LARSEN AND TOUBRO LTD Vs. NAND BANGAD

JUDGEMENT

(1.) This is a petition filed under Section 482 of Cr.P.C, invoking extraordinary inherent jurisdiction of this High Court for quashment of the order of Judicial Magistrate, First Class, Ujjain dated 21.4.2001 and subsequent proceedings in Criminal Case No. 327/01, by which cognizance of the offence punishable under Section 420 of IPC was taken by that Court against the petitioners.

(2.) The undisputed facts are, that the Petitioner No. 1, Larsen & Toubro Company Ltd., is a company registered under the provisions of the Indian Companies Act, 1956 and other petitioners are its Directors. A private complain was filed by the respondents in the Court of Judicial Magistrate, First Class with the allegations that the complainants have purchased 450 shares of L & T Company through Swati Commercial Pvt. Ltd., Ujjain on 11.12.1997 and the same were sent to Mumbai office of the company for transfer on 19.2.1998. Out of these shares certificates 200 shares were returned after transfer in the name of the complainant, while remaining 250 shares were not sent back by the company. When complainant did not receive 250 shares certificates after the transfer, then notices were sent to the petitioners including notice sent by the registered post through his Advocate. It is alleged that no reply of those notices was sent by the company, then on 12.10.1999 complainant wrote a letter to the Stock Exchange, Mumbai and then Stock Exchange, Mumbai also wrote a letter to the Company Secretary of the L & T Company, Mumbai, but even then shares were not transferred in the name of the complainants. It is alleged in the complaint that the petitioners in conspiracy with Accused No. 21 (now deleted), by cheating, have transferred the shares in favour of Accused No. 21. With this allegation private complaint was filed by the complainants. Cognizance was taken by the Court of Judicial Magistrate, First Class on 24.11.2001 under Section 420 of IPC against petitioners and Accused No. 21 and also against Accused No. 2 H. Hollock Larsen (died in 2003) and summons were issued to them. Petitioners appeared through their lawyer, whereas Accused No. 21 remained unserved. Later on, on the application of the complainants, his name was deleted, as he could not be served. After appearing through their Advocate, petitioner filed an application under Section 202 and 204 of Cr.P.C. for recalling the order of taking cognizance of learned Magistrate dated 21.4.2001 ,that application is pending, but in the meantime Supreme Court in the case of Adalat Prasad Vs. Rooplal Jindal - (2004) 7 SCC 338, overruled earlier decision in the case of K. M. Methew Vs. State of Kerala - 1992 (1) SCC 217, and held that in absence of any review power or inherent power with the subordinate criminal Courts, the remedy lies in invoking extraordinary inherent powers under Section 482 of Cr.P.C. That is how this petition has been filed before this Court.

(3.) Shri A. M. Mathur, Sr. Advocate assisted by Shri Brijesh Pandya, Advocate, for the petitioners contended that the ingredients of the offence punishable under Section 420 of IPC are totally absent in the facts of the case, as stated in the complaint filed by the complainants and also in the statement given by the complainant and witnesses under Section 200 and 202 of Cr. P.C. It has also been submitted that all the petitioners are Directors of the company and there is no averment in the complaint showing any specific role played by any of them in commission of the alleged offence. Nothing specific has been alleged against any of them. He further submitted that there is no averment to show that petitioners ever visited the complainants or ever met and made any inducement to them to deliver the shares certificates to the petitioners. He also submitted that there is also no averment to the effect that the share certificates were delivered to the petitioner company on account of some false promise made by the petitioners by deceiving the complainants. Complainants were not at all induced intentionally by the present petitioners to do or omit to do anything, which they would not do or omit to do, if they were not so deceived. It has been contended that the necessary ingredients of the offence punishable under Section 420 of IPC have been described by the Supreme Court in the case of S. N. Palanitkar Vs. State of Bihar - (AIR 2001 SC 2960) in paragraph No. 10 and those ingredients are totally missing in the facts of the present case. Attention of this Court has also been drawn towards another decision of the Supreme Court reported in AIR 2003 SC 1069- (Ajay Mitra Vs. State of M.P.) and it is contended that even if the averments made in the complaint are accepted as absolutely true and correct, then also the petitioners cannot be said to have committed any offence of cheating as provided in Section 420 of IPC. Case of G. Sagar Suri Vs. State of U.P. - (2002) 1 SCC 636 has also been referred by learned counsel for the petitioners and it has been submitted that omnibus statement is not enough and criminal act of every accused must be shown and details of the role of every accused must be given.