1 Cr.WP 1960.11 - 30.08.11.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL WRIT PETITION NO. 1960 OF 2011 Dr. Piyush Mehta. ... Petitioner. V/s. The State of Maharashtra & Ors. ... Respondents. Mr. S.R. Chitnis, Sr. Counsel for the Petitioner. Mr. S.A. Shaikh, APP for the State. CORAM : K.U. CHANDIWAL, J. DATED : 30th AUGUST 2011. P.C. :- The Petitioner/Complainant impugns the order of learned Additional Chief Metropolitan Magistrate in MECR No.20 of 2000 dated 30th October 2010 granting ‘B’ Summary under Section 169 of Code of Criminal Procedure. 2. North Star Gems (India) Ltd. was a company came up with public issue of shares in the year 1995. The Petitioner is a Chairman and Managing Director of said Company. One Amit Shah allegedly offer to help the Petitioner in canvassing for the public issue. He in turn introduced Mr. Deepak Dalal (Accused No.5) to the Petitioner. Based on representation of Amit Shah (Accused No.6), an account was opened in bank of 2 Cr.WP 1960.11 - 30.08.11.sxw Madura, Bhadra Branch, Ahmedabad as the bank was to charge less commission from the Petitioner’s Company North Star Gems (India) Ltd. (for short NSGIL). (Bank of Madura has now been merged as ICICI Bank). The Petitioners allegedly was tempted to open an allotment money account and current account for depositing and managing the funds collected during the public offer with the said bank of Madura. The accused were working in the Bank. In the said account, an amount of Rs.3.25 crores was deposited. The Petitioner had authorised Mr. Dalal (Accused No.5) to operate the said account. However, the Petitioner received the bank statement for the period from 1.1.1996 to 3.4.1996. He found that the entire amount in both the accounts have been siphoned of . The transfer was made to other three companies of which Accused Nos.5 and 6 and one Mr. Girish Shah was the Director. Consequent upon the development, a complaint was filed by the Complainant in the Court of Metropolitan Magistrate, Girgaon against seven accused persons. The learned Metropolitan Magistrate directed investigation in terms of Section 156(3) of Code of Cr.P.C. Considering nature of accusation, the matter was investigated by GBCB CID, by registered the case as MECR No.20 of 2000. In the investigation it revealed that under no circumstances, call money account should be withdrawn. However, the bank employees transferred the amount of Rs.91.87 lakhs from call money account in the Current Account No.18700 and subsequently, transfer into the three Companies facilitating its siphoning of. It is alleged that there are two subsequent 3 Cr.WP 1960.11 - 30.08.11.sxw signature cards of Mr. Deepak Dalal which is absolutely against existing procedure of the bank. It also revealed, the signature appearing on these two specimen cards differ from each other. 3. Mr. Chitnis, learned Senior Counsel presented before me the photo-stat copies of the cheques to highlight the illegalities and irregularities committed by the named accused in the complaint. He took me to the remand application dated 21.3.2002, order of Division Bench and orders of learned Single Judge rejecting Anticipatory Bail Application of the suspects. At one stage, he even argued the ‘B’ Summary report by the Police is nothing but a mistake deliberately created to co-ordinate the culprits for extraneous reasons. 4. Learned APP by filing affidavit of Ashok Nana Ghuge, Police sub-Inspector, attached to Economic Offences Wing (Banking Unit), Crime Branch, Mumbai, dated 21st August 2011 accepted that there were two specimen signature cards of accused Deepak Dalal which was maintain by the Bank of Madura at Ahmedabad. This was allowed by the bank officials. This is so stated by K.R. Natrajan (Accused No.2) an old employee in the Bank. According to the deponent, the inquiry also further revealed that keeping two specimen signature cards of one consumer is against RBI norms. It was also informed that the record of the Bank could be available only for preceding 10 years. RBI notification dated 23.3.2006 (paragraph 5) was also tendered. The contention of the 4 Cr.WP 1960.11 - 30.08.11.sxw learned APP that at the relevant time there was directions of keeping two specimen signatures of the consumer followed by the bank. The bank officers only passed the cheque in good faith. There was no monetary gain or profit to the bank employee. No collusion is established. 5. Having gone through the record, prima-facie, I find that the Bank Officials did not discharge their duty honestly and deliberately. They co-ordinated siphoning of huge amount in the accounts of three companies Viz. Asian Fins-stock Ltd., Atlantic Credit & Capital Ltd., Multimedia Software Ltd. It is pertinent, the Additional Chief Metropolitan Magistrate, 19th Court, Mumbai, by his order dated 16.12.2006 has rejected ‘B’ Summary and he directed further investigation under Section 173 of Cr.P.C. However, investigator failed to collect further material. 6. It revealed that the total public issue was of Rs. 32,50,000/- shares, out of which, the Petitioner had taken hand delivery of Rs.31,24,700/- shares and then handed over these shares to Amit Shah and others allegedly for the purpose of price rigging and market stipulation. Even if this is so revealed in SEBI’s investigation, the fact remains that without legal authority, huge amounts are transferred under the signature of Deepak Dalal without following proper procedure, even banking system thereby, the complainant or his company was duped to huge amount. At this stage, it would be preposterous to hold, the Bank employees or the suspect had no monitory gain. 5 Cr.WP 1960.11 - 30.08.11.sxw 7. Observations of the learned Additional Chief Metropolitan Magistrate dated 30.10.2010, in paragraph 32 calls for interference as it was not a final stage to successfully prove the documents to be fabricated or forged. The primary evidence indicated that forgery was committed by the accused. They have misused the authority and co-ordinated in commission of offence. It could be under a common intention or part of a conspiracy. However, there could not a jumping carnage to the case of the Petitioner to dissolve the same by accepting ‘B’ Summary report. 8. Since the matter is to be entertained by the learned Additional Chief Metropolitan Magistrate, further dissection to the statements is avoided, lest it may more influenced to the learned Judge dealing with the matter. 9. Taking survey of the events coupled with the various orders, I find that the order dated 30.10.2010 does not depict correct position on prima-facie facts and warrants interference. 10. The order of learned Additional Chief Metropolitan Magistrate dated 30th October 2010 is set aside, more particularly stated in prayer clause (a) of the Petition. The parties to appear before the learned Additional Chief Metropolitan Magistrate, 19th Court, Esplanade, Mumbai, on 29th September 2011. (K.U. CHANDIWAL,J.) 6 Cr.WP 1960.11 - 30.08.11.sxw