Delhi High Court
Vls Finance Ltd. vs State (Govt. Of Nct Of Delhi) And Ors. on 10 January, 2008
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
JUDGMENT Shiv Narayan Dhingra, J.
1. This criminal writ petition has been filed by the petitioner making following prayers:
a. Declaration that respondent No. 1 is failing to discharge its statutory responsibility and defaulting in ensuring the due compliance with law by permitting respondent No. 2 to defy the legal consequences of illegality arising from the continued use by the latter of shares even after the said shares admittedly becoming case property in FIR No. 90/2000 and charge sheet having been filed in the said FIR and pending before the court of Metropolitan Magistrate rendering, thereby, immune from illegality the use of shares affected by the illegality;
b. Mandamus directing respondent No. 1 to discharge its statutory responsibilities and to ensure due compliance with law by restraining respondent No. 2 from dealing with case property in FIR No. 90/2000 the said property being tainted by links with commission of offence and in permitting the respondent to deal and continuing to deal with the same would enable the said respondent accused of wrong doing with regard to the said property to yet derive benefit and advantage there from.
c. Direct that the physical custody of the shares made case property be taken from TFCI into Police Custody.
d. Direct the respondent No. 1 to seize the Register of Member and all other related records of the Respondent NO. 6 company pertaining to the issue of equity shares of respondent No. 6 company.
2. The relevant facts are that petitioner lodged a complaint against the respondents and an FIR No. 90 of 2000 was registered against the respondents No. 2 to 4 under Sections 420/406/409/468/471/477/120B IPC. The petitioner's complaint was that the petitioner was induced to invest Rs. 7 crore by respondents S.P. Gupta, Kaveen Gupta and Vipul Gupta, directors of M/s Sunair Hotels Ltd. on a representation that the respondents would invest Rs. 21 crore towards equity share capital in the company and the petitioner should invest Rs. 7 crore to book 25 % of equity. The petitioner purchased 70 lac equity shares and paid Rs. 7 crore. The respondents who were to invest Rs. 21 crore in fact invested only Rs. 1 crore and rotated that Rs. 1 crore 21 times between M/s Sunair Hotels Ltd., M/s Sunaero Ltd. and M/s HJ Consultant Pvt. Ltd., all having their accounts in Syndicate Bank K.G. Marg, New Delhi in order to show infusion of Rs. 21 crore of equity capital. Mr. S.P. Gupta was the person who was authorized to operate the account of all three companies and he rotated the amount of Rs. 1 crore 21 times between 16th March, 1995 to 20th March, 1995 and all cheques were signed by him. The bank statement and the copies of cheques collected by the police showed that Mr. S.P. Gupta was director of M/s Sunair Hotels and M/s HJ Consultant and he was partner in M/s Janki Export International and other two accused viz Kaveen Gupta and Vipul Gupta were also directors and partners in these companies. By rotation of Rs. 1 crore 21 times, shares worth Rs. 6 crore were fraudulently were allotted to Mr. S.P. Gupta and shares worth Rs. 14,99,16,000/- were allotted to other family members of Mr. S.P. Gupta. Accused Kevin Gupta and Vipul Gupta were allotted shares worth Rs. 5.6 core and it was also revealed that fake book entries were created to misrepresent the petitioner about depositing of Rs. 21 crores aggregate in the account of M/s Sunair Hotels as a contribution from promoter directors. Mr. S.P. Gupta induced the complainant company to invest a further amount of Rs. 15.8 crores on the basis of such false entries to M/s Sunair Hotels Pvt. Ltd.
3. The petitioner in the petition stated that the share worth Rs. 2,09,91,600/- which were allotted to the respondent on the basis of a rotation of monies were liable to be seized by the police under Section 102 of Code of Criminal Procedure but the same were not seized. The State found that part of all these shares have been pledged to Tourism Finance Corporation of India. The State then gave a communication to Tourism Corporation of India not to deal with the shares in any manner without permission of the Court. The petitioner submitted that despite the FIR, the family members who were shareholders, holding illegal shares, continued to receive notices of the meeting as shareholders and exercised their right to vote as allottees of such shares. The family members, overriding objections of the petitioner, approved incorrect annual accounts of the company on the basis of tainted and fraudulently obtained shares. The petitioner pleaded that the investigating agency should be directed to take physical possession of the shares to ensure that family members derive no benefits from the use of these shares and filed the instant writ petition with abovementioned prayers.
4. The FIR registered against the respondents also reveals that petitioner had moved a Company Petition No. 45 of 1998 before the Company Law Board with the prayer to declare the allotment of Rs. 2,09,91,600/- worth shares by M/s Sunair Hotels to Mr. S.P. Gupta and others to be illegal, null and void. The Company Law Board vide order dated 13th June, 2001 disposed of the Company Petition refusing to declare the allotment as null and void. Against this order, the petitioner has already filed an Appeal before this Court which is pending adjudication before another Bench of this Court.
5. Since the Company Law Board has already considered the issue whether the allotment of these shares has to be declared as null and void or not and has refused to grant any relief to the petitioner and the petitioner has already preferred an Appeal against that order, the instant petition seeking the above reliefs is not maintainable before this Court. Even otherwise, it is settled law that the investigation is the prerogative of the investigating agency and this Court cannot act as a supervisory authority over investigation of a case and cannot give directions to the investigating agency to seize the property. If the petitioner is aggrieved by the manner of investigation or non-seizure of the property, the petitioner should approach the concerned court of Metropolitan Magistrate, who has ample powers under Cr.P.C. to order for custody of any property. This writ petition does not lie.
6. In view of my foregoing discussion, this petition is not maintainable and is hereby dismissed as such.