Criminal Misc. -M No. 30453 of 2011 (1) IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Criminal Misc. -M No. 30453 of 2011 (O&M) Date of decision : 25.11.2011 Vikas Kumar .. Petitioner versus State of Punjab .. Respondent Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Puneet Kansal, Advocate, for the petitioner. Mr. B. B. S. Teji, Senior Deputy Advocate General, Punjab. Mr. V. K. Sandhir, Advocate, for the complainant. Rajesh Bindal, J. Prayer in the present petition is for grant of pre-arrest bail to the petitioner, who is accused in FIR No. 309 dated 13.9.2011 registered under Sections 420, 467, 468, 471, 120-B IPC at Police Station Civil Lines, Amritsar City. Learned counsel for the petitioner submitted that the petitioner in the present case is merely working as Manager with M/s Karvy Stock Broking Limited (hereinafter to be referred as, 'the Company') at Amritsar Branch. The complainant was having a trading account with the company. There were regular transactions of purchase and sale of shares executed on the instructions of the complainant since February 2008 till September 2010 running into lacs of rupees. The allegations that the petitioner had embezzled a sum of ` 4 lacs deposited by the complainant with the company, are totally false as whatever amount was deposited by the complainant in her account, the same was duly accounted for. Further the allegation that the complainant never traded in Future and Option Segment during the period from 23.5.2010 to 28.5.2010 as alleged in the FIR are false. Starting from 2.5.2010, transactions were being made in Future and Criminal Misc. -M No. 30453 of 2011 (2) Option Segment. The complainant was regularly informed about the transactions entered into on her behalf. The allegation in the FIR is that on account of accident of the husband of the complainant on 15.5.2010, she was busy from 23.5.2010 till 28.5.2010, as he was hospitalised and during this period certain transactions were made by the petitioner without the consent of the complainant. However, even if the loss suffered by the complainant is calculated for this period, the same would come out to ` 30,000/- to ` 40,000/- and not ` 4 lacs. Perusal of the FIR shows that ` 4 lacs were deposited by the complainant with the company from February 2008 till May 2010. During this period, transactions worth lacs of rupees were made in the account of the complainant. He further submitted that Clause 13 of the agreement signed between the parties, provides for arbitration clause, in terms of which an arbitrator is to be appointed by the Stock Exchange in case there is any dispute regarding accounts. The liability being civil, the complainant can very well invoke that provision. Initially, the complaint filed by the complainant was enquired into and the same was directed to be filed. However, subsequently a fresh enquiry was conducted and the present FIR was registered. On the other hand, learned counsel for the State submitted that there are specific allegations against the petitioner in the FIR. He further submitted that loss allegedly suffered in the transactions from 23.5.2010 to 28.5.2010 comes to ` 35,000/-. In initial enquiry conducted by the Superintendent of Police, it was found that no case is made out, however, on a subsequent representation received from the complainant, the matter was investigated and the FIR was registered. Learned counsel for the complainant submitted that transactions in the stock market could be made by the broker on behalf of a client either when the client is present in person in the office or by issuing instructions on telephone. The telephone conversation is required to be recorded. In the present case, nothing has been produced by the petitioner to show that any instructions were ever issued by the complainant. The complainant is a poor lady. The amount of transactions made by her in last two years does not show that she is rich enough as it is only day to day trading of shares, which were bought and sold on the same day. However, it Criminal Misc. -M No. 30453 of 2011 (3) is not disputed that transactions prior to May 2010 were conducted on her instructions. The submission is that the arbitration clause is to be applied where the dispute is of civil nature. In the present case, the complainant has been cheated by the petitioner as certain transactions were entered into without the instructions of the complainant. Considering the fact that the complainant has been cheated by the petitioner, he does not deserve concession of pre-arrest bail. After hearing learned counsel for the parties and considering the fact that the complainant had been dealing in shares through the company where the petitioner is working as Manager, since February 2008. She had been buying and selling the shares on same day. Meaning thereby that she had some knowledge of stock market. The transactions prior to May 2010 are not in dispute. Even it was submitted by learned counsel for the complainant that some profit has been withdrawn by her. The dispute is pertaining to transactions in Future and Option Segment. The submission that the complainant has been cheated of ` 4 lacs could not apparently be made out as it is the amount which was deposited by the complainant with the company from February 2008 till May 2010 on different dates. The same is shown to be credited in her account, as is produced on record. It could not be established that the petitioner was in any way beneficiary of the transactions entered into. Considering the aforesaid facts, in my opinion, the petitioner is not required to be taken into custody for interrogation. He shall appear before the Investigating officer on 3.12.2011 at 10.00 a.m. for joining investigation. In case of his arrest, he shall be released on furnishing of bail bonds to the satisfaction of the Arresting/ Investigating Officer. He shall appear before the Investigating officr as and when called upon for further investigation. He shall also be bound by all the conditions as contained in Section 438 (2) Cr.P.C. The petition stands disposed of. ( Rajesh Bindal ) 25.11.2011 Judge vs