HARINARAYAN G BAJAJ Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) These applications arise out of proceedings in Criminal Case No. 125/SW/2005 pending before the learned Metropolitan Magistrate, 40th Court, Girgaon, Mumbai, and the orders passed by the learned Additional Sessions Judge Mumbai on 16-7-2010 in Criminal Revision Application Nos. 481 of 2010 and 590 of 2010 filed by the parties. Before adverting to the challenges raised by the parties before this Court, it may be useful to briefly recount facts leading to the present proceedings. The applicant in Criminal Application No. 431 of 2011 is the original complainant and the applicants in Criminal Application No. 564 of 2011 are the original accused Nos. 1 and 2 in Criminal Case No. 125/SW/2005. For the sake of convenience, hereinafter they are referred to as the complainant and the accused. Accused No. 1 is the sole proprietor of Creative Finance Co., partner of Creative Garments Limited (accused No. 5 in the complaint) and Director of Creative Garments Limited (accused No. 4). Accused Nos. 2 and 3 are associated with the activities of the Creative Group of Companies.

(2.) According to the complainant, he and his son purchased 3,07,650 shares of a company known as Sesa Goa Limited at the Bombay Stock Exchange (for short "BSE") over a period of four Settlements bearing Nos. 23, 24, 25 and 26 of 1997/98 from 25-8-1997 to 19-9-1997 through some share brokers including the company of Shri Anil Shah by name AAFSL. The BSE prescribes a schedule of trading periods and settlement periods. The payment for shares which are purchased during a settlement period has to be made by a pay-in-date and only thereafter the shares are delivered by the pay-out-date. Since the book closing for Sesa Goa Limited was on 17-9-1997, the BSE had declared the period from 26-8-1997 to 19-9-1997 as no delivery period and so the payment and delivery of shares purchased was postponed. Since the complainant and his son did not have the money to pay for the shares purchased, they borrowed a sum of Rs. 5,62,50,000/- from accused Nos. 4 and 5 in September 1997 and secured the loan by pledging 3,07,650 shares of Sesa Goa Limited, purchased by them. The complainant claimed to have also deposited with accused Nos. 4 and 5 certain other securities and shares worth Rs. 1,00,00,000/-. Accused Nos. 1 to 5 also obtained signatures of the complainant and his family members on documents like an Agreement to Sell a flat at a building known as Dar-ul-mulak, an Agreement of Leave & License in respect of the same flat, and an Agreement confirming that loan would be secured by a flat at Bharatiya Bhavan, as and by way of additional security. The payment for the shares and delivery was routed through AAFSL. On 6-1-1998, when the complainant met accused No. 1 and offered to repay the loan, the accused told him that he had not advanced loan of Rs. 5,62,00,000/-, but had in fact paid the price for purchasing those shares. He also refused to return the Agreements signed in respect of the two flats. Accused No. 1 eventually claimed to have purchased the flat at Dar-ul-Mulak. The complainant therefore filed a civil suit on 25-5-1998 against the accused persons and seven others concerned with the transaction. He also filed a complaint with the police on 20-2-1998. It transpired that AAFSL had issued purchase bills for those 3,07,650 shares in the name of accused Nos. 4 and 5. The complainant alleges that the accused persons in furtherance of their common intention and by hatching a criminal conspiracy misappropriated the 3,07,650 shares pledged with them, as also the Share Certificate in respect of the flat. The complainant therefore wanted that the accused persons be punished for offences punishable under Sections 120B, 406,417 r/w Section 420 r/w Sections 34, 109 and 114 of the Indian Penal Code (for short, "IPC").

(3.) After initial hassles about issue of process, filing of two rounds of revisions, the learned trial Magistrate issued process against accused Nos. 1 to 3 for the offences punishable under Sections 403 and 406 of the IPC, and dismissed the complaint against the others. Revision by accused No. 3 was allowed and he, too, was discharged. The complainant had approached this Court too which directed that the trial be conducted in a time bound manner and to complete it by June 2007, which was extended from time to time. Ultimately the recording of pre-charge evidence began and the learned Magistrate recorded evidence of the complainant and two other witnesses. Only after the parties had made a detour to the Sessions Court on the range of offences for which the accused could be considered to be charged and after hearing the parties, the learned Magistrate by his order dated 7-4-2010 directed charges to be framed against accused Nos. 1 and 2 (Vijay Agarwal and Pramod Banka) for the offences punishable under Sections 403 and 406 r/w Section 34 of the IPC. He framed charge accordingly on 3-5-2010.