JUDGMENT :

M.W. CHANDWANI, J.

1. Heard.

2. Rule. Rule made returnable forthwith. Heard finally by consent of the learned Counsel for the parties.

3. These criminal writ petitions challenge the same order dated 23.08.2021 passed by Judicial Magistrate First Class (for short “the learned Magistrate”), Court No. 1, Nagpur directing to carry out investigation under section 156(3) of the Criminal Procedure Code, 1973 (for short “the Cr.P.C.”).

4. The petitioner in Criminal Writ Petition no. 900/2021 ex-managing director and the petitioners in Criminal Writ Petition No. 881/2021 and 901/2021 were ex-directors of ‘Global Energy Private Limited’ (for short “the company”), a company registered under the Companies Act, 1956. The company holds a trading licence issued by the Central Electricity Regulatory Commission (for short the “CERC”) under section 14 of the Electricity Act, 2003 (for short “the Act of 2003”). Respondent no. 2 is a generating company within the meaning of the section 2(28) of the Act of 2003 and operates a wind energy generating facility. On 20.09.2010, the company entered into an agreement with respondent no. 2 for sale and purchase of wind energy for a period of ten years. Due to non payments of due by the Company and disputes between the company and respondent no. 2, the agreement dated 20.09.2010 came to be terminated by respondent no. 2. Respondent no. 2 stopped supply of electricity to the Company since October 2013. The arbitration clause of the agreement was invoked by the Company. Meanwhile, respondent no. 2 moved to Maharashtra Electricity Regulatory Commission (for short “MERC”) by fling Petition No. CC/83/2017 and sought recovery of Rs. 1,37,82,778.36/- as principal amount and Rs. 3,78,98,332/- as interest. The prayer of the company that there was an arbitration agreement was not appreciated by the MERC. The company preferred appeal before Appellate Tribunal for Electricity (for short “APTEL”).

5. On 31.01.2017, respondent no. 2 fled a complaint against the company before the Economic Offence Wing (for short “EOW”) Pune. EOW, Pune conducted inquiry and found that the matter is of civil nature. However, on 19.11.2017, respondent no. 2 again lodged complaint with EOW, Nagpur. EOW, Nagpur closed the complaint by observing the transaction to be of civil nature. Meanwhile, proceedings under the Insolvency and Bankruptcy Code, 2016 against the company have been initiated and are pending before National Company Law Tribunal (NCLT). Respondent no. 2 fled an application under section 156(3) of the Cr.P.C. before the learned Judicial Magistrate First Class, Nagpur. By impugned order, the learned Magistrate directed the respondent no. 1 to conduct the investigation in the matter and if need arises, the investigation may be given to respondent no. 3. Pursuant to the direction, respondent no. 1 registered crime no. 392/2021 for the offences punishable under sections 406, 409, 420 r/w. 120-B of the Indian Penal Code, 1860 (for short “the IPC”) against the company and the petitioners and the matter was sent to respondent no. 3 for investigation.

6. Feeling aggrieved with the registration of the First Information Report (FIR), the petitioners have approached to this Court for quashing the FIR and quashing and setting aside the order of the learned Magistrate dated 23.08.2021.

7. Respondent no. 2 fled its reply and opposed the petitions contending that detailed investigation is just and necessary as there are serious charges raised against the petitioners/company. The mandatory provisions of the Act of 2003 including regulations are clearly applicable and govern the relationship between the company and the respondent no. 2. Various cases are pending against the company and there are serious charges against the company. The company/petitioners failed to make payment even on making of demands at various times. The petitioners not only cheated the respondent no. 2, but also misappropriated the amount, thereby, committed the offences