Full Text
(i) Crl. M.C. No. 2053/2010 & Crl.
M.A. No. 7909/2010
SANJAY SHARMA ..... Petitioner
Through: Mr. Neeraj Chaudhary & Mr. Ajay Bhargav, Advocates
Through: Mr. Samrat Nigam & Ms. Ankita Mahajan, Advocates
(ii) Crl. M.C. No. 2054/2010 & Crl.
M.A. No. 7913/2010
NIRMAL JAIN ..... Petitioner
M.A. No. 7915/2010
INDIAN INFOLINE LTD. FORMERLY ..... Petitioner
KNOWN AS INDIAN INFOLINE SECURITIES LTD.
M.A. No. 7920/2010
R. VENKTARAMAN ..... Petitioner
In the above captioned four petitions, quashing of criminal complaint under Section 409/34 of the IPC (Annexure P-6) and trial court's order (Annexure P-1) vide which petitioners have been summoned is sought by petitioners, who are the Chairman, Executive Director and
Branch Manager of Indian Infoline Private Limited Company (henceforth referred to as the ‘accused-company’).
At the outset, learned counsel for petitioners’ had submitted that the grounds on which quashing of the aforesaid complaint and the summoning order is sought are identical and so, with the consent of learned counsel for the parties, the above captioned four petitions are heard together and by this common order these petitions are being disposed of.
The factual background of this case, as emerges from the pre-
Crl.M.C.2053-56/2010 Page 3 summoning evidence of respondent, is as under:-
'I opened a DMAT account in ELITE Stock Management. The said used for the purpose of keeping shares. I purchased 1300 shares of Ispat Industries and 240 shares of JSW steel and keep it in DMAT of ELITE Stock
Management. The copy of the said statement of the holding is
Ex.PW. as CW1/1. After some time, I opened another DMAT account in M/s India Infoline through Sanjay Sharma.
Thereafter, I transferred 1300 and 240 shares to another
DMAT account of M/s India Infoline. Statement of transaction of Indias Infoline is Ex. As CW1/2. I also purchased 15000 shares of TTML and same was keep in M/s
India Infoline account. Statement of holding issued by India
Infoline is Ex. As CW1/3. I used to trade day by day through
India Infoline but always came up that some employees of the
India Infoline used to trade in my account. I raised objection to India Infoline but they carelessly avoid my objection.
Ultimately, I stop the day to day trading and get Rs.54,000/- as profit by day to day trade. I used this day to day trade keeping my shares in pool of India Infoline. When I stopped the trade I asked to India Infoline just to transfer my said shares 15,000/- TTLM, 240 shares of JSW and 1300 shares of ISPAT Industry in my DMAT account from your pool but they did not transfer the said shares in my DMAT account.
Ultimately, I send letter dated 09/5/2005 to the India Infoline to transfer the said shares in my DMAT account. The said letter is Ex. As CW1/4. Copy of the postal receipt is EX.
CW1/5. Copy of the AD card which was received by India
Infoline is EX. CW1/6. I wait some times for the reply of the
India Infoline and also I inquired whether the India Infoline transferred the said shred in my said account or not. I further, send a letter dated 12.9.2005 to India Infoline EX.
CW1/7. Copy of the postal receipt Ex. CW1/8. Copy of the
Crl.M.C.2053-56/2010 Page 4 AD card received by the Indian Infoline EX. CW 1/9. No response or reply from Indian Infoline regarding my letters and transfer of my shares has been received by me and therefore I send a legal notice. Copy of same is Ex. CW1/10 through postal receipt is Ex. CW1/11. There is UPC also which is EX.CW1/12. I complained to the Additional
Commissioner of police on 06/5/2009. One copy of the said application was also dispatched to the SHO Hauz Khas.
Copy of the complaint is WX. CW1/13. Copy of the postal receipt as CW1/14. I did not issue any single slip from from my depository slip issued by the India Infoline and without my depository slip; no one can transfer my shares from my account. All the 10 depository slips EX. Fully CW1/15 colly. I several times telephonically and with personal visit requested to the Shri Sanjay Sharma and R. Venkatraman and Sh.
Nirmal Jain for transferring the said shares but they did not transferred. When I inquired from the India Infoline regarding the status of my DMAT account Mr. Sanjay Sharma, Branch Manager of Indian Infoline replied that you have no shares in your DMAT account. He also said that the said shares has already sold by the company. I state that
Indian Infoline or its employees can not sell my shares from my DMAT account without my permission. The Indian
Infoline has already issued depository slips which is known as instruction slip for selling the shares. Without these clips no broker can sell the shares.’
At the hearing, petitioners’ counsel urged that there is no entrustment of the DMAT shares in question to any of the petitioners and so, they cannot be held to be vicariously liable. Attention of this court is drawn to the complaint (Annexure P-6) to point out that in the entire complaint, the only role attributed to petitioner - Nirmal Jain is that he is
Crl.M.C.2053-56/2010 Page 5 the Chairman of the accused-company. Thus, it is submitted that ingredients of the offence alleged are lacking and so proceedings arising out of the complaint in question ought to be quashed. In support of the above submissions, reliance is placed upon decisions in ‘S K. Alagh Vs.
State of Uttar Pradesh & Ors.’ (2008) 5 SCC 682; Maksud Saiyed Vs.
Sate of Gujrat & Ors.’ (2008) 5 SCC 668; Keki Hormusji Gharda & ors.
Vs. Mehervan Rustom Irani & Anr. (2009) 6 SCC 475; S.M.S.
Pharmaceuticals Limited Vs. Neeta Bhala & Anr. (2005) 8 SCC 89; N K
Wahi Vs. Shekhar Singh & Ors. (2007) 9 SCC 481; State of Haryana Vs.
Bhajan Lal & ors. (1992) Supp (1) SCC 355; Madhavrao Jiwajirao
Scindia & ors. Vs. Sambhajirao Chandrojirao Angre & ors.(1998) Supp
JUDGMENT
(1) 692; Thermax Limited Vs. K M. Johny (2011) 13 SCC 412; Asoke Basak Vs. State of Maharashtra and ors. (2010) 10 SCC 660; Central Bank of India Vs. M/s Asian Global Ltd. & ors. 2010; Sardar Singh Vs. State of Haryana (1977) 1 SCC 463; S.W. Palantikar and ors. Vs. State of Bihar and Another (2002) 6 SCC 736; Indian Oil Corporation Vs. NEPC India Ltd. & ors. (2006) 6 SCC 736; Pepsi Food Limited & Anr. Vs. Special Judicial Magistrate & ors.' (1998) 5 SCC 749; All India Cargo Movers (India) Private Limited & ors. Vs. Dhanesh Badarmal Jain & Anr. (2007) 14 SCC 776; India Infoline Limited & ors. Vs. GHCL Employees Stock Option Trust 2010 (1) JCC 574 and Crl. Appeal No. 488 of 2013, GHCL Employees Stock Option Trust vs. India Infoline Limited & ors. decided on 22nd March, 2013. Learned counsel for respondent has drawn the attention of this Court to the legal notice (Annexure-J) to point out that the twenty depository slips issued in respect to the shares in question were blank and Crl.M.C.2053-56/2010 Page 6 the same are on the trial court record, which means that without the permission of respondent –complainant, petitioners have dealt with the shares in question and so all the petitioners are liable to be prosecuted with the aid of Section 34 of the IPC. It is contended by learned counsel for respondent –complainant that from the pre-summoning evidence of respondent –complainant prima facie case against petitioners is made out and the decisions relied upon by petitioners' counsel have no application to facts of the instant case. Upon hearing learned counsel for the parties and on perusal of the complaint in question, summoning order, pre-summoning evidence and the decisions cited, I find that respondent –complainant has stated in no uncertain terms in pre-summoning evidence that he had opened the DMAT account in the name of accused-company through petitioner – Sanjay Sharma, who is the Chief Manager of the accused-company. Similarly, qua misappropriation of shares in question, it cannot be prima facie said that the ingredients of the offence alleged are lacing, as respondent –complainant in the pre-summoning evidence as clearly stated as under:- “I several times telephonically and with personal visit requested to Sh. Sanjay Sharma and R. Venkatraman and Sh. Nirmal Jain for transferring the said shares but they did not transfer.” In the light of the afore-noted factual position, as emerges from the pre-summoning evidence of respondent-complainant, I find that decisions relied upon are of no avail to the case of petitioners. I find no good ground to quash the proceedings in question as it cannot be prima facie Crl.M.C.2053-56/2010 Page 7 said that ingredients of the offence alleged are lacking or that the continuance of proceedings arising out of the complaint in question are abuse of the process of the Court. The above captioned four petitions and the applications are accordingly dismissed without commenting upon the merits of this case, lest it may prejudice petitioners at trial.
JUDGE SEPTEMBER 26, 2013 r