A.K. PANDYA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These four criminal misc. petitions have been filed by the accused petitioners against the order dated 5.11.2012 passed by Additional Metropolitan Magistrate (Junior Division ) No.21 Jaipur Metropolitan, Jaipur in Criminal Case No. 113 of 2003( under sections 406 and 120 B IPC) whereby the application dated 7.7.2003 filed by the accused petitioners ( except accused No.4) seeking exemption from personal appearance under section 205 of the Criminal Procedure Code was rejected.

(2.) Since all the aforesaid criminal misc. petitions have been filed against the order dated 5.11.2012 passed by Additional Metropolitan Magistrate (Junior Division ) No.21 Jaipur Metropolitan, Jaipur rejecting the application under section 205 of the accused petitioners, they are being disposed by this common order.

(3.) Facts as alleged in Criminal Misc. Petition No. 3846 of 2012 are taken into consideration. A rights Issue was brought out in the year 1999 by the erstwhile Bank of Rajasthan comprised of 448,55,480 equity shares of Rs. 10/- each for cash at a premium of Rs. 5 per share with one detachable warrant carrying the right to be converted in one equity share within 12-18 months. In the first phase of the Issue 9248 applications were recevied from various share holders. M/s. HRB Floriculture Ltd. through its Managing Director Krishna Kumar Parwal and his family members were found eligibile for allotment of shares. In the second phase of allotment, i.e. Conversion of warrants into shares 5701 applications were received from various share holders including the complainant who sought allotment in Demat Form. The first phase of alloted shares were credited to the beneficiary account with the depository National Secutirty Depository Ltd. on 28.1.2000. The complainant filed application on 20.3.2001 for conversion of warrants into shares in D-Mat form and on grant of approval by the concerned Stock Exchanges for listing of shares the beneficiaty account of complainant was credited by the depository of his choice National Security Depository Ltd. on 8.11.2001. On 11.3.2002 the complainant sent a legal notice to the Bank and its Directors claiming compensation against losses said to have been suffered for the alleged delay in listing of shares. By the said notice, the Bank and its Directors were threatened with civil/ economic/ SEBI/ criminal cases unless a sum of Rs. 26,05,500/- were to be paid by the Bank to the complainant. The Bank politely reply to the said notice vide communication dated 14.3.2002. Eight months later, the complainant filed a complaint in the court of Additional Chief Judicial Magistrate No.8 Jaipur City Jaipur with the allegation that the shares were not issued and listed within a period of 42 days from the date of application and therefore the complainant was put to a great loss on account of fall in share price. The court below referred the said complainant to Police Station Vidyadhar Nagar, Jaipur under section 156 (3) Cr.P.C. for investigation. Consequently a criminal case No. 322/2002 came to be registered at Police Station Vidyadhar Nagar, Jaipur on 7.12.2002 for offence under sections 420, 406 and 120 B IPC. Upon completion of investigation by the investigating agency it was found that no cognizable offence was made out and the dispute between the parties was purely of civil nature and a final report was submitted to the Judicial Magistrate No.21 Jaipur City, Jaipur. Upon receipt of final report, the court below passed an order directing issuance of notice to the complainant. On 24.1.2003 the complainant filed a protest petition before the court below and on 20.3.2003 the statement of Krishna Kumar Parwal was recorded under section 200 Cr.P.C. The court below vide order dated 2.5.2003 took cognizance of offence under sections 406 and 120 B IPC against the erstwhile Bank of Rajasthan and all its Directors/ office bearers and bailable warrants of arrest were issued against the accused petitioners. Upon service of the said bailable warrants of arrest requisite bail bonds and sureties were duly executed by the accused petitioners. The accused petitioners thereafter entered appearance before the court below through their counsel and submitted an application dated 7.7.2003 for grant of exemption from personal appearance. The Bank of Rajasthan Ltd. and others filed a petition under section 482 Cr.P.C. against the criminal proceedings so initiated against them and the same was registered as S.B.Criminal Misc. Petition No. 723 of 2003. Another misc. petition was also filed by the persons who were nominated as directors of the erstwhile Bank of Rajasthan by the Reserve Bank of India and the same was registered as S.B.Criminal Misc. Petition No. 801 of 2003 H.R. Khan and others vs. State of Rajasthan. It is further alleged in the petition that vide order of this court dated 29.67.2003 the petitions were admitted and this court was pleased to stay the proceedings pending before the court below. The aforesaid criminal misc. petitions were disposed of by a common order dated 9.7.2012 stating that the grounds and contentions raised in the petitions may be urged by way of objections to be raised before the court below and the court below may conduct further proceedings only after deciding such objections. It is further alleged that the order dated 9.7.2012 was based on the premise that the same was being passed with consent of the counsel appearing for the petitioners and hence the accused petitioners filed criminal misc. application No.317/2012 for recalling the said order dated 9.7.2012. The said application was posted for hearing on 19.11.2012 and it is alleged in the petition that despite this the court below vide order dated 5.11.2012 rejected the application filed by the accused petitioners seeking exemption from personal appearance. This order dated 5.11.2012 has been challenged in all the above criminal misc. petitions. It is alleged in the petition that the court below has rejected the accused petitioners application for exemption from personal appearance on erroneous and patently contrary to law as well as material available on record. The court below has overlooked the provisions of section 317 Cr.P.C. It is also alleged that the court below has also overlooked the fact that this court having stayed that proceedings the petitioners could not accused or alleged to have evaded appearance before the court below. It is also alleged that the accused petitioners have been implicated in the criminal proceedings solely with a view to create pressure and the directions given by the court below requiring the accused petitioners to be present in person instead of serving any valid purpose would only compound the vaxatious harassment of the accused petitioners. In these circustances it was prayed that the petitions be allowed and the accused petitioners application for exemption from personal attendance may be allowed and the order of the court below in this regard be set aside.