1 wp.1807-2011 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1807 OF 2011 Harsh J. Nahata & Anr. ...Petitioners. Vs. The State of Maharashtra & Anr. ...Respondents. ----- Mr. S.U. Kamdar Sr. Adv. i/b Rajendra Sorankar, for the Petitioners. Mr. A.S. Gadkari, APP for the State. Mr. Mahesh Jethmalani, Sr. Adv. i/b Mr. Rahul Moghe for Respondent No.2-original complainant. ---- CORAM: B. H. MARLAPALLE & U.D. SALVI, JJ. AUGUST 03, 2011. P.C.: 1. We have heard Mr. Kamdar, the learned senior counsel with Mr. Sorankar for the petitioners and Mr. Jethmalani, the learned senior counsel with Mr. Moghe for respondent no.2. Mr. Gadkari, the learned APP appears for the State of Maharashtra. 2 wp.1807-2011 2. Mr. Gadkari, the learned APP has placed before us the confidential note prepared by the Investigating Officer Mr. Abhay V. Saigaonkar and submitted through his superiors. We have perused the same. We have also perused the affidavit filed by the Investigating Officer. 3. CR No.132 of 2011 was registered with the M.R.A. Marg Police Station for an offence punishable under Section 409 read with Section 120(B) of IPC against the petitioners, who are the directors of the share broking firm by name M/s HJN Capital Services Pvt. Ltd. The said FIR was registered on the basis of the complaint dated 13.6.2011 submitted by Shri Narayandas Harjani who is one of the directors of M/s Aftershock Enterprises Pvt. Ltd. 4. It is not in dispute that the petitioners are known to the family of the complainant, and it appears that some times in September 2010 the complainant agreed to invest some amount on behalf of the company i.e. M/s Aftershock Enterprises Pvt. Ltd. and opened the Demat Accounts i.e. Demat Accounts bearing no. DP ID no.13011903, client ID 000047061. It was decided that petitioner no.1 would carry out the trading as per the 3 wp.1807-2011 instructions from the complainant and this trading was to be done on behalf of the company i.e. M/s Aftershock Enterprises Pvt. Ltd. In the month of November 2010, an amount of Rs.2,75,00,000/- was paid by the complainant to the petitioners for investment in the shares as per the instructions. However, the complainant noticed, sometimes in March, 2011, that three transactions i.e. first transactions dated 14.12.2010, second transaction dated 17.1.2011 and third transaction 17.2.2011 were suspicious, and there was a meeting between the parties. In the said meeting, the complainant received the account ledger statement for the period from 01.04.2010 to 30.11.2010 from the petitioners. The complaint filed by the complainant states that these transactions were bogus and were not as per the instructions. In short it is alleged that an amount of Rs. 2,75,00,000/- and the earlier amount paid for purchase of Satyam shares and even the proceeds of sale of Coal India shares (4501 shares) were misused and misappropriated, and thereby an offence as defined in Section 405 and punishable under Section 409 of IPC was alleged to have been committed by the petitioners. 5. Mr. Kamdar, the learned senior counsel submits that receipt of the amount is an accepted position but the said amount was agreed to be 4 wp.1807-2011 treated as a loan amount and the contract notes which were alleged to be bogus were in fact towards the payment of interest and the interest amount in each note was Rs.2,34,077.22/-. It was submitted that the amount has been accepted, and therefore, it must be deemed that the complainant accepted the loan transaction and in that circumstance, there cannot be a case of misappropriation of the amount paid by the complainant. Mr. Kamdar, therefore, urged that when there is no prima case made out for an offence punishable under Section 409 of IPC, the FIR registered against the petitioners is required to be quashed and set aside. He also submitted that the petitioner no.2 has resigned from the trading company with effect from 1.12.2010, and therefore, at least against her the complaint is required to be quashed. 6. We have perused the record. Petitioner no.1, in his capacity as a director of M/s HJN Capital Services Pvt. Ltd., addressed a letter dated 11.11.2010 to Mr. Heru Harjani director of M/s Aftershock Enterprises Pvt. Ltd. which reads, “We are in receipt of the following payments made by you Rs. 1,25,00,000.00 vide cheque no.270705 dated 8/11/2010 drawn on Royal Bank of Scotland. The said payment has been 5 wp.1807-2011 received by us for purchase of shares as per your instructions. Another cheque no.270703 dated 8/11/2010 for Rs. 1,50,00,000.00 (Rs. One crore fifty thousand) has also been issued to us by you for utilizing the funds for arbitrage purpose. We shall execute the transactions once the above mentioned payments have been cleared.” 7. Mr. Jethmalani, therefore, submitted that the said letter dated 11.11.2010 is an acknowledgment for having received an amount of Rs. 2,75,00,000/- for the purchase of shares as per the instructions from the company i.e. M/s Aftershock Enterprises Pvt. Ltd. 8. Having heard the learned counsel for both the parties as well as the learned APP, we are satisfied that a prima case for the investigation of an offence punishable under Section 409 of IPC has been made out by the complainant, and there is no case to quash and set aside the FIR registered against the petitioners. It is well settled that for the purpose of quashing the complaint, it is necessary to consider whether the allegations in the complaint prima facie make out an offence or not. It is not necessary 6 wp.1807-2011 to scrutinise the allegations for the purpose of deciding whether such allegations are likely to be upheld at the trial. For quashing the complaint by way of action at the threshold, it is, therefore, necessary to consider whether on the face of the allegations, a criminal offence is constituted or not. 9. It is also equally well settled that if the inherent power under Section 482 of Cr. P. C. was sought to be invoked for quashing of a complaint/FIR, the complainant must be made a party and he ought to be heard because it is he who is going to be affected. At the same time, the inherent power under Section 482 of Cr.P.C. is on the lines of a residuary power and it cannot be invoked for any relief which is otherwise provided under any other section of Cr.P.C. A three judge Bench in the case of R. P. Kapoor Vs. State of Punjab [AIR 1960 SC 866] stated, “....There is no doubt that this inherent power cannot be exercised in regard to the matters specifically recovered by the other provisions of the Code” It is thus clear that the protection like not to take any coercive 7 wp.1807-2011 action against the accused cannot be considered in an application filed under Section 482 of Cr.P.C. 10. Hence, the petition must fail at the threshold and the complaint filed by respondent no.2 is required to be investigated. Petition is rejected at the threshold as there is no case made out for quashing the FIR. 11. Interim order, if any, stands vacated. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.)