: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.203 OF 2009 IN CRIMINAL WRIT PETITION NO.85 OF 2005 Mr. Sunil Narendranath More .. Applicant And Mr. Nana Dhondiba Desai & Ors. .. Applicants V/s. Vatsa Cop. Ltd. & Ors. .. Respondents ..... Mr. N.D. Desai, applicant no.2 in person present Mr. Kiran Kulkarni for respondent No.1 Mr. P.A. Pol, PP with Mrs. P.P. Shinde, APP for the State. ..... CORAM : B.H. MARLAPALLE & R.Y.GANOO, JJ. ORDER RESERVED ON : 29/01/2010 ORDER PRONOUNCED ON : 08/02/2010. ORDER : (PER R.Y. GANOO, J) 1. M/s. Vatsa Corporation Ltd. and M/s. Vatsa Music Ltd. (hereinafter referred as said Companies) had received fixed deposits from various depositors on different dates. It is the case of the said depositors that they have not received the principal amount though the said deposits had : 2 : matured for payment. It is also their case that interest receivable by them from time to time is not received by them. The said fixed deposit holders had invested the said amounts through broker by name Mr. Sunil N. More and the said investments were made on the advice of Mr. N.D. Desai who is the present applicant no.2. It is seen that said Mr. N.D. Desai on the strength of power of attorney executed in his favour has undertaken the task of seeing that the amounts payable to various fixed deposit holders are paid to them. It is admitted position that a sum of Rs.1,35,43,454/- deposited by said Companies is invested in the fixed deposit by this Court. 2. The present application is filed by Mr. Desai and others for the purposes of getting the monies towards the principal amount covered by the respective fixed deposits standing in the name of respective fixed deposit holders and the interest thereon. Rule was issued by this Court by its order dated 12th October, 2009 in regard to prayer clauses (1) and (2) only. Prayer clause (1) pertains to return of monies to various depositors whereas prayer clause (2) is as regards quashing of allegations levelled against Mr. Desai in the report filed by the Court Commissioner. 3. To the aforesaid application, one Mr. Bhavesh Mahesh Shelar, authorized representative of M/s. Vatsa Corporation Ltd.- respondent no.1 herein has filed his affidavit in reply. : 3 : 4. On hearing, Mr. Desai as party in person and learned advocates as mentioned aforesaid, it is noticed that on behalf of the said companies in terms of letter dated 20th August, 1999, certain amounts were admitted to be payable to the various fixed deposit holders. It is an admitted position that a sum of Rs.1,35,43,454/- is invested in this Court as mentioned aforesaid. 5. By order dated 1st April, 2005 passed in Criminal Writ Petition No.84 of 2005 and Criminial Writ Petition No.85 of 2005, Mr. Justice J.A. Patil, retired Judge of this Court, (hereinafter referred to as the learned Commissioner) was appointed as a Commissioner to investigate the claims of various deposit holders and other related matters. It is seen that the learned Commissioner has given his report on various points. On record of the Commissioner’s report, one finds a statement titled as “Total Outstanding Fixed Deposit Claim of 133 investors of Vatsa Corporation Ltd. and Vatsa Music Ltd. of Mr. Sunil More’s group (broker agent). The said statement mentions the name of the depositors, amount invested, date of maturity of the respective FDRs and interest calculation upto 31st December, 2007 at the rate of 6.15% per annum for an average period of 8 years, i.e. how from the statement one would get the principal amount covered by the respective fixed deposit and the interest payable. A xerox : 4 : copy of the said statement is enclosed and forms the part of this order. The Commissioner has considered the various claims of the various deposit holders and has arrived at the statement as mentioned aforesaid. 6. In the affidavit in reply filed on behalf of the company as stated above, an attempt is made to raise objections in order to see that the individual fixed deposit holder should not get any amount whatsoever. The said objections are of a diverse nature and principal objection raised is as regards non-production of FDRs and / or production of certain FDRs, which may be considered as forged. After having gone through the affidavit in reply as also the Commissioner’s report and the statement enclosed, one thing is certain that the Commissioner has carried out the exercise as to who are the fixed deposit holders and the principal amount payable to a particular fixed deposit holder and the interest component as mentioned aforesaid. Certainly, it is not the case of the said Companies that they have repaid to various fixed deposit holders the principal amount as well as the interest as per the term of the respective fixed deposit. No documentary evidence was produced before the Court at the hearing of this application to say that the amounts covered by the respective fixed deposits and the interest were repaid. 7. Mr. More and others had filed a Special Leave Petition (Criminal) : 5 : No.7079 of 2008 before the Supreme Court. In the Supreme Court, on 9th November, 2009 an order was passed thereby permitting this Court to pass appropriate ordes for the release of money in favour of various depositors. The relevant portion of the said order is as follows:- “We make it clear that this order may not stand in the way of the High Court in passing appropriate orders for release of money in favour of the depositors who are otherwise entitled for the same”. 8. Learned advocate appearing on behalf of the respondent no.1 made vain attempts to submit that since Writ Petition No.85 of 2005 is pending, no payment should be made to any person. After having considered the facts and circumstances of the case, it is clear that the substantial amount to the tune of Rs.1,35,43,454/- is invested by the Court and the learned Commissioner has arrived at definite finding as regards the pesons who are the fixed depsoit holders and their entitlement. Hence, we see no difficulty in paying various fixed deposit holders the amounts which are payable as per the statement arrived at by the learned Commissioner from and out of the monies, which are deposited in this Court by said Companies. 9. In order to arrive at modalities of payments and to see that the payment is made to a proper peson, the applicant namely Mr. Desai was directed to file following documents in respect of each and every depositor : 6 : whose name finds place in the list prepared by the Commissioner. viz. full name of the depositors, address of the depositors and the photographs of such of the depositors who are alive / available, to whom the payment is to be made i.e. payment to either or survivor or otherwise, amount payable to each deposit holder as per the statement made by the Commissioner, xerox copy of PAN card or card issued by the election commission and some document in the nature of electricity bill or a ration card to show the address of the depositor. Accordingly, a compilation of such documents was filed by Mr. Desai. 10. After receipt of the compilation of the above documents, the representative of the company was permitted to take the inspection of such documents. Mr. Mungekar, representative of the said Companies has taken inspection of the said record. Said Companies were permitted to file their objections with reference to the contents of the said compilation. On 29th January, 2010 Mr. Rajendra V. Mugekar, representative of the said Companies filed objections in the form of a statement. 11. We have afforded hearing to Mr. Desai as well as the advocate for the company. We have considered the plea of the applicants as regards the payment to be made to various depositors from and out of the amount which is already lying in this Court. After having perused the entire record and the statement made by the Commissioner as mentioned above, the : 7 : claim of various fixed depositors as regards principal amount and interest thereon is made out. In our view, the fixed deposit holders who are deprived of the principal amount and the interest thereon from time to time are entitled to have the said amounts from the amount which is lying in this Court. Ofcourse, as of today the amount payable to each depositor can be on the basis of the statement prepared by the Commissioner. It is in these circumstances, we are inclined to direct the Registrar (Judicial) to redeem the fixed deposit receipt / receipts lying in this Court covering the amount of Rs.1,35,43,454/-. After the said FDRs are redeemed, the Registrar (Judicial) shall make payment to various fixed deposit holders as set out in the list as per the specific directions mentioned in the operative part of this order. 12. So far as the identity of the person to whom the payment is to be made, perusal of the PAN in original or the card issued by the Election Commissioner of India would be the best document. Based on the said document, Registrar (Judicial) shall satisfy himself about the identity of the persons to whom the payment is to be made. It is noticed that certain deposits are standing in the name of more than one person, whereas certain deposits are standing in the name of a single person. It is also noticed that in certain cases though the depositors are more than two, photograph of only one person is affixed. It is also noticed that some of the fixed deposit holders have expired. It is also noticed that in certain : 8 : cases, out of two deposit holders, one deposit holder has expired in which case, ofcourse, the amount will be payable to the deposit holder who is alive. If all the depositors have expired, the heirs of the said depositor / depositors will have to obtain orders from the competent Court as to whom the monies should be paid. Upon production of such an order, the monies can be paid to the said person. Needless to mention that once, the Registrar (Judicial) makes payment to a particular person as per the method prescribed in this order, the companies shall get credit to the extent of the amount paid to the said deposit holders and to that extent the liability of the companies shall stand reduced. 13. In so far as prayer clause (2) is concerned, we are of the view that since the immediate purpose of various depositors will be satisfied by this order, it is not necessary for this Court to go into various points as regards allegations made against Mr. Desai as in our view, it is unnecessary to go into those allegations, at least at this stage. 14. In view of the aforesaid discussion, following order is passed to dispose of this application. ORDER (i) The Registrar (Judicial) shall redeem the relevant fixed deposit receipt / receipts wherein Rs.1,35,43,454/- are invested and create a fund for the payment of the monies to various depositors. : 9 : (ii) The Registrar (Judicial) shall make use of the compilation filed by the applicants wherein names of various depositors and other particulars along with respective photographs are found. If in a particular case both the depositors are alive, the payment shall be made to the first deposit holder on production of the PAN card or the card issued by the Election Commissioner of India by that depositor. In a case where photograph of first deposit holder is not affixed, the payment shall be made to the second deposit holder or the third deposit holder whose photograph is affixed. The Registrar (Judicial) shall satisfy the identity of such a person. (iii) The amount payable to each deposit holder shall be the one which is mentioned in the statement a copy of which is attached to this order. (iv) If none of the depositors are alive and a payment cannot be made in aforesaid terms, the persons who are claiming payment will have to obtain orders from the competent Court in the nature of heirship certificate / succession certificate and then only the payment shall be made to the said person. : 10 : (v) The Registrar (Judicial) shall act on the strength of this order as expeditiously as possible and initiate steps towards making payment to various depositors within two weeks from today (vi) A report regarding the refund to the depositors shall be prepared and kept on record in the Writ Petition, by the Registrar (Judicial). [R.Y.GANOO, J.] [B.H. MARLAPALLE, J.]