Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 1031 (GAU)

Sujoy Ghosh v. State of Assam and Ors.

2014-12-01

INDIRA SHAH

body2014
1. Heard Mr. R.C. Das, learned counsel appearing for the petitioner. Also heard Mr.K.Munir, learned Addl. P.P., Assam, appearing for the State respondent. 2. Respondent No.7 Smti. Mamta Kalita lodged an FIR before the Officer-in-Charge, Bhangagarh Police Station stating interalia that about 3 years ago she and he sister Rimi Barman opened demot account at IDBI, Capital, Bhangagarh Branch through its Branch Manager Sujoy Ghosh i.e. petitioner. They deposited 650 shares totalling to 1300 shares in Nestle India Ltd. in their account and at the relevant time the price of shares were Rs.63 laces approximately but since last one year they were not getting due dividend . They enquired through the Branch Manager of the aforesaid Bank but the Branch Manager assured them that the payment will be made today or tomorrow. Lastly when they went to the said bank i.e. on 22.1.14, they came to know that Sujoy Ghosh has already left the service since August 2013 and in his place Sri BN Gupta has joined as new Manager. They came to know that instead of 650 shares only 75 shares of Rimi Barman has been left. The allegation of the informant was that neither she nor her sister had sold in single shares as the present Manager told that the entire matter is in knowledge of Sujoy Ghosh. The informant contacted with Sujoy Ghosh who confessed before her that he had sold the shares and therefore he was brought to Bhangagarh P.S. and handed over to the police. 3. It is submitted by he learned counsel for the petitione that in respect of trading of security market shares , Stock Exchange ,sub worker, share transfer agents etc any kind of offence or complaint can be lodged before the Security and Exchange Board of India (SEBI herein after). The SEBI has been empowered to investigate the whole matter in respect of shares, trading as the stock market matter. 4. It is submitted that the SEBI by virtue of Section 11 C of SEBI Act has been empowered to investigate in respect of any transaction in the securities detrimental to the investors or the securities market or any intermediary or any person associated with the security market has violated any of the provision of the said Rules or regulation etc. It is submitted that the SEBI by virtue of Section 11 C of SEBI Act has been empowered to investigate in respect of any transaction in the securities detrimental to the investors or the securities market or any intermediary or any person associated with the security market has violated any of the provision of the said Rules or regulation etc. Elaborate provisions has been given in SEBI regarding investigation, adjudication and the penalty for any violation of the provisions of the Act. 5. It is submitted that the police in this case without having jurisdiction to investigate into the matter arrested the petitioner and he was put behind the bar for a considerable period till he was released on bail. 6. Referring to Section 20 A, it has been submitted that no civil court has jurisdiction in respect of any matter which the Board or the executing officer is empowered by or under this Act to pass any order. Section 24 prescribes penalty for contravention of any Rules or Regulation made under SEBI Act. Section 26 prohibits court from taking cognizance of any offence punishable under this Act or any Rules or regulation made there under save on a complaint made by the Board and Court cannot take cognizance of the complaint lodged by any individual . 7. It is submitted by the learned counsel for the respondent that it is not a case where the SEBI can properly investigate the matter under the SEBI Act. It is a case of misappropriation of demote account of respondent No.7 and her sister by the petitioner Sujay Ghosh. It was a simple case of cheating and misappropriation where the petitioner opened a fake E-Mail address in the name of respondent No.7 mentioning false address of the respondent creating false permanent account number of the respondent and submitting false electricity bills in respect of the house of the respondent. 8. In the case of Minoo Mehta Vs Shavak D. Mehta reported in (1998) 2 SCC 418 the Apex Court while dealing with the matter whether the special court under the provision of transaction and securities Act has the jurisdiction to entertain or tried of criminal case filed by the respondent/complainant against the accused . 8. In the case of Minoo Mehta Vs Shavak D. Mehta reported in (1998) 2 SCC 418 the Apex Court while dealing with the matter whether the special court under the provision of transaction and securities Act has the jurisdiction to entertain or tried of criminal case filed by the respondent/complainant against the accused . In that context it was held that so far the criminal proceeding is concerned even if the accused is not notified still the special court will have jurisdiction u/s 7 to deal with the offences alleged to have been committed by such accused if the two basic requirements of Section 3 Sub Section 2 are satisfied. It will be appropriate to quote para 15 of the said judgment : “15.Before parting with this case we may state that the learned Senior Counsel for the appellant also submitted that the offence alleged against the appellant was not relating to any transaction in securities during the relevant time but qua the sale consideration alleged to have been received by the appellant out of the said transaction and for which alleged offence under Section 409 prosecution is sought to be launched against the appellant. It is difficult to agree with this contention. A conjoint reading of the recitals in the complaint which obviously must be assumed to be true at this stage would show that the accused is alleged to have entered into transaction in securities, namely, the shares during the relevant period and out of the said transaction is alleged to have received sale proceeds which he has not handed over or transmitted to the complainant who claims to be entitled to the said amount. Thus the offence alleged is certainly relating to the transaction in securities as said to have been entered into by the accused during the relevant period. “ 9. In the case of Canara Bank Vs Nuclear Power Corpn. Of India Ltd. Reported in 1995 Supp.(3) SCC 81 in para 28 it has been observed as follows: “Having regard to the enormity of the 'scam' and its vast ramifications, Parliament thought it was necessary that all the matters or claims arising out of transactions in securities entered into between the sated dates in which a person notified was involved should be brought before and tried by the same forum. That forum had been invested with the jurisdiction to try persons accused of offences relating to transactions in securities entered into between the stated dates. It was also required to give directions to the custodian in regard to property belonging to persons notified which stood attached under the provisions of the Special Court Act. The object of amending the Special Court Act to invest the Special Court with the power and authority to decide civil claims arising out of transactions in securities entered into between the stated dates in which a person notified was involved has already been stated . In these circumstances, it is proper to attribute to the word 'court' in Section 9-A(1) of the Special Court Act, not the narrower meaning of a Court of civil judicature which is part of the ordinary hierarchy of courts, but the broader meaning of a curial body , a body acting judicially to deal with mattes and claims arising out of transactions in securities entered into between the stated dates in which a person notified is involved. An interpretation that suppresses the mischief and advances the remedy must, plainly, be given.” 10. Section 32 of Securities and Exchange Boad of india Act 1992 speaks that the provisions of this Act shall be in addition to , and not in derogatory of the provisions of any other law for the time being , in force. 11. Section 21 of the Act says that nothing in this act shall exempt any person from any suit or other proceeding which might apart from this Act, be brought against him. No where the Act has debarred the State police to register a case under Indian Penal Code and to investigate into the matter. 12. From the conjoint reading of Section 21 and 32 of the Act it transpires that although the Board under SEBI can investigate all the cases relating to transaction in securities can impose penalty for contravention of any rules or Regulations under SEBI Act, no bar has been created for any person to file any suit, proceeding or FIR for any offence committed under any other law. Section 32 specifically mentions that this Act is addition to and not in derogatory to provisions of any other law. Therefore, this petition is liable to be dismissed and accordingly it is dismissed.