Bangalore District Court
Grace Padma vs A3: Mrs. Saraswathi Jai Prakash on 22 April, 2015
IN THE COURT OF THE IV ADDL. C.M.M AT BANGALORE.
DATED THIS THE 22nd DAY OF APRIL 2015
PRESENT
Ms.S.L.Ladkhan, B.A., L.L.M.,
IV A.C.M.M. Bangalore
CC No. 23858/2007
Complainant : Grace Padma
V/s
Accused : A3: Mrs. Saraswathi Jai Prakash,
W/o K.S. Jai Prakash
A4: Mr. K.S.Jai Prakash,
Both are residing at
No.1446, 5th B Cross,
25th main, BTM Layout,
Bangalore - 560 076.
JUDGMENT
This is a private complaint filed u/s.200 of Cr.P.C. against the accused persons alleged to have committed the offences punishable u/s.406, 415, 420 of IPC.
2. The brief complaint averments reveals that, accused and the complainant are the family friends. On 2.10.1996 the accused persons approached the complainant for financial assistance and forced the complainant to purchase the shares in their company by name M/s.S.J. Max Golden Ko Limited. That complainant's sister by
-2- CC 23858/2007 name Margaret Jayasheeli and brother M.Samson Raja Prakash also purchased the shares from the said company. That the complainant purchased 500 shares of Rs.10/- each worth Rs.5000/- and her sister, and her brother purchased the shares worth Rs.10,000/-. The share certificates were delivered on 6.9.1996 and made the promise that they would give the dividends. Even after 7 years the accused persons have not paid any dividends to the complainant. Till 1999 the complainant received regular updates of the company. But for the last 4-5 years there is no news either from the accused General Body Meeting of disbursement of dividend amount or even settling the amount with the interest. The complainants approached the accused personally at their house and the accused assured that amount would be settled at the earliest. But no such commitment has been adhered to. For the past few years General Body Meeting has not taken place. The total amount invested by the complainant is Rs.20,000/- and the return as on date including the interest would be Rs.85,000/-. Complainant got issued legal notice on 13.5.2003 by RPAD that was served on all the accused but they have failed to reply the said notice. As there was no reply given to the notice, cause of action to this complaint arose within the jurisdiction of Vijayanagara police station limits. Hence, this complaint against the accused to have cheated, committed criminal breach of trust and fraud. As such this complaint to take cognizance of the offences to secure the accused, sentence them for the above said offences, to impose maximum fine i.e. twice the amount of investment and to grant the fine amount to the complainant by way of compensation u/s.357 of Cr.P.C. Complainant led in her sworn statement and led
-3- CC 23858/2007 in the sworn statement of two witnesses. Produced the documents. Cognizance was taken by my predecessor in office. Summons were issued to the accused persons.
3. Accused No.3 and 4 appeared before the court and were enlarged on bail. Complainant filed a memo stating process against accused No.1 and 2 may be dropped. As such my predecessor in office has dropped the process against accused No.1 and 2.
4. Complainant has led in her evidence before charge and led in the evidence of one witness as PW2 and produced the documents. Heard on charges. Charges for the offences punishable u/s.406, 415, 420 of IPC was recorded. It was read over and explained to the accused No.3 and 4 in the language known to them. Accused persons pleaded not guilty and claimed trial.
5. Complainant has adopted the same evidence. During the stage of evidence before charge PW1 and PW2 were cross-examined by the defence. Subsequently after framing of the charge an application came to be filed to recall PW1 and PW2 for further cross- examination. The said application came to be allowed. But PW1 and PW2 failed to tender for cross-examination. As such their evidence was discarded.
6. As the evidence of PW1 and PW2 was discarded, it is non est in the eye of law. The question of framing of the statement u/s.313 of Cr.P.C. did not arise.
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7. Heard the complainant in person and the counsel for the accused No.3 and 4. Perused the materials on record.
8. The following points arise for my consideration :
1) Whether the complainant proves beyond all reasonable doubt that, accused person on 2.10.1996 approached the complainant and insisted the complainant, her sister and her brother to invest an amount of Rs.20,000/- to purchase the shares of S.J.Max Golden Ko Limited and subsequently failed to pay the dividend amount to an extent of Rs.2 Lakhs and misappropriated the said amount and thereby committed the offence punishable u/s.406 of IPC?
2) Whether the complainant further proves beyond all reasonable doubt that, accused persons dishonestly induced the complainant to purchase the shares of the company and failed to return the said amount and thereby committed the offence punishable u/s.415 of IPC ?
3) Whether the complainant proves beyond all reasonable doubt that, on the above said time, date and place the accused persons dishonestly cheated the complainant by not returning an amount of Rs.2 Lakhs and thereby committed the offence punishable u/s.420 of IPC ?
4) What order ?
9. My findings on the above points are as follows:
Point No.1 : In the negative.
Point No.2 : In the negative.
-5- CC 23858/2007 Point No.3 : In the negative.
Point No.4 : As per the final order for the following:
REASONS
10. Point No.1 to 3 : As these points are inter-linked, in order to avoid repetition of discussion they are taken together for common consideration. It is the case of the complainant that accused and the complainant are the family friends. On 2.10.1996 the accused persons approached the complainant for financial assistance and forced the complainant to purchase the shares in their company by name M/s.S.J. Max Golden Ko Limited. That complainant's sister by name Margaret Jayasheeli and brother M.Samson Raja Prakash also purchased the shares from the said company. That the complainant purchased 500 shares of Rs.10/- each worth Rs.5000/- and her sister, and her brother purchased the shares worth Rs.10,000/-. The share certificates were delivered on 6.9.1996 and made the promise that they would give the dividends. Even after 7 years the accused persons have not paid any dividends to the complainant. Till 1999 the complainant received regular updates of the company. But for the last 4-5 years there is no news either from the accused General Body Meeting of disbursement of dividend amount or even settling the amount with the interest. The complainants approached the accused personally at their house and the accused assured that amount would be settled at the earliest. But no such commitment has been adhered to. For the past few years General Body Meeting is not taken place. The total amount invested by the complainant is
-6- CC 23858/2007 Rs.20,000/- and the return as on date including the interest would be Rs.85,000/-. Complainant got issued legal notice on 13.5.2003 by RPAD that was served on all the accused but they have failed to reply the said notice. As there was no reply given to the notice, cause of action to this complaint arose within the jurisdiction of Vijayanagara police station limits.
11. The complainant has led in her evidence before charge as PW1. PW1 was also cross-examined then by the defence. The complainant has produced the documents Ex.P.1 to Ex.P.22 and Ex.D.1 was confronted in the cross-examination. Even one witness Margaret Jayasheeli has led in her evidence as PW2 i.e. at the time of evidence before charge. Subsequently after framing of charge the complainant has adopted the same evidence. An application came to be filed by the defence to further cross-examine PW1 and PW2. PW1 and PW2 failed to tender themselves for further cross- examination. As such their evidence was discarded. Subsequently on the next date of hearing the complainant was present and advanced the arguments. No efforts were made by the complainant to tender PW1 and PW2 for further cross-examination. Therefore the order of discarding the evidence of PW1 and PW2 has remained unchallenged.
12. The complainant has to prove that, the accused persons had induced her to purchase the share certificates and subsequently they have failed to pay the dividends. The complainant has got marked the documents Ex.P.1 to Ex.P.22. Ex.P.1 to Ex.P.3 are the share
-7- CC 23858/2007 allotment letters. Ex.P.4 is the annual report. Ex.P.5 is the copy of the complaint given to the police. Ex.P.6 is the acknowledgement. Ex.P.7 and Ex.P.8 are the postal covers. Ex.P.9 and Ex.P.10 are the legal notice copies. Ex.P.11 is the postal receipt. Ex.P.12 is the statement of Jayaprakash. Ex.P.1 is the letter issued by the complainant to PW3 (i.e. got marked in the sworn statement of PW3). Ex.P.2 to Ex.P.21 are the share certificates, Ex.P.22 is the allotment money notice and Ex.D.1 is the share certificate application form.
13. The complainant has to prove that, the accused persons had induced her to purchase the said shares and subsequently failed to pay the dividends. That the evidence of the complainant and the other witnesses is discarded. As such their evidence is non est in the eye of law. The counsel for the accused has relied on Sec.100 of Corporate Laws i.e. the Companies Act 2000 which says that, subject to confirmation by the court a company may as far as is necessary alter its memorandum by reducing the amount of its share capital and of its shares accordingly. In the absence of the oral evidence of PW1 and PW2, the complainant has failed to prove that the accused persons had induced the complainant to purchase the shares worth Rs.5000/- and induced her sister to purchase shares of Rs.5000/- and her brother to purchase the shares of Rs.10,000/-. Therefore, under these circumstances, there is no substantial evidence against the accused persons. Hence, the complainant has failed to prove the guilt of the accused persons beyond all reasonable doubt. Hence, my finding on the above points are in the negative.
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14. Point No.4 : For having answered the above points as per the above discussion, I proceed to pass this following :
ORDER Acting U/s. 248 (1) of Cr.P.C. accused No.3 & 4 are acquitted of the offences punishable U/s.406, 415, 420 of IPC.
As per the provisions of Sec.436A of Cr.P.C. bail bonds of the accused and surety stands cancelled after the expiry of 6 months. (Dictated to the stenographer, transcribed and computerised by her, corrected by me and then pronounced in open court on this the 22nd day of April 2015) (Ms. S.L.Ladkhan) IV Addl.Chief Metropolitan Magistrate, Bangalore.
ANNEXURE List of witnesses examined for prosecution :
PW.1 : Grace Padma PW.2 : Margaret Jayasheeli
List of exhibits marked for prosecution :
Ex.P.1 to Ex.P.3 : Share allotment letters.
Ex.P.4 : Annual report.
Ex.P.5 : Copy of the complaint given to the police.
Ex.P.6 : Acknowledgement.
Ex.P.7 & 8: Postal covers.
Ex.P.9 & 10 : Legal notice copies.
Ex.P.11 : Postal receipt.
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Ex.P.12 : Statement of Jayaprakash.
(Documents marked in the sworn statement of PW3) Ex.P.1 : Letter issued by the complainant to PW3 Ex.P.2 to Ex.P.21 : Share certificates Ex.P.22 : Allotment money notice List of M.O.s marked for prosecution : NIL List of witnesses examined on behalf of accused : NIL List of exhibits marked on behalf of accused :
Ex.D.1 : Share certificate application form.
(Ms. S.L.Ladkhan) IV Addl.Chief Metropolitan Magistrate, Bangalore.
- 10 - CC 23858/2007
22.04.2015
State by Sr.APP
Accused
For judgment
ORDER
(pronounced in open court vide separate order) Acting U/s. 248 (1) of Cr.P.C. accused No.3 & 4 are acquitted of the offences punishable U/s.406, 415, 420 of IPC.
As per the provisions of Sec.436A of Cr.P.C. bail bonds of the accused and surety stands cancelled after the expiry of 6 months. (Dictated to the stenographer, transcribed and computerised by her, corrected by me and then pronounced in open court on this the 22nd day of April 2015) (Ms. S.L.Ladkhan) IV Addl.Chief Metropolitan Magistrate, Bangalore.