Non-compliance with the mandatory provisions of Section 154(1) and 154(3) Cr.P.C. led to the setting aside of the impugned order and consequential proceedings.

JUDGMENT

Gurvinder Singh Gill, J. - The petitioners assail order dated 07.02.2022 (Annexure P-18) vide which learned JMIC, Gurugram, has ordered for registration of FIR against the petitioners, while exercising powers under Section 156(3) of Cr.P.C.

2. Though, the allegations as levelled in the complaint (Annexure P-15), annexed with application under Section 156(3) Cr.P.C. filed by complainant may not really be relevant for the purpose of adjudication on the legal issues raised before this Court but the same are being briefly stated hereinunder :

(i) that Respondent No. 1/complainant M/s. DMI Finance Private Limited (hereinafter referred to as DMI), is a 'NBFC' (Non-Banking Financial Company) and is into business of providing loans and finances to companies and entities;

(ii) that the accused/petitioners No. 3 to 6 are Directors and Promoters of petitioner No. 1 company i.e. M/s. RCC Infra Ventures Ltd.

(iii) that on 06.06.2016, National Highways Authority of India (NHAI) entered into a contract with M/s Corsan Corviam Construction (hereinafter referred to as 'Corsan') for the purpose of 'four-laning' of a National Highway. Corsan further sub-contracted the work to an unincorporated joint venture between petitioner No. 1 and one RK Infracorp Pvt. Ltd (RKIPL);

(iv) that the accused/petitioners No. 3 to 8 approached complainant DMI and made tall claims about their expertise and experience and represented that since they are undertaking various projects and have raised loans for undertaking such projects, therefore, to avoid any complications, they were proposing to the complainant that loan be provided to a LLP (Limited Liability Partnership) to be incorporated by the accused company with M/s RK Infracorp Pvt. Ltd.(RKIPL).

Accordingly, in July 2018, LLP was incorporated and a loan of ?100 crores was sanctioned, pursuant to loan agreement dated 09.08.2018;

(v) that the accused had represented that initially only an amount of ? 31.75 crores would be required and that the balance will be required to be disbursed later after the project kickstarts. It is alleged that however, shortly after the said amount of ?31.75 crores was disbursed in September 2018, the accused/petitioner No. 3 and 4 repeatedly started requesting for disbursement of more loan amount on one pretext or the other while representing that in case the said amount is not disbursed, the project would slow down or could even come to a halt and that the vendors are building up pressure for the same. It is alleged that the complainant in the interest of the project and to ensure that the same is not stalled and in which case the entire amount could become irrecoverable, disbursed the entire agreed amount of ?100 crores by 29.03.2019;

(vi) that the accused talked the complainant into disbursing another ?20 crores under a Facility Agreement dated 28.6.2019, by citing similar reasons of apprehension of stalling of work;

(vii) however, there was little progress in work and by July 2019, the work came to a standstill;

(viii) that pursuant to several meetings and discussions between complainant and accused in local offices of complainant in Basai and Sector 9-A, Gurugram, a Re-Constitution Deed was executed, enabling DMI to change management of LLP; and

(ix) that on 7.11.2019, NHAI issued a Cure Notice to Corsan and LLP.

Since complainant's interest was also involved, a MOU dated 5.1.2020 was executed. LLP was reconstituted by way of substitution of some partners. Upon re-constitution, it transpired that there was a liability towards vendors and salaries to the tune of about ?52 crores, whereas an amount of ?120 crores had already been advanced to accused. It is alleged that most of the amount had been misappropriated or siphoned off by accused. It was also found that infact the total bill that had been raised was for an amount of ?18 crores only. It is alleged that it came to the notice of complainant that accused/petitioners no. 3 to 8 had prepared forged bills and payment receipts showi