TATA ELXSI INDIA LTD Vs. VISWANATH GOENKA

JUDGEMENT

(1.) By making this application under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India, the petitioners, who are accused Nos. 1, 2, 3 and 4 in the Complaint Case No. 354 of 1995, have sought for, inter alia, setting aside and quashing the order, dated 21-2-1995, passed, in the Complaint Case aforementioned, whereby direction was given to issue summons to the accused named in the complaint, which include the present petitioners and two more persons (who have not challenged the order dated 21-2-1995, aforementioned).

(2.) In a nutshell, the complainant's case is thus Pursuant to the publication of an advertisement, by the accused No. 1, inviting people to purchase equity shares and/ or partly convertible debentures, the complainant and four members of his family paid, by way of cheques, on 21-11-1991, a sum of Rs. 7,500/- each, subscribing to the public issue of the equity shares of the accused No.1. Though the accused No. 4 received the applications for shares and also the amounts, paid by way of the cheques aforementioned, no acknowledgment was made, in this regard, by the accused No. 1 and/or 4 nor did they intimate to the complainant and/or his four other members of the family the decision taken by them (i.e. accused No. 1 to 4) on the said applications. By various letters, sent by the complainant and his said four other family members, they made enquiries about the fate of their applications, from the accused No. 1 and 4, but none of the accused bothered to respond thereto. This was followed by legal notices issued on behalf of the complainant and his family members aforementioned demanding refund of their money from the accused aforementioned. On receipt of the advocate's notices, the accused No. 4 sent photocopies of five refund orders, dated 30-1-92, of Rs. 7,500/- each with further intimation to the complainant and has family members that all the said refund orders had been cleared on 24-4-92/27-4-92 and encashed through the bankers namely, accused Nos. 5 and 6. The accused No. 4 also advised the complainant and his family members to take up the matter with their bankers, namely, accused No. 5 and 6. As the complainant and his four family members had never opined their accounts with accused Nos. 5 and 6, they intimated this fact to accused No. 4; but the accused aforementioned maintained silence. Subsequent enquiries made by the complainant, however, revealed that the refund orders, issued in their favour, were encashed by opening fictitious accounts, in their names, with the accused Nos. 5 and 6. In these premises, the complainant alleges that the accused No. 1 to 4 have either acted negligently or they have, colluded with those, who had opened, as indicated hereinbefore, the said fictitious accounts and encashed the cheques.

(3.) Having recorded the statement of the complainant and having found a prima facie case made out against all the accused aforementioned under Section 409/418/ 509/34, IPC, learned Judicial Magistrate, 1st Class, Guwahati, passed the order, dated 24-1-1995, aforementioned directing issuance of summons to all the accused and it is this order, which stands impugned in the present revision.