Can a creditor file FIR u/s 420, 467, 471, 120B against private company or NCLT

[Khozim Nagarwala]

I am unsecured creditor of a private company since 4 years and was appointed executive director also but not given any shares. The present directors are also sole shareholders and they resigned me as director by forging signature on my resignation letter and fraudently asked me to subscribe for digital signature certificate. DSC was made, but before it is delivered to me after 5 days, the directors or CA have taken delivery of my DSC from the DSC company and uploaded my resignation to ROC using my DSC.
They had last year given cheque, but it is bounced.
Now I am not a director as per company records, do not have share and fighting 138 cheque bounce case.
I filed FIR 3 months before against the company and directors who are in anouther state and city u/s 420, 467, 471, 120B.
Also when I am out of country during 7 months and at that time I was director, there have been Board of Director meetings and resolutions signed by all 11 directors. Although I did not sign or attend any meeting or Resolution, in each such document my signature is forged and signed by somebody else and company affairs and decisions and distribution of shares were conducted.
Police have siezed my original documents having fake resignation signed letter and 14 documents of BOD and resolutions having my forged signatures.

Sir now the QUESTION IS – The police is having second thoughts of pursuing the FIR or filing Charge sheet for reason orally told to me by inspector that cheating is not proved, forgery of signs need forensic report which takes 1-2 years in Maharashtra and that the company is in another jurisdiction and that the offences of fraud, cheating, forgery is already covered in Companies act 2013.

Sir –
1) Please advice who to do – I mean contact ROC which is in another state or pursue criminal case from my residence through court
2) Should I also file a money suit or civil suit in the jurisdiction of company address to restrain the company to sell any asset or create additional charge on the
only company land on which they are constructing commercial premises as by the time I win my 138 cheque bounce case, they may end up selling all assets and claim inability to pay due to insufficient profits in business

Sir Please help me. I have lost all my life and family savings. My career and job has been lost and I have no job now and these directors are continuing to enjoy my huge funds and doing business while I am tremendously suffering.
My email is kozimyn@yahoo.com and my mobile is 7276773652

[Dr. Ashok Dhamija]

Firstly, please note that the offences under Section 420, 467 IPC (cheating, fraud, forgery, etc.) have not been effaced from the IPC, and even today these sections are applied in offences related to companies, wherever they are applicable. The offences under the Companies Act may be in addition to IPC, but they cannot replace IPC offences wherever IPC offences are made out in a specific factual matrix.

Secondly, unlike the civil law, in criminal law the jurisdiction is decided on the basis of cause of action (i.e., where the offence took place) and not on the basis of where the company (or accused or complainant) is located or residing. If the police station where the FIR is registered has come to the conclusion that the offence is made out in some other jurisdiction, on the above criterion of cause of action, they can transfer the FIR for further investigation to the concerned police station.

Thirdly, while the forensic examination may take time, if there is a prima facie evidence available otherwise at least for one or more of the offences, the police would generally file charge sheet without waiting for the result of the forensic examination, and the result of the forensic examination is submitted to the court later whenever it is received.

Fourthly, forensic examination is definitely a good evidence to prove forgery. But, there are other ways also to prove forgery of signature or handwriting, such as, for example, examination of relevant witnesses. So, meanwhile, while waiting for forensic examination, police can try to collect other evidence about forgery, if any such other evidence is available.

Fifthly, for recovery of the loan given by you, you may have to file civil suit in the competent court. In that civil suit, you may seek interim injunction against sale of assets by the opposite party.

Sixthly, if the loan amount is more than Rs. 1 lakh, you should be in a position to initiate a “corporate insolvency resolution process” in NCLT (National Company Law Tribunal) under the provisions of the Insolvency and Bankruptcy Code, 2016. Consult some local lawyer with your documents.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Khozim Nagarwala]

Sir… Thank you so much for clarifying many issues in my questions.
However Sirji, as per your reply, I need some clarifications as below :

I sent money by RTGS from Ahmednagar-Maharashtra to Private Ltd Company address in Udaipur-Rajasthan. They did not give me shares or agreement for next 2 years and then made me Director. After 10 months they fraudulently resigned me (not removed) as Director by forging my sign on fake resignation letter. The resignation letter has my residential address Ahmednagar. There is no mark on letter by which it shows that the Directors have received by hand or by post from me. Resignation letter is dated 20-12-2015, BOD meeting to approve my resignation is dated 20-12-2015, Acknowledgement of company intimating me my resignation is approved is also dated 20-12-2015, but I never received the acknowledgement nor there is any mark on the paper. The originals of all these docs are with Ahmednagar police.

But now Directors are claiming to police that I gave this letter to CA of company directly after I have filed FIR u/s 420, 467, 120B etc in Ahmednagar police station against all Directors who reside in Udaipur. There is one cheque and undertaking they had given me in Udaipur in Feb 2016, but it is bounced and 138 case is filed by me against all directors and company in Ahmednagar court.
But police is last week claiming alleged offence of resignation has happened in Udaipur and cheating has not happened in my case or is not yet proved due to waiting for forensic evidence. But Sir, the company has not given me any penny since 4 years. My amount is reflecting in their last 4 Balance sheets. What they claim – they have no evidence but just a statement to not pay me.

Also Sir, 14 other documents ORIGINAL have been seized by police from CA office in Udaipur and they also have my forged signatures as Director of company, but that time sir I was in Abudhabi-UAE and never attended any BOD meetings or signed these resolutions. My passport has proof of Exit from Indiaand Entry after 8 months

Please advice Sir if the jurisdiction of my case is in Ahmednagar or Udaipur and; if this primafacie indicates cheating case and; if cause of action is from Ahmednagar or Udaipur.

[Dr. Ashok Dhamija]

Please see policy guidelines of this Forum, it is not possible for us to give definitive opinion on the detailed facts of a case on this forum since we have not seen the detailed documents of the case. You should consult some local lawyer on the detailed facts of your case by showing him your case papers.

However, let me point out that Section 178 of the Cr.P.C. lays down that where it is uncertain in which of several local areas an offence was committed, or where an offence is committed partly in one local area and partly in another, or where an offence is a continuing one, and continues to be committed in more local areas than one, or where it consists of several acts done in different local areas, then such case may be inquired into or tried by a Court having jurisdiction over any of such local areas. Therefore, if part transactions of the case have taken place at more than one place, then police at all such places may have the power to investigate. In view of this legal position, you can get your facts examined and decide the jurisdiction.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Khozim Nagarwala]

Thank you so much Sir. You are certainly giving great service in this Forum.

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