MOTOROLA INCORPORATED Vs. UNION OF INDIA

JUDGEMENT

(1.) RULE, returnable forthwith. By consent heard finally.

(2.) BY this petition under Art. 227 of the constitution of India and under Section 482 of the Code of Criminal Procedure, the petitioner has challenged the order dated 6-11-2001 regarding issuance of process passed against it in Cri. Case No. 181/2001 by the learned Judicial Magistrate, F. C. , Khadki, pune. The said case is a private complaint filed by respondent No. 3 against the petitioner and six others on the charge of having committed an offence punishable under section 420, r. w. S. 120b of the Indian Penal Code.

(3.) THE petitioner is a company incorporated under the laws of the State of Delaware (U. S. A. ). Respondent No. 3 (Original complainant) is also a company incorporated under the Companies Act, 1956 on 24-10-1994. The said complaint relates to equity investments made by respondent No. 3 in Iridium Inc. a company incorporated under the law of the State of delaware (U. S. A.)which later on became Iridium LLC. The allegations made in the complaint are that Iridium (Inc/llc) was a mere instrumentality of the petitioner which conceived, directed and controlled Iridium at all material times. Initially the entire equity in Iridium was held by the petitioner but subsequently it was diluted on account of sale to various investors and shareholders. In 1992 Iridium floated a Private Placement Memorandum (PPM) with the intention of attracting investments from large companies in the world for the purpose of financing the Iridium System/project which is a commercial wireless communication system designed to provide global digitial hand held telephone, data, facsmile, paging and geolocation services similar to cellular phones. The said PPM set out in details the salient features of the Iridium System, its technical Suitability and commercial feasibility. The said P. P. M. also set out the strengths and weaknesses of the iridium System, in particular, the risk factors which the Iridium System would involve. The PPM was in the nature of prospectus containing an invitation to invest. The representations made in the PPM were supplemented or reiterated by personal representations made by the senior functionaries of the petitioner, who have been arrayed as accused Nos. 2 to 7 in the said complaint. The personal representations were made with the intention of inducing the persons to invest in Iridium System;. The representations made on behalf of the petitioner were that the Iridium System was a tested and proven to be successful technology and it was eminently viable, that it was designed to provide a subscriber linlcon a global basis which would be accessible virtually anywhere on the earth surface except where unusual conditions prevented the reception; that the Iridium phones would be compact in size and that they would be pocketable and palm sized; that the system was de-signed to offer a very high quality of voice, data or fax reception, that the system would afford the investors to participate in allied ancillary business including a preferential right to engage in both the gateway and service provider business ; (A gateway is a ground station which acts as an inter-connection point linking satellites to terrestrial communications) and that the system would be extremely financially rewarding, etc. , etc.