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1997 DIGILAW 1217 (RAJ)

Hindustan Development Corporation Ltd. v. Kushan Chand Bader

1997-10-13

M.A.A.KHAN

body1997
Judgment M.A.A. Khan, J.-This is a petition under Section 482 of the Criminal Procedure Code, 1973, challenging the order dated July 29, 1995, whereby the learned Magistrate refused to cancel his earlier order dated September 16, 1994, taking cognizance of the offence under Section 113(2) of the Companies Act, 1956 (“the Act”), against the petitioners on the complaint of Kushal Chand Bader, respondent No. 1. 2. Petitioner No. 1, Hindustan Development Corporation Ltd., is a company incorporated under the Act with its registered office at Modi Building, 27, Sir. R.N. Mukherjee Road, Calcutta. Petitioner Nos. 2 to 6 are its chairman, managing director, directors and secretary, etc. Petitioner No. 7, A, B, C. Consultants Pvt. Ltd., N.C.E. Buildings, Jadav Pur, Calcutta, is petitioner No. l’s registrar and share transfer agent rendering services to the shareholders of the company on behalf of petitioner No. 1. 3. Respondent No. 1, Kushal Chand Bader, is a member of Pink City Investors Forum, M.I. Road, Jaipur (Raj.), and is, allegedly, a registered shareholder of petitioner No. 1 under Folio Nos. K-123135, K-123677, K-123097, and K-123118. 4. Around December, 1991, to January, 1992, the petitioner company offered for subscription 61,25,174--14 per cent, secured redeemable partly convertible debentures (series IX) of Rs. 150 each for cash at par on a rights basis to its equity shareholders and employees. 1,38,86,500 similar debentures aggregating to Rs. 208.30 crores for cash at par were also offered for purchase to resident Indian public and employees of the company through a public issue. The issue price of Rs. 150 of these debentures was payable in the following manner: Part A= (convertible) Rs. 10 on application and Rs. 40 on allotment. Part B= (convertible) Rs. 2.50 on application Rs. 10 on allotment, and Rs. 37.50 at the time of first and final call. Part C= (non-convertible) Rs. 25 on application and Rs. 25 on allotment. 5. This issue appears to have been over-subscribed. The petitioner-company, however, appears to have issued the allotment letters to the allottees of the public issue as per the relevant provisions of the Act. Respondent No. 1 purchased, inter-alia, 2,300 debentures from the open market and forwarded the same along with a bank draft for Rs. 2,67,7 11 to the petitioner company on October 13, 1992, for being transferred in his other purchasers’ names. Respondent No. 1 purchased, inter-alia, 2,300 debentures from the open market and forwarded the same along with a bank draft for Rs. 2,67,7 11 to the petitioner company on October 13, 1992, for being transferred in his other purchasers’ names. The petitioner company registered the transfers in respect of 2,250 debentures but returned the remaining 50 debentures with the remark that collection of call money on those debentures had not yet been verified. Respondent No. 1 again sent those debentures on June 7, 1993, to the petitioner-company and claimed payment of interest due thereupon besides registration of transfer in his favour. The petitioner company neither, as alleged by respondent No. 1, returned the debentures after registration of the transfer in his name nor paid the interest amount of Rs, 40,930.86 to him despite repeated demands and reminders. 6. Based on the above facts respondent No. 1 filed a complaint against the petitioners in the Court of the Special Magistrate (Economic Offences) Jaipur who took cognizance of the offence under Section 113(2) of the Act, on September 16, 1994, and summoned the petitioners as accused thereunder. After putting in appearance before him the petitioners challenged the Magistrate’s order dated September 16, 1994, but the learned Magistrate, vide his impugned order dated July 29, 1995, rejected their application under Section 204 of the Criminal Procedure Code, 1973. Hence, this petition under Section 482 of the Criminal Procedure Code, 1973. .7. Mr. Alok Sharma, learned Counsel for the petitioner, has, mainly, raised the following points, namely:- .(1) TheCourt of the Magistrate at Jaipur has no territorial jurisdiction to receive and entertain the complaint. .(2) Respondent No. 1, being not yet a shareholder in respect of the debentures in question, has no locus standi to maintain this cause. .(3) Averments made in the complaint do not prima facie disclose the commission of offence under Section 113(2) by the petitioners inasmuch as they all could not be considered “officers in default” in terms of Section 5 of the Companies Act, 1956. 8. Mr. Sharma further submitted that after verification of the receipt of the call money in respect of 50 debentures also, registration of transfer thereof in favour of the respondent was duly made and the debentures returned to him on October 9, 1993, and November 7, 1993. 9. Mr. 8. Mr. Sharma further submitted that after verification of the receipt of the call money in respect of 50 debentures also, registration of transfer thereof in favour of the respondent was duly made and the debentures returned to him on October 9, 1993, and November 7, 1993. 9. Mr. P.K. Khaitan, learned Counsel for respondent No. 1, however submitted that withholding of registration of transfer of the debentures and not paying interest due thereupon for no valid reasons not only makes the impugned order as not fit for revision but also all the points canvassed by Mr. Sharma stand decided against the petitioner by various decisions of this Court and the apex Court. 10. The impugned order since held as an order revisable under Section 397 of the Criminal Procedure Code, 1973, the present petition is considered and treated as a revision application under Sections 397 and Section 401 of the Criminal Procedure Code, 1973. .11. The points as raised by Mr. Sharma and as mentioned above stand covered against the petitioners by the following decisions, namely: .(1) Ranbaxy Laboratories Ltd. vs. Smt. Indra Kala [1997] 88 Comp Cas 348 (Raj). .(2) Federal Bank Ltd. vs. Smt. Sarla Devi Rathi [1997] 88 Comp Cas 323 (Raj). .(3) Herdilia Unimers Ltd. vs. Smt Renu Jain [1998] 92 Comp Cas 841 (Raj). .(4) Ghanshyam Chaturbhuj vs. Industrial Ceramic (P.) Ltd. [1990] 68 Comp Cas 36(Mad) [1995] 4 Comp, U 51 (Mad). .(5) Wadhwa (P. C.) vs. S. C. Bhatia [1995] 4 Supp. SCC 244 (SC). 12. In view of the above decisions it is held that the learned Magistrate at Jaipur had the territorial jurisdiction to entertain the present petition, that respondent No. 1 being an aggrieved person has locus standi to maintain the present cause, that the averments made in the complaint, as referred to above, did disclose the commission of an offence under Section 113(2) of the Act and that prima facie the petitioner fell within the purview of “officers in default” as defined in Section 5 read with Section 2 of the Act. The impugned order is, therefore, neither invalid in law nor required to be set aside in revisory powers of this Court. 13. The impugned order is, therefore, neither invalid in law nor required to be set aside in revisory powers of this Court. 13. However, taking note of the nature of dispute I am of the opinion that the grievance of respondent No. 1 seems to be relating to the payment of the amount of interest due to him in respect to the debentures sought to be registered by transfer in his name. Such a petty dispute should not, normally, keep either the parties or the criminal Court busy in litigation for litigants’ sake. 14. Therefore, this petition is dismissed with a direction to the learned Magistrate that, if the petitioners make payment of the interest due on the debentures, transferred in his name, within a period of three months, he may pass orders under Section 258 of the Criminal Procedure Code bringing the litigation to a halt.