on the backdrop of recent judgment of the
Apex Court in the case of Neeharika Infrastructure Pvt.
Ltd V. State of Maharashtra and others1, the Division
bench made following observations:

¶74

7]Therefore, we need to examine in the
present case as to whether prayer made on

¶75

1 2021 SCC OnLine SC 315

¶76

Page 9 of 41

¶77

Umesh Malani

¶78

Judgment.WP1805.2021+.doc

¶79

behalf of Petitioners for grant of interim
stay of further investigation can be
granted and if so, reasons for the same.

¶80

8]We are conscious of the fact that
since FIR has been recently registered on
13/04/2021, investigation is at nascent
stage and that there ought to be compelling
reasons to favourably consider the prayer
for grant of ad-interim stay of
investigation.

¶81

9]We are proceeding on the basis of
facts discernible from the complaint itself
filed by respondent no. 2 and documents on
record with which respondent no. 2 cannot
have any quarrel. It is evident from the
complaint itself that respondent no. 2 for
the first time purchased shares of
petitioner no. 1 company on 17/03/2021. In
the De-mat account from which respondent
no. 2 purchased the said 500 shares, he is
shown to be resident of Dadar, Mumbai. On
26/03/2021, respondent no. 2 executed a
leave and licence agreement pertaining to a
room at Palghar. It is on that very day
that respondent no. 2 approached the police
Station Wada to raise his alleged grievance
against the Petitioners. Immediately
thereafter, on 30/03/2021, respondent no. 2
went to Superintendent of Poilce, Palghar
claiming that he disclosed facts showing
cognizable offences committed by the
petitioners and other accused persons.
Thereafter, immediately on 03/04/2021,
respondent no. 2 filed the complaint before
JMFC Wada under Section 156 (3) of Cr.P.C.
In the detailed complaint consisting of 92
paragraphs, respondent no. 2 made

¶82

Page 10 of 41

¶83

Umesh Malani

¶84

Judgment.WP1805.2021+.doc

¶85

allegations against the petitioners and
others regarding alleged fraud, siphoning
of money through dummy entities etc. As
noted above, on 07/04/2021, Magistrate
passed the order directing registration of
F.I.R. against the petitioners and others,
on the basis of the aforesaid complaint.

¶86

10]Perusal of the complaint shows that
detailed statements have been made about
alleged fraud committed by petitioners on
innocent investors and the alleged modus
operandi has been stated. Respondent no. 2
has also stated that he came to know about
rigging of shares by promoters/ directors
of the petitioner no. 1, as far as back as
on 10/06/2019. Respondent no. 2 has also
referred to number of litigations filed
before the Hon’ble Supreme Court of India
wherein allegations were made against the
petitioners, which were subsequently
withdrawn. A reference is made to alleged
manner in which funds were diverted by the
petitioners through companies in Mauritius
and pumped back illegally. All this
information, even according to respondent
no. 2, was in the public domain since 2018-
2019 and he was aware about the same. Yet,
admittedly he chose to purchase 500 shares
of petitioner no. 1 company on 17/03/2021.
He had no concern with the said company
till he purchased shares on 17/03/2021 and
that too allegedly knowing fully well from
2019 onwards about the manner in which
petitioners were allegedly committing fraud
and duping innocent investors.

¶87

11]Even as per the complaint, the
respondent no. 2 within less than 10 days

¶88

Page 11 of 41

¶89

Umesh Malani

¶90

Judgment.WP1805.2021+.doc

¶91

of purchasing the shares, found that he was
cheated and approached the police station,
Wada with his grievance. Respondent no. 2
did not wait for the police to examine the
grievance raised by him and immediately
rushed to Superintendent of Police on
30/03/2021 and without waiting for the
senior officer to take any steps in the
matter, within 4 days lodged complaint
dated 03/04/2021 before the Magistrate.
Therefore, from 17/03/2021 when respondent
no. 2 for the first time bought 500 shares
of petitioner no. 1 company to 03/04/2021,
when he rushed to the Magistrate with a
detailed complaint consisting of 92
paragraphs, entire set of grievances of
respondent no. 2 were supposed to have
arisen requiring an order of registration
of FIR under Section 156(3) of Cr.P.C.

¶92

12]These admitted facts prima facie
raise a suspicion about bonafide of
respondent no. 2 and prima facie it appears
that respondent no. 2 has been set up to
initiate criminal proceedings in the
matter. This is accentuated by the admitted
position that respondent no. 2 for the
first time executed a leave and licence
agreement about a room at Palghar on
26/03/2021 and on that very day approached
the police station with his grievances,
prima facie indicating that this modus
operandi was undertaken to foist
jurisdiction on the Magistrate at Wada. No
part of the transaction is shown to have
been undertaken within the jurisdiction of
the Magistrate at Wada or District Palghar.
(Emphasis supplied)

¶93

Page 12 of 41

¶94

Umesh Malani

¶95

Judgment.WP1805.2021+.doc

¶96

14]It is also significant that perusal
of complaint itself would show that details
stated therein running into as many as 92
paragraphs, which appear to be akin to
allegations sought to be made against the
petitioners in the PIL. At this stage,
prima facie it appears suspicious that
respondent no. 2 became aware of all such
alleged facts regarding functioning of the
petitioners in the short period between
17/03/2021 when he purchased shares and
26/03/2021, when he sought to raise the
grievance before Police Station, Wada. It
is also significant that in the complaint,
respondent no. 2 has claimed that he holds
a De-mat account having number 613440 and
that he was involved in regular trading of
shares in the stock market. But, a document
is placed on record by the petitioner to
show that the share register of the
transfer agent of the petitioner-company
has stated as per record that the said De-
mat account bearing no. 613440 is not
connected with respondent no. 2 at all and
that in fact, respondent no. 2 purchased
500 shares of the company for the first
time on 17/03/2021 through De-mat account
1202990006916691 showing the address of
respondent no. 2 at Dadar, Mumbai.
Although, we are aware that such documents
may need further confirmation and they
would be subject to reply of respondent no.
2, nonetheless they prima facie indicate
false statement made by respondent no. 2 in
the complaint itself.

¶97

7.A ground was also raised before this Court

¶98

that the complaint filed by Respondent No. 2 before the

¶99

Page 13 of 41

¶100

Umesh Malani

¶101

Judgment.WP1805.2021+.doc

¶102

Judicial Magistrate was not supported by an affidavit
which is a pre-requiste not only as per the provisions
of law but as per the judgments of the Apex Court as
well as this Court. The Division bench was pleased to
make following observations on that point:

¶103

15]Apart from this, by referring to copy
of the complaint filed by respondent no. 2
on record, it has been strenuously argued
on behalf of the petitioner that complaint
is not supported by an affidavit. We have
perused copy of complaint on record and
prima facie find that the statement appears
to be correct.

¶104

16]In the case of Priyanka Shrivastava
[cited supra] followed by judgments of this
Court in the case of Sayed Anwar Ahmed V.
State of Maharashtra [2017 SCC OnLine Bom
3972] and Devidas V. State of Maharashtra
[2017 SCC OnLine Bom 8416] it has been laid
down that complaints filed before the
Magistrates need to be supported by
affidavit so that the complainant can be
held responsible for allegations and
statements made in the complaint. It has
been laid down that such requirement has to
be satisfied so as to ensure that citizens
are protected from pervert litigations and
complaints filed before the Magistrates for
initiating criminal proceedings only with a
view to harass fellow citizens. Therefore,
prima facie, we find some substance in the
contentions raised in this context on
behalf of the petitioners.

¶105

Page 14 of 41

¶106

Umesh Malani

¶107

Judgment.WP1805.2021+.doc

¶108

8.The Division bench in clear words observed

¶109

that it was the prima facie opinion of this Court that
the complaint filed by Respondent No. 2 appears to be
malafide and deficient as such, this Court was inclined
to grant ad-interim stay. This observations find place
in paragraph 17 of the order and the same reads thus:

¶110

17]As regards the contentions raised on
behalf of respondent no. 2 that since FIR
is already registered, investigation ought
to continue, we are of the opinion that in
view of above, since we prima facie are of
the opinion that the complaint filed by
respondent no. 2 appears to be malafide and
deficient, insofar as the complaint is not
supported by a proper affidavit, ad-interim
stay of the investigation deserves to be
granted.

¶111

9.The Division bench then granted ad-interim
relief in terms of prayer clause ‘b’ and further
observed that since the Division bench had stayed the
investigation the question of taking any further action
on the basis of said FIR would not arise.

¶112

10.It was brought to the notice of this Court
during the pendency of the Petition and post order of
this Court, the investigation was transferred to the
State- CID. As such, this Court made it clear that the

¶113

Page 15 of 41

¶114

Umesh Malani

¶115

Judgment.WP1805.2021+.doc

¶116

orders granting stay to the investigation applies to
the agency to whom the investigation was subsequently
entrusted i.e., the State CID – Pune.

¶117

11.Similarly, in Writ Petition No. 6812 OF 2021
following order was passed by the Division bench on 27th
April, 2021:

¶118

2. This petition arises out of the same
order of the Magistrate and F.I.R., which
are subject matter of Criminal Writ
Petition No. 1805 of 2021.

¶119

3.Insofar as contentions pertaining to
malafide complaint and it being deficient
as it is not supported by affidavit of
Respondent No. 2 (original complainant) are
concerned, Dr. Chandrachud, learned counsel
appearing for the Petitioner has adopted
the submissions made on behalf of the
Petitioners in the said connected writ
petition by Mr. Amit Desai, learned Senior
Counsel. Additionally, it is submitted by
Dr. Chandrachud appearing for the
Petitioner herein that insofar as the said
Petitioner is concerned, there is only one
statement made against him in the entire
complaint filed by the Respondent No. 2,
which is at paragraph 84 of the complaint.

¶120

4.By inviting our attention to the
said paragraph, the learned counsel
submitted that even if the statement made
therein is accepted as it is, only a non-
cognizable offence under Section 86 read
with 439 of the Companies Act, 2013, can be

¶121

Page 16 of 41

¶122

Umesh Malani

¶123

Judgment.WP1805.2021+.doc

¶124

alleged pertaining to no charge being filed
with the Ministry of Corporate Affairs
regarding loan advances. On this basis, it
is submitted that the order passed by the
Magistrate dated 7 th April, 2021 under
Section 156(3) of Cr.P.C. shows total non
application of mind, insofar as it directs
registration of F.I.R. against the
Petitioner.

¶125

5.In the order passed today in Writ
Petition No. 1805 of 2021, we have already
stated detailed reasons as to why we have
prima facie found that the complaint filed
by Respondent No. 2 appears to be malafide
and deficient. The same reasons apply in
the present case also. Additionally,
insofar as the present Petitioner is
concerned, the said contention raised
specifically in the context of the
provisions of Companies Act, 2013, also
makes out a prima facie case for stay of
further investigation, against the
Petitioner herein.

¶126

6. Issue notice returnable on 28 th
June, 2021.

¶127

7. Dr. F.R. Shaikh, learned APP waives
service of notice on behalf of Respondent
No.1- State and Mr. Dubey, learned counsel
waives service of notice on behalf of
Respondent No. 2.

¶128

8.In the meanwhile, there shall be ad-
interim relief in terms of prayer clause
(b), which reads as follows :

¶129

“(b) That this Hon’ble Court be pleased to
issue a Writ of Mandamus or any other Writ,
order or direction, directing the

¶130

Page 17 of 41

¶131

Umesh Malani

¶132

Judgment.WP1805.2021+.doc

¶133

Respondent No.1 not to initiate any action
against the Petitioner in furtherance of
FIR bearing No.129 of 2021 dated 13.04.2021
(Exhibit ‘A’ hereto).”

¶134

9.The Respondents may file their
affidavits-in-reply before the returnable
date.

¶135

10.Tag with Writ Petition No. 1805 of
2021.

¶136

12.Mr. Rohatgi vehemently submitted before this

¶137

Court that the complaint filed against the Petitioner

¶138

Company before JMFC, Wada was an act of oblique motive.

¶139

Mr. Rohatgi further submitted that on similar set of
allegations a group consisting of two lawyers and 8-9
Petitioners filed Petition before Apex Court and before
the Petition could get registered, the same was
withdrawn. Filing of the Petition in the Apex Court was
given a wide publicity and because of such negative
publicity, the share value of the Company was reduced
and the company was subjected to certain financial

¶140

loss. Mr. Rohatgi further submitted, it is the
reasonable and bona fide impression of the Petitioner
Company that that some disgruntled business rivals
provoked some private persons for filing complaints.
Thus, Mr. Rohatgi raised questions about the bona fide

¶141

Page 18 of 41

¶142

Umesh Malani

¶143

Judgment.WP1805.2021+.doc

¶144

approach of complainant. Mr. Rohatgi further submitted
that it clearly reveals from the record that Respondent
No. 2 is resident of Dadar, Mumbai and only to achieve
oblique motive against the Petitioner Company he
shifted to Biloshi.

¶145

13.Mr. Rohatgi submitted that Respondent No. 2
can be said to be the kingpin of such disgruntled
elements who are behind the screen and these elements
are the string puller. Mr. Rohatgi further submitted
that Respondent No. 2 who is a permanent resident of
Dadar chooses to hire a accommodation i.e., one room on
leave and license basis for 11 months at Biloshi, Dist.
Palgahr. Mr. Rohatgi further then led critical attack
on the conduct of Respondent No. 2 to submit how the
Respondent No. 2 made untrue statements in the
complaint. By inviting our attention to the copy of the
complaint placed on record and particularly, at page
nos. 258 and 259, Mr. Rohatgi submitted that on one
hand Respondent No. 2 submitted that he is doing
regular share trading and this statement is falsified

¶146

by another statement of Respondent No. 2 in the
complaint itself and it is stated that Respondent No. 2

¶147

Page 19 of 41

¶148

Umesh Malani

¶149

Judgment.WP1805.2021+.doc

¶150

by opening a Demat account on 16.03.2021 at Dadar, for
the first time purchased two lots of share i.e., 800
shares in each lot in the shares of Petitioner Company.
Mr. Rohatgi then submitted that a statement is made in
the complaint at page 260 of the Petition that the
Petitioner lost substantial amount whereas the record
is contrary that there was no loss caused to the
Petitioner Company. Mr. Rohatgi also submitted that
making this initial statement the Respondent No. 2
makes references to the Petition filed before the Apex
Court and then the allegations are practically copied
from the contents of the Petition filed before the Apex
Court by one Yadav. Mr. Rohatgi then submitted that
interestingly enough Mr. Yadav who filed the Petition
before the Apex Court withdrawn the Petition. In
support of his submissions, Mr. Rohatgi invited our
attention to the other material in the complaint.

¶151

14.Mr. Rohatgi also submitted that those

¶152

disgruntled elements who have acted with a designed
motive were brought to the books and one of such
disgruntled element namely, Mr. Pandey who had
approached for grant of bail, the bail was rejected.

¶153

Page 20 of 41

¶154

Umesh Malani

¶155

Judgment.WP1805.2021+.doc

¶156

Mr. Rohatgi further submitted that in a Petition filed
before Delhi High Court as Public Interest Litigation
identical allegations were made against the Petitioner
Company, one another Company namely, DLF Group, Chordia
Group of Company. Mr. Rohatgi further submitted that in
the said Petition the allegations were made submitting
a table with a statement that loan given to Chordia
Group of Company i.e., IBHFL and in the tabular form

¶157

following statement was made :

¶158

`2. Built to`	`-do- 2017-`	`This loan was repaid`
`Live` `Realty`	`18`	`with money Mahalunge` `Land Developers borrowed`
`LLP`		`from IBHFL. A copy of`
		`Balance Sheet of Built`
		`To Live Realty FY 2017-`
		`18 is annexed herewith`
		`as Annexure P34.`

¶159

15. Mr. Rohatgi by inviting our attention to the

¶160

statement immediately after the table submitted that it
was admitted in the statement that the loan taken from
the Petitioner Company was repaid by its sister
concerned. Mr. Rohatgi then invited attention to the
documents placed on record under caption “Common
Allegation Against Re. Harish Fabiani PIL filed before
the Delhi High Court- Writ Petition No. 9887 of 2019”
urged that in the complaint filed before the Magistrate

¶161

Page 21 of 41

¶162

Umesh Malani

¶163

Judgment.WP1805.2021+.doc

¶164

all these allegations against Mr. Harish Fabiani are
reiterated. Thus, it was the submission of Mr. Rohatgi
that filing of these baseless complaints before various
Courts, in different parts of the country against the
Petitioner Company, is a modus operandi of the
disgruntled elements. Mr. Rohatgi submitted that the
Respondent No. 2 before approaching Magistrate had not
raised any grievance before the competent forum for
redressal of his grievance such as, SEBI or RBI. Mr.
Rohatgi further submitted that it is not submitted in
the reply filed by Ministry of Corporate Affairs and
RBI before Delhi High Court that the Petitioner Company
has played any mischief or conducted any misdeeds. In
an Petition filed at Delhi High Court against the
Petitioner, RBI filed its reply and it was submitted in
the reply that the Petition may be dismissed. It is
further submitted that even though in the present
Petition the reply is filed by RBI and it is stated
that the authority had conducted the scrutiny and found
that the loans obtained by the Petitioner Company were
repaid.

¶165

16.Mr. Rohatgi vehemently submitted that the

¶166

Page 22 of 41

¶167

Umesh Malani

¶168

Judgment.WP1805.2021+.doc

¶169

lodgment of the report against the Petitioner Company
and continuity of any proceedings arising out of said
complaint would be nothing but an abuse of process law.
Mr. Rohatgi vehemently submitted that the case of
Petitioner squarely falls in the categories framed by
the Apex Court in oftenly quoted judgment of State of
Haryana and Others Vs. Bhajan Lal and Others2 and
particularly in category 7.

¶170

17.In so far as the submission of selected
jurisdiction by Respondent No. 2 is concerned, Mr.
Rohatgi placed heavy reliance on the latest judgment of
the Apex Court in the matter of Vijay Kumar Ghai and
Others Vs. State of West Bengal and Others3.

¶171

18.In so far as other submission that filing of
the affidavit with complaint is a pre-requisite, Mr.
Rohatgi placed heavy reliance on following judgments :
Devidas Vs. State of Maharashtra4, Priyanka Srivastava
and Another Vs. State of Uttar Pradesh and Others5, &
Babu Venkatesh and Others Vs. State of Karnataka and

¶172

Another6.

¶173

2 1992 Supp (1) SCC 335.

¶174

3 2022 SCC OnLine SC 344

¶175

4 2017 SCC OnLine Bom 8416

¶176

5 (2015) 6 SCC 287

¶177

6 2022 SCC OnLine SC 200

¶178

Page 23 of 41

¶179

Umesh Malani

¶180

Judgment.WP1805.2021+.doc

¶181

19.Mr. Desai, learned Senior Counsel while

¶182

supporting the submissions of Mr. Rohatgi further added
that the Petitioner Company is not only required to
face wholly untrue allegations submitted in the
complaint and to undergo the rigors of law, but also
such false complaint adversely affects the reputation

¶183

of Petitioner Company and impact of such false
complaint results in falling of share value in the
market and resultantly, the Petitioner Company has to
suffer a huge financial loss and this loss is certainly
an irreparable. Mr. Desai also submitted that the Board
of Directors of the Petitioner Company consists of
various reputed persons who were occupying responsible
position(s) in different walks of life. It was
submitted that the Board of Directors consists of
Former Judge of the Supreme Court of India, Retired
Senior Officer of the Reserve Bank of India, Retired
Director General of Police and complaint lodged with
some designed motive only adding pages after pages
borrowed from a some other Petition, if entertained by
the Magistrate and orders are passed by the Magistrate
on such complaint without application of mind, the same

¶184

Page 24 of 41

¶185

Umesh Malani

¶186

Judgment.WP1805.2021+.doc

¶187

would have serious irreversible repercussion and in
such in the case like this, this Court can certainly
exercise its powers under Section 482 of Code of
Criminal Procedure to prevent the abuses of process of
law. Thus, learned Counsel appearing for Petitioners
prayed for allowing the Petition.

¶188

20.Dr. Chandrachud, learned Counsel appearing for
Petitioner in WP/6812/2021 adopted major submissions of
Mr. Rohatgi & Mr. Desai, learned Senior Counsel
appearing for Petitioner in WP/1805/2021. Mr.
Chandrachud submitted that the allegations against the
Petitioner – Atul Chordia are only vague allegations
that loan was obtained but there is not specific any
material in so far as how much loan amount was
obtained, how much amount was repaid, what was the
collateral security against the loan and without there
being any such specific material only the allegations
were made that by illegal means the loan was obtained.
Mr. Chandrachud further submitted that the Petitioner
is a real estate developer and contrary to the
allegations against the Petitioner there is a specific
material to show that the Petitioner had obtained the

¶189

Page 25 of 41

¶190

Umesh Malani

¶191

Judgment.WP1805.2021+.doc

¶192

loan by following due procedure. If the Petitioner had
obtained the loan by illegal means and failed to repay
it, he could have been certainly declared as defaulter
and the financial institutions like Bank certainly
would have initiated proceedings against the Petitioner
by taking recourse to SARFEASI Act, but no such action
is taken. Mr. Chandrachud then submitted that the
Respondent No. 2 is not even purchaser of any property
from the Petitioner and as such, there was absolutely
no locus for Respondent No. 2 to lodge any report /
complaint against the Petitioner. In support of his
submissions, Mr. Chandrachud relied on following
judgments: Babasaheb Narayan Naik and Others Vs. State
of Maharashtra and Others7, & Sudhir Rangrao Patil Vs.
State of Maharashtra8.

¶193

21.Mrs. A.S. Pai, learned Public Prosecutor
opposed the Petitions and submitted that during
pendency of the Petitions the investigation is
transferred to State CID, Pune, and investigation is at
preliminary stage, let the investigation be completed
and prayed for dismissal of Petition.

¶194

7 2019 SCC OnLine Bom 3003

¶195

8 2017 SCC OnLine Bom 8915

¶196

Page 26 of 41

¶197

Umesh Malani

¶198

Judgment.WP1805.2021+.doc

¶199

22.Mr. Akhilesh Dubey, learned Counsel appearing
for Respondent No. 2 in both Petitions vehemently
opposed the Petitions. Learned Counsel for Respondent
No. 2 submitted that the Petitioner is having no
concern with Petition filed in Delhi High Court at the
instance of one Mr. Atul Pandey and the Petitioner by
connecting itself with Atul Pandey cannot dislodge the
Respondent. It is submitted that in one of the Petition
filed before Delhi High Court at the instance of
Citizen Whistle Blower Forum which consists of reputed
persons including Prashant Bhushan, Senior Advocate,
certain orders were passed by Delhi High Court. It is
submitted that it came to his knowledge that one
Petition was filed before Delhi High Court only through
news paper, except this he is not connected with said
Abhay Yadav. Learned Counsel appearing for Respondent
No. 2 admits that Respondent No. 2 had not approached
to the authorities like SEBI or RBI and submitted that
as the Respondent No. 2 had lodged the complaint
against the Petitioners for their misdeeds the
Respondent No. 2 expected that on registration of FIR
against the Petitioner Company the investigating agency

¶200

Page 27 of 41

¶201

Umesh Malani

¶202

Judgment.WP1805.2021+.doc

¶203

would take appropriate steps during the course of
investigation including seeking necessary information
from SEBI and RBI. It is also submitted that because of
filing of Public Interest Litigation the share value of
the Petitioner Company was reduced and certain
Directors of the company purchased the shares at lower
value for their own benefit even at the cost of loss of
reputation to the company. It is also submitted that by
playing mischief the Petitioner Company helped the
beneficiaries namely, Jasol Investment and Trading
Company Pvt. Limited. It is then submitted that
Respondent No. 2 had filed the annual reports of the
company along with complaint. It is also submitted that
non sworning of the affidavit in support of the
complaint is a curable defect.

¶204

23.Learned Counsel appearing for Respondent No. 2
further submitted that there was diversion of funds by
certain private persons. The funds were diverted and
routed through Mauritius and in support of this
submission, the Counsel referred to the material in the
complaint placed on record at pages 271, 272, 283. It
is then submitted that the Respondent No. 2 had placed

¶205

Page 28 of 41

¶206

Umesh Malani

¶207

Judgment.WP1805.2021+.doc

¶208

on record all the relevant material and as observed by
the various Courts the FIR is not an encyclopedia, the
investigating agency is required to investigate into
the complaint and collect the necessary material.
Learned Counsel appearing for Respondent No. 2
submitted that even though Petitioner raises certain
questions in so far as locus of Respondent No. 2 and
even assuming that the malafides are against the
Respondent No. 2, the Petitioner cannot absolve itself
from the criminal liability. It is further submitted
that any person set the criminal law in motion and the
allegations of malafide against the Respondent No. 2
cannot be a reason for quashing the report. Learned
Counsel for Respondent No. 2 vehemently submitted that

¶209

the order of this Court granting stay to the
investigation be vacated and investigation agency be
permitted to continue with the investigation. Learned
Counsel appearing for Respondent No. 2 in support of
its submissions relied on following judgments: A.R.

¶210

Antulay Vs. Ramdas Sriniwas Nayak and Another9, Sheno
Nandan Paswan Vs. State of Bihar and Others10, Trisuns

¶211

10 AIR1987 SC 877

9 AIR 1984 SC 716

Page 29 of 41

Umesh Malani

Judgment.WP1805.2021+.doc

¶216

Chemical Industry Vs. Rajesh Agarwal and Others11,
Shakson Belthissor Vs. State of Kerala and Another12,
Umesh Kumar Vs. State of Andhra Pradesh and Another13,
State of Karnataka Vs. M. Devendrappa and Another14,
Kaptan Singh Vs. State of Uttar Pradesh and Others15,
Ghulam Mohi-ud-Din Vs. State of J&K and Others16,

¶217

Naroji Vs. State of Maharashtra17, Mrs. Rita Bhalla and
Anr Vs. State (Govt of NCT of Delhi) and Anr18, & Harish
Fabiani & Others Vs. Enforcement Directorate and

¶218

Others19.

¶219

24.On hearing the learned Counsel appearing for
respective parties and on going through the material
placed on record, we find considerable merit in the
submissions of learned Counsel appearing for
Petitioners.

¶220

25.Perusal of the complaint submitted by
Respondent No. 2 shows that the Respondent No. 2
submitted that he is working with one Illuminati

¶221

11 (1999) 8 SCC 686

¶222

12 (2009) 14 SCC 466

¶223

13 (2013) 10 SCC 591

¶224

14 (2002) 3 SCC 89

¶225

15 2021 CRI.L.J. 3922

¶226

16 CRMC No. 761/2017 (High Court of Jammu and Kashmir)

¶227

17 2019 SCC OnLine Bom 3928

¶228

18 Crl.M.C. 3532/2016 + Crl.M.C.3533/2016 (High Court of Delhi)

¶229

19 WP(CRL).408/2022 (High Court of Delhi)

¶230

Page 30 of 41

¶231

Umesh Malani

¶232

Judgment.WP1805.2021+.doc

¶233

services as Office Clerk since last couple of years and
it is admitted in the complaint that the complainant is
residing at Biloshi, Tq. Wada, District Palghar on
leave and license basis since 26.03.2021.

¶234

Thus, there is merit in the submission of
learned Senior Counsel appearing for the Petitioner
that the Respondent No. 2 with a designed motive
shifted his residence in Tq. Wada only to select the
jurisdiction of the Wada Court.

¶235

26.Perusal of the complaint further shows that it
is stated in the complaint that Respondent No. 2 is
regularly trading in shares but the complaint clearly
discloses that the Respondent No. 2 purchased the
shares of the Petitioner Company only in one solitary
instance. Then the complaint run in nearly 40 pages.
The complaint refers to the Public Interest Litigation
bearing Writ Petition (Criminal) Diary No. 20710/2019
before the Supreme Court of India by one Mr. Abhay
Yadav. Then there are allegations against one Jasol
Investment and Trading Company. Then reference is made
to AmeriCorp Capital Private Limited advancing loans to

¶236

the Petitioner company. Then there are allegations

¶237

Page 31 of 41

¶238

Umesh Malani

¶239

Judgment.WP1805.2021+.doc

¶240

against one Mr. Harish Fabiani stating that Mr. Harish
Fabiani by playing mischief and fraud diverted certain
funds to other country. The Judicial Magistrate by
referring to mere allegations in the complaint observed
that as per offences as alleged in the complaint a huge
amount is siphoned of.

¶241

27.It seems that Magistrate was influenced by the
lengthy complaint placed before him and arrived at a
conclusion that there was a diversion of huge monetary
funds to the tune of Rs. 300 crores and the money was
transferred to other country i.e., Mauritius.
Admittedly, it was only allegations in the complaint
and except bare words of the complainant there was no
other material before the Magistrate to form such an
opinion as such, there is merit in the submissions of
learned Senior Counsel Mr. Rohatgi that the Magistrate
without applying his mind passed mechanical order under
Section 156(3) of Code of Criminal Procedure.

¶242

28.Learned Counsel appearing for Petitioners were
justified in making submissions that the Respondent No.
2 who is a resident of Dadar with some designed motive
shifted to Biloshi, Tq. Wada, Dist. Palghar, obtained a

¶243

Page 32 of 41

¶244

Umesh Malani

¶245

Judgment.WP1805.2021+.doc

¶246

room on leave and license basis and lodged a complaint
before the JMFC, Wada. The complaint also reveals that
the Respondent No. 2 had purchased 800 shares in two
lots by opening Demat account from Dadar and this was
solitary transaction of the Petitioner. As such, the
claim of the Respondent no. 2 that he was regularly
trading in shares is falsified. It is also difficult to
believe that the Respondent No. 2 complainant was in a
position to study the balance sheet of the Petitioner
for a past several years in a very limited span of
purchasing the shares and lodging the report to the
Magistrate so as to arrive at a conclusion that the
Petitioner Company has siphoned the amount and played
mischief.

¶247

29.There is also merit in the submissions of Mr.

¶248

Rohatgi, learned Senior Counsel that the majority
material in the complaint is the replica of the
material which was filed in the complaint which was the
subject matter of Petition before Delhi High Court and
though the Respondent No. 2 denied any connection with
Mr. Yadav who had filed the Petition before Delhi High
Court, there is a reason to believe that there was some

¶249

Page 33 of 41

¶250

Umesh Malani

¶251

Judgment.WP1805.2021+.doc

¶252

nexus of the Respondent No. 2 and Mr. Yadav.

¶253

30.Though, learned Counsel appearing for
Respondent No. 2 relies on the judgments and there
cannot be any dispute on the proposition of law
expressed in the judgment, considering the peculiar
facts referred to above by us, in our opinion, the
judgments relied on by learned Counsel appearing for
Respondent No. 2 are not of any help to Respondent No.
2.

¶254

31.Learned Counsel appearing for Petitioners were
also justified in submitting that the complaint
submitted by Respondent No. 2 was lacking of the basic
requirement i.e., an affidavit supporting the contents
in the complaint. Though, learned Counsel appearing for
Respondent No. 2 made an attempt to submit that the
defect in the complaint was curable, but in view of the
judgments of the Apex Court in the matter of Priyanaka
Srivastava(supra) & Babu Venkatesh and Others (supra),

¶255

we are unable to accept the submission and it will have
to hold that the complaint lodged at the instance of
Respondent No. 2 was defective. It may be useful for
our purposes to refer to observations made in the

¶256

Page 34 of 41

¶257

Umesh Malani

¶258

Judgment.WP1805.2021+.doc

¶259

matter of Priyanka Srivastava (supra) as under:

¶260

27. Regard being had to the aforesaid
enunciation of law, it needs to be
reiterated that the learned Magistrate has
to remain vigilant with regard to the
allegations made and the nature of
allegations and not to issue directions
without proper application of mind. He has
also to bear in mind that sending the
matter would be conducive to justice and
then he may pass the requisite order. The
present is a case where the accused persons
are serving in high positions in the bank.
We are absolutely conscious that the
position does not matter, for nobody is
above law. But, the learned Magistrate
should take note of the allegations in
entirety, the date of incident and whether
any cognizable case is remotely made out.
It is also to be noted that when a borrower
of the financial institution covered under
the SARFAESI Act, invokes the jurisdiction
under Section 156 (3) Cr.P.C. and also
there is a separate procedure under the
Recovery of Debts due to Banks and
Financial Institutions Act, 1993, an
attitude of more care, caution and
circumspection has to be adhered to.

¶261

28. Issuing a direction stating “as per
the application” to lodge an FIR creates a
very unhealthy situation in the society and
also reflects the erroneous approach of the
learned Magistrate. It also encourages the
unscrupulous and unprincipled litigants,
like the respondent no.3, namely, Prakash
Kumar Bajaj, to take adventurous steps with
courts to bring the financial institutions

¶262

Page 35 of 41

¶263

Umesh Malani

¶264

Judgment.WP1805.2021+.doc

¶265

on their knees. As the factual exposition
would reveal, he had prosecuted the earlier
authorities and after the matter is dealt
with by the High Court in a writ petition
recording a settlement, he does not
withdraw the criminal case and waits for
some kind of situation where he can take
vengeance as if he is the emperor of all he
surveys. It is interesting to note that
during the tenure of the appellant No.1,
who is presently occupying the position of
Vice-President, neither the loan was taken,
nor the default was made, nor any action
under the SARFAESI Act was taken. However,
the act ion under the SARFAESI Act was
taken on the second time at the instance of
the present appellant No.1. We are only
stating about the devilish design of the
respondent No.3 to harass the appellants
with the sole intent to avoid the payment
of loan. When a citizen avails a loan from
a financial institution, it is his
obligation to pay back and not play truant
or for that matter play possum. As we have
noticed, he has been able to do such
adventurous acts as he has the embedded
conviction that he will not be taken to
task because an application under Section
156 (3) Cr.P.C. is a simple application to
the court for issue of a direction to the
investigating agency. We have been apprised
that a carbon copy of a document is filed
to show the compliance of Section 154 (3),
indicating it has been sent to the
Superintendent of police concerned.

¶266

29. At this stage it is seemly to state
that power under Section 156 (3) warrants
application of judicial mind. A court of

¶267

Page 36 of 41

¶268

Umesh Malani

¶269

Judgment.WP1805.2021+.doc

¶270

law is involved. It is not the police
taking steps at the stage of Section 154 of
the code. A litigant at his own whim cannot
invoke the authority of the Magistrate. A
principled and really grieved citizen with
clean hands must have free access to invoke
the said power. It protects the citizens
but when pervert litigations takes this
route to harass their fellows citizens,
efforts are to be made to scuttle and curb
the same.

¶271

30.In our considered opinion, a stage
has come in this country where Section 156
(3) Cr.P.C. applications are to be
supported by an affidavit duly sworn by the
applicant who seeks the invocation of the
jurisdiction of the Magistrate. That apart,
in an appropriate case, the learned
Magistrate would be well advised to verify
the truth and also can verify the veracity
of the allegations. This affidavit can make
the applicant more responsible. We are
compelled to say so as such kind of
applications are being filed in a routine
manner without taking any responsibility
whatsoever only to harass certain persons.
That apart, it becomes more disturbing and
alarming when one tries to pick up people
who are passing orders under a statutory
provision which can be challenged under the
framework of said Act or under Article 226
of the Constitution of India. But it cannot
be done to take undue advantage in a
criminal court as if somebody is determined
to settle the scores. We have already
indicated that there has to be prior
applications under Section 154 (1) and 154
(3) while filing a petition under Section

¶272

Page 37 of 41

¶273

Umesh Malani

¶274

Judgment.WP1805.2021+.doc

¶275

156 (3) . Both the aspects should be
clearly spelt out in the application and
necessary documents to that effect shall be
filed. The warrant for giving a direction
that an the application under Section 156
(3) be supported by an affidavit so that
the person making the application should be
conscious and also endeavour to see that no
false affidavit is made. It is because once
an affidavit is found to be false, he will
be liable for prosecution in accordance
with law. This will deter him to casually
invoke the authority of the Magistrate
under Section 156 (3) . That apart, we have
already stated that the veracity of the
same can also be verified by the learned
Magistrate, regard being had to the nature
of allegations of the case. We are
compelled to say so as a number of cases
pertaining to fiscal sphere, matrimonial
dispute/familydisputes,commercial
offences, medical negligence cases,
corruption cases and the cases where there
is abnormal delay/laches in initiating
criminal prosecution, as are illustrated in
Lalita Kumari20 are being filed. That apart,
the learned Magistrate would also be aware
of the delay in lodging of the FIR.
(Emphasis supplied)

¶276

32.There is also merit in the submissions of
learned Counsel appearing for Petitioners that though
it was alleged in the complaint that one Mr. Harish
Fabiani had obtained loan and misutilized the loan
amount, the document placed on record and relied on by

¶277

20 (2014) 2 SCC 1: (2014) 1 SCC (Cri) 524

¶278

Page 38 of 41

¶279

Umesh Malani

¶280

Judgment.WP1805.2021+.doc

¶281

Mr. Rohatgi, learned Senior Counsel demonstrates that
the said loan was repaid.

¶282

33.We also find merit in the submissions of Dr.
Chandrachud appearing for Petitioner in WP/6812/2021
that the Respondent No. 2 failed to provide necessary
details in the complaint and only vague statements were
made. Mr. Chandrachud justified in submitting that if
the Petitioner could have failed in repayment of the
loan the financial institution certainly would have
initiated action against the Petitioner treating him
either as defaulter or would have initiated proceedings
by taking recourse to SARFEASI Act.

¶283

34.The replies filed before the Delhi High Court
at the instance of RBI and Ministry of Corporate
Affairs is also not making any positive statement so as
to hold that the Petitioner Company had played some
mischief causing financial loss to this shareholder.

¶284

35.The submission of learned Counsel appearing

¶285

for Respondent No. 2 that the Directors of the
Petitioner Company were instrumental to file the
Petition against the Petitioner Company itself at Delhi

¶286

Page 39 of 41

¶287

Umesh Malani

¶288

Judgment.WP1805.2021+.doc

¶289

High Court and thereby permitting to reduce the share
value of the Company at the cost of loss of reputation
to the Petitioner Company, cannot be accepted as no
specific material supporting this statement is placed
on record and further it would not stand to reason or
logic that the Directors of Petitioner Company would
permit themselves for reduction of share value of the
Petitioner Company at the cost of loss to the
reputation.

¶290

36.The Division bench of this Court also find
some merit in the contentions raised at the preliminary
stage itself and granted interim relief by passing a
detailed and reasoned order.

¶291

37.In our opinion, Mr. Rohatgi, learned Senior
Counsel justified in making submission that the case of
Petitioner is squarely covered by categories laid down
by the Apex Court in the matter of State of Haryana &
Others Vs. Bhajan Lal & Others (supra) and particularly
category 7.

¶292

38.We are of the opinion that the lodgment of the
complaint against the Petitioners and continuity of the

¶293

Page 40 of 41

¶294

Umesh Malani

¶295

Judgment.WP1805.2021+.doc

¶296

proceedings, is an abuse of process of law. Thus, these
are the fit cases for exercising inherent powers of
this Court under Section 482 of Code of Criminal
Procedure, 1973 to secure the ends of justice.
Accordingly, both Writ Petitions are allowed in terms
of prayer clause ‘a’. Rule made absolute.

¶297

Page 41 of 41

¶298

Umesh Malani

Indiabulls Housing Finance Ltd. Thr Uma Salma Mansuri and Ors. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Indiabulls Housing Finance Ltd. Thr Uma Salma Mansuri and Ors. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Vardhishnu Magasvargiya Bahuudeshiya Samajik Sanstha Vs the State of Maharashtra and Ors.

Adarshkumar @ Mogya Hindurao Landge and Anr. Vs Mahesh Shankar Gavandare and Anr.

Santoshkumar Ram Singh and Anr. Vs State of Maharashtra and Ors.

Harita Sunil Parab and Anr. Vs Shivani Vichare and Ors.

Vaibhav Atmaram Kokate and Ors. Vs the State of Maharashtra and Ors.

Rashmi Ranjan Patra and Anr. Vs the State of Maharashtra and Anr.