Allowed

Maxy Francis D'Costa @ F.D'Costa v. State of Bihar and Anr.

Patna HC1 Jul 2013CR. MISC./26385/2008

Case brief

AI extract

What is this about?

The Patna High Court allowed the petitioner's application and quashed the order by the Sub Divisional Judicial Magistrate taking cognizance. The court found the matter pertained to a civil dispute over investment recovery rather than a criminal offence.

What did the court decide?

Quashed order dated 12.8.2005 passed by SDM Patna taking cognizance in Complaint Case No. 1308(c) of 2005 regarding the petitioner.

Maxy Francis D'Costa @ F.D'Costa Vs State of… — Contract and Commercial Disputes | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.26385 of 2008

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====================================================== Maxy Francis D'Costa @ F. D'Costa, son of Shri Domnic D’Cousta, presently posted as General Manager at I.D.B.I. Limited, I.D.B.I. Tower, WTC Complex, Cuffee Parade, Mumbai – 400 005. .... .... Petitioner/s Versus 1. The State Of Bihar 2. Jitendra Narayan Agrawal, son of late Amar Chand Agrawal, Sindhu Bhawan, Behind Dr. Gopal Prasad Sinha, North Shree Krishna Puri, Town & Distt. Patna. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. S.D. Sanjay, Adv. Mr. Gautam Kejriwal, Adv. For the State : Mr. G.C. Sharma, A.P.P. ====================================================== CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL ORDER

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7 01-07-2013 The order sheet reveals that repeated steps had been taken for serving notices on the Opposite Party No. 2 but to no avail since it appears from the Process Server’s report that the Opposite Party does not reside at the said address any more. It is under such circumstances, this Court is of the view that keeping the matter pending any longer for appearance of the Opposite Party No. 2 would be unfair to the Petitioner and hence it proceeds to hear the matter.

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Heard learned counsel for the Petitioner and the State.

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The Petitioner seeks quashing of the order dated 12.8.2005 passed by the Sub Divisional Judicial Magistrate, Patna,

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Patna High Court Cr.Misc. No.26385 of 2008 (7) dt.01-07-2013 2/3

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in Complaint Case No. 1308(c) of 2005 so far as it relates to the Petitioner by which he has taken cognizance in the matter.

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The case of the Complainant is that the accused Company had published a proposal inviting investment from Public towards fully secured redeemable non convertible debentures at a certain interest.

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On 9.5.2007, the Officials of the accused Company allegedly approached the Complainant for investment towards the said debentures. On the assurance of the accused persons, he invested a certain amount of money. However, upon maturity of such debentures, when he sent the fully discharged receipt to the accused Company for repayment, it did not do so. It was under such circumstances, he was of the view that the accused persons had dishonest intention right from the start and had misappropriated his money.

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The Petitioner submits that he is an employee of the IDBI and to safeguard their interest in the Company, he had been nominated on the Board of Directors. Hence, he was a Nominee Director as is evident from the documents filed herein. At no point in time the IDBI has not been the trustee of the investments, and, therefore, to proceed against the Petitioner even conceding his nomination on the Board of Directors, no offence would be made

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Patna High Court Cr.Misc. No.26385 of 2008 (7) dt.01-07-2013 3/3

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out against them. Moreover, it appears that by letter No. 53/407/Nom.8 dated 9.7.1999, he had withdrawn the nomination and the same was communicated with effect from 19.7.1999. The further submission is that even accepting the entire allegation in the Complaint petition, at best, it appears to be a case of bad investment and, hence, recovery through a money suit would be the proper procedure,

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I am inclined to agree with the submission advanced on behalf of the Petitioner.

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Hence, the application is allowed and the entire proceeding including the order dated 12.8.2005 passed by the Sub Divisional Judicial Magistrate, Patna, in connection with Complaint Case No. 1308(c) of 2005, is hereby quashed.

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However, the quashment of the present proceeding shall have no bearing on any civil proceeding filed/proposed to be filed by the Complainant.

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(Anjana Prakash, J)

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S.Ali

Maxy Francis D'Costa @ F.D'Costa v. State of Bihar and Anr.

Case brief

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Maxy Francis D'Costa @ F.D'Costa v. State of Bihar and Anr.

Case brief

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