TMI Blog1997 (8) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... accused Nos. 8 to 19 in relation to accused No. 7 Company. 3. Accused No. 7 Company had decided to come out with a public issue on or about 9-12-1995 worth ₹ 446.76 lakhs. 44,67,600 Equity Shares of the face value of ₹ 10/- were, therefore, floated and offered to public. 4. The complainant, in each of the cases, had applied for the shares and had paid money also for shares being allotted to them. 5. Accused No. 1 Company was acting, as Registrar to issue, as understood under the capital issue market and regulations, statutes, etc. governing the same, though strictly speaking, under the Companies Act, they do not find any mention whatsoever. For the offences under the Companies Act, therefore, if at all there be any one responsible, it would be accused No. 7 Company and all or any of its Directors from accused Nos. 8 to 19. As a corollary thereto for offences, if any, under the Companies Act, accused No. 1 Company which will now be referred to as Registrar to issue , and its Directors from Nos. 2 to 6 could not be held responsible. 6. So far as the complaints are concerned, either it be under the Companies Act or under the Indian Penal Code, the averments ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by earlier petitions being M.C.A. No. 1571 of 1996 and M.C.A. No. 6334 of 1996 with M.C.A. Nos. 2451, 1581, 1591, 1598 and 1599 all of 1996. Except for M.C.A. No. 6334 of 1996, which came to be withdrawn, rest were dismissed by different learned Judges of This Court on different dates. However, in course of these different applications and petitions as well as during the pendency of the present applications and petitions, duplicate share certificates for each of the complainants came to be deposited with the Registrar of the High Court. 13. Civil litigation also was initiated in the Court of City Civil Court of Ahmedabad being Civil Suit No. 985 of 1996 and others. The reliefs claimed thereunder are very interesting. The suit is filed against accused No. 1 and accused No. 1 Company joining them as defendant Nos. 1 2 respectively. The other defendants are: No. 3-President, Ahmedabad Stock Exchange, No. 4-Secretary, Bombay Stock Exchange, No. 5-Executive Director by name one Mr. Rao of Securities and Exchange Board of India (SEBI), No. 6-SEBI, No 7-Registrar of the Companies, State of Gujarat, Ahmedabad, No. 8-Company Law Board, Western Region, Bombay. 14. The relief claime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence under Section 73 read with Section 123 of the Companies Act. The complaint for offences under different sections of Indian Penal Code has been read on the agreed position between the parties and it is produced at pages 40 to 50. The offences disclosed are Sections 197, 403, 421, 464, 466, 468, 471 of I.P.C. 20. So far as the petitioners before the Court in different applications are concerned, they are original accused Nos. 3, 4, 8, 9, 13 and 15. As the complaints pending before the trial Court have not been challenged by all accused and particularly with regard to the offence under the Companies Act and the matter has to be dealt with in two clear parts with reference to respective accused Nos. 1 to 6 and 7 to 19, obviously, it will not be proper to enter into the merits of the case. To the extent necessary, 1 will be referring to the provisions of various offences and to the extent possible, without reference to the merits of various allegations, the plea of the respective applicant-petitions will be decided as to whether complaint against all or any of them be quashed or not. So far as the offences under the Companies Act are concerned, obviously, accused Nos. 3 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 24. Now comes the question of offences under the Indian Penal Code. The first and foremost section required to be considered for the purpose is Section 197, which reads as under: Whoever issues or signs any certificate required by law to be given or signed or relating to any fact of which such certificate is by law admissible in evidence, knowing or believing that such certificate is false in any material point, shall be punished in the same manner, as if he gave false evidence. Rest of the allegations are based on the alleged forged certificates said to have been given by the accused in collusion with each other. When a specific question was asked to the learned Advocate for the respondent-complainant Mr. R.B. Desai with Shri Y.S. Lakhani as Senior Counsel, the following certificate was read over. It reads as under: This is to certify that we have completed on 22nd January 1996 the despatch of all share certificates, refund orders, justation brokerage cheques and cancelled stockinvest to all investors/brokers including stockinvest applicants of M-TOUCH FINANCE LTD. AND we have also despatched allotment advice on 22-1-1996 to N.R.I. allottees and the share ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst Directors will have to be quashed. 27. Apart from this, when a Company is said to be an offender for the purpose of offences under the Indian Penal Code, merely because a person happens to be a Director to consider his or her involvement in the offence cannot be assumed. Involvement has to be pleaded specifically. For making out the allegation of constructive liability, either there has to be sharing of common intention, as provided in Section 34 of I.P.C. or common object, as per Sections 149, 120-B, if there is allegation of conspiracy and allegations of abetment, if made, as per Sections 107 to 114. In absence of any of these evidences, mere holding of post of Director in a Company cannot make an accused responsible for the alleged offences. 28. The provisions of the Companies Act, as made in Section 5, clearly identify, could be the officer held to be in default. Either for offence under the Companies Act or for offence under the Indian Penal Code, for the aforesaid reasons, nothing is to be found in the complaint prima facie against the accused. 29. The petitions are, therefore, required to be allowed. They are accordingly allowed. The complaints filed against ..... X X X X Extracts X X X X X X X X Extracts X X X X
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