This court disposed of a criminal application questioning the issue of process in a cheating case. The applicant alleged misappropriation of funds via dummy accounts. The court held the trial judge applied mind independently to facts and the application lacked merit.
Rule is discharged. Application is dismissed.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.160 OF 2012
Mayur Batra and others ...Applicants v/s
The State of Maharashtra and anr. ...Respondents
Mr Ashok Mundergi, Sr. Counsel with Mr Hiren Mehta, Mr Ashwin Hawelikar i/b M/s S.N. Gupta and Co. for Applicants.
Mr D.P. Adsule, APP for State.
Mr A.H.H. Ponda for Respondent No.2.
CORAM : K.U. CHANDIWAL J.
DATED : 6TH NOVEMBER 2012.
P.C. :-
Rule made returnable forthwith. Heard finally.
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theme and text of the said agreement, it was
imperative and lawful for the applicants to appropriate receivable funds from the complainant / respondent No.1 it is not misappropriation or
cheating on their part as share brokers.
authority extended to them, the business
transactions in sale or purchase of the shares has taken place. The agreement to which reference is
given, is not declined by the respondent / original complainant. The grievance of the respondent No.1 was, during the period from 10th April 2007 to 5th
May 2007 she had gone to Hong Kong and even if she had given instructions on mobile to Amit Singh, it
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was expected from the applicants to inform the
respondent within 24 hours about sale or purchase in share transactions. The grievance of the respondent is, by creating dummy accounts, the profits are diverted by the applicants and she is put to losses.
and sale of various shares through applicant Company – M/s MSB Securities from November 2006 pursuant to the assurance extended by the applicants, the respondent had deposited her shares with the applicant Company in a DP account of the applicant Company. The shares were entrusted to the original accused Nos.2 and 3 (applicants) who were Managers
of the Company. The respondent has revealed, the transactions carried by the applicants in her account was without her consent, the profit derived
from buying or selling was credited to the dummy accounts which were controlled by accused Nos.2 and 3 under the instructions of accused applicant No.1.
The losses were debited to her account. The
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complainant has quoted instances of such losses suffered by her.
the police report, in pursuance to earlier directions under section 156(3) of Cr.P.C. to
impress that the detailed enquiry called by police in MECR No.6 of 2007 does not inform of any offence committed by the applicants and they are falsely implicated. It is a case of mistake of fact and hence it was urged to make it summary.
not expected to dwell upon the observations of the Police as it was not expected to record evidence and to adjudicate the same to record findings in the manner it has been done. The inferences drawn by the Police are hypothetical and divorced from the record.
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conclusions arrived at by the Investigating Officer and applying mind independently to the facts emerged
from the complaint and annexures. Primary
involvement of applicants in contravening the trust
deposed in them is reflected. It was malfeasance of applicants associated with fraudulent acts. The cognizance taken of the case by the learned Judge therefore does not call for interference. The role played by each of the applicant is succinctly demonstrated in the complaint and the verification. Criminal application lacks merits, disposed off. Rule is discharged.
3 issues framed by the court
Whether the criminal application questioning the issue of process requires interference given the primary involvement of applicants in fraudulent acts contravening trust.
Whether the independent application of mind by the learned Judge in issuing process calls for judicial intervention despite police inferences.
Whether the criminal application maintains merit where the process was issued upon discretionary grounds ignoring the cumulative evidence.
Mayur Batra and others
The State of Maharashtra
K.U. Chandiwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
