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TMI Blog2023 (5) TMI 1241X X X X Extracts X X X X X X X X Extracts X X X X ..... 19. 2. The crux of the allegation in Crime No. 39 of 2019 is that the defacto complainant borrowed a sum of Rs. 37,00,00,000/- (Rupees Thirty Seven Crores Only) from a company by the name M/s. Quantum Global Securities Limited (hereinafter referred to as 'M/s. Quantum' for the sake of convenience) by pledging Fourteen Lakhs shares of his company M/s. 8K Miles Software Services Limited (hereinafter referred to as 'M/s. 8K Miles' for the sake of convenience); that M/s. Quantum had disbursed Rs. 35,00,00,000/- (Rupees Thirty Five Crores) a loan; that the defacto complainant was asked to transfer another Nine Lakhs shares as the value of the shares had fallen down; that the defacto complainant came to know that the accused transferred Three Lakhs Seventy Four Thousand Five Hundred shares from his Demat Account by forging his signature on the Delivery Instructions Slip; that the accused thereafter transferred Ten Lakhs Twenty Five Thousand shares, by forging his signature and thus cheated the defacto complainant of his shares worth Rs. 98,00,00,000/- (Rupees Ninety Eight Crores only). Similarly the allegation in the Crime No. 282 of 2019 is that the defacto complainant obtained a loan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9/2019 was stayed by the Hon'ble High Court in CRL.OP of No. 23607, 15869, 18078, 18075, 30986 of 2019. In these circumstances in the order passed by the Hon'ble High Court in the anticipatory bail petitions given a conclusion that: "13. The Facts remains that the entire transactions has been borne out by records and is governed by MOU entered into between the parties. There is no privity of contract between the petitioners and the de facto complainant. This court is not able to find any strong materials in order to come to prima facie conclusion that these petitioners have acted in concert with A1 & A2. The entire sale / transfer of shares has happened in the normal course of business and all these transaction's have happened online and is borne out by records. In the considered view of this court there is no need for custodial interrogation of the petitioners and the petitioners can be granted anticipatory bail by imposing some conditions." 3. I most respectfully submit that I am Advised that all the transactions are predominantly civil in nature and therefore criminal prosecution may not be a justifiable remedy. The defacto complainant submits that he does not wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the offences alleged by the defacto complainant in the instant case. The grounds of the arrest of Mr. Hemal Arun Mehta and the impleading petition would show that it's their case that the defacto complainant's claim that he was duped cannot be believed. Therefore, when the Enforcement Directorate themselves have found out that the offences alleged by the defacto complainant have not been made out, the impugned FIRs are liable to be quashed. If the Enforcement Directorate have unearthed some other offences, it is for them to inform the concerned Agencies about the commission of the other offences under Section 66 (2) of Prevention of Money Laundering Act, 2002. However, in the instant case, the Enforcement Directorate had admittedly not informed, about the commission of any other offence unearthed during their investigation, either to the 1st respondent or any other agency. (d) The present claim of the Enforcement Directorate, that the defacto complainant had sold the shares of the company at manipulated prices and thereby cheated the general public was the subject matter of the proceedings before the Securities and Exchange Board of India (hereinafter referred to as 'SEBI' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the compromise arrived at between the parties. 6. Per Contra, Mr. A. Damodaran, the learned Additional Public Prosecutor, submitted that the FIRs cannot be quashed on mere asking just because the parties have compromised the issue. The impugned FIRs cannot be classified as disputes between private parties. It involves economic offences, and unless the Police are allowed to investigate and ascertain the truth, the FIRs cannot be quashed on the ground of compromise. The learned Additional Public Prosecutor further submitted that since the impugned FIRs were stayed by this Court, they could not conduct further investigation. Hence, he prayed for the dismissal of the quash petition. 7. Mr. AR.L. Sundaresan, the learned Additional Solicitor General of India (ASGI), for the impleading petitioner (i.e.) the Enforcement Directorate submitted that: (a) The impugned FIRs cannot be quashed on the basis of a compromise since other offences have been unearthed by the Enforcement Directorate, which has to be investigated. That investigation cannot be scuttled on the basis of a compromise said to have been arrived at between the parties. (b) The learned ASGI , further submitted that the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State's possession without the consent, constitute an offence of theft. Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173 CrPC before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure." (e) The learned ASGI also relied upon the observations of this Court in W.P.No. 5051 of 2023 in the order dated 29.03.2023. The said Writ Petition was filed by the second respondent/defacto complainant. This Court had held that the defacto complainant himself was found to be guilty of offences during the course of investigation of the case in Crime No.39 of 2019. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g a case under the PML Act, if any information or material comes to the possession of the Investigating Officer, he shall share the information or material in his possession with the agency concerned for necessary action. This clearly means that he cannot arrogate to himself the power of the agency concerned under another statute and conduct investigation under that statute." 9. Thus, there cannot be any dispute that the Enforcement Directorate officials can neither investigate offences committed under the other acts nor interfere in the investigation conducted by another agency. However, this Court is of the view that would not mean that they have no right to file an impleading petition and oppose a quash petition filed against the FIR in the predicate offence. Since the Enforcement Directorate is concerned with the proceeds of the crime, it cannot be said as a rule that they have no right to intervene and assist the Court in a quash petition challenging the proceedings relating to the crime (i.e) the predicate offence. Though they cannot supervise the investigation of another agency or interfere in their investigation, their views cannot be shut, while this Court is hearing a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eigning ignorance and he is complaining against the very same Company to which 10,16,000/- shares were transferred and Rs. 9.70 crores was received by the de facto complainant through A-1 Company out of the total of Rs.35 crores received by the de facto complainant. 13.The facts remains that the entire transaction has been borne out by records and is governed by MOU entered into between the parties. There is no privity of contract between the petitioners and the de facto complainant. This Court is not able to find any strong materials in order to come to a prima facie conclusion that these petitioners have acted in concert with A1 & A2. The entire sale/transfer of shares has happened in the normal course of business and all these transactions have happened Online and is borne out by records. In the considered view of this Court there is no need for custodial interrogation of the petitioners and the petitioners can be granted anticipatory bail by imposing certain conditions.'' 11. That apart, it is the admitted case of the Enforcement Directorate that the offence alleged by the defacto complainant is not made out and that the defacto complainant had suppressed certain vit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence or the value of any such property.'' Thus, it can be seen from the above observations made by this Court and the case of Enforcement Directorate that the allegations in the impugned FIR need not be investigated further as it is the case of all concerned that no offence is made out on those allegations. 14. Thus, under normal circumstances, this Court would have quashed the impugned FIRs for the aforesaid reasons without any further discussion. However, the Enforcement Directorate have now in their impleading petition, stated that the petitioners and defacto complainant have committed other offences. The impleading petition would state that the defacto complainant had indulged in this transaction of availing loan by suppressing his nationality to get rid of the regulatory requirements of NRE/NRI accounts. That apart the allegation is that some of the accused offered to manipulate the share prices of M/s.8K Miles and that they had manipulated the prices and brought back nearly 26 Lakh shares of M/s.8K Miles to the account of 2-3 HNI clients. It is further stated that one Hemal Mehta (one of the petitioners) had received 3 Lakh shares for the said work and out of which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shares. Shri Suresh has already obtained loan against his shares of 8K Miles from Indian Bank and was well aware that the loan against shares can only be obtained from the banks or NBFCs. Thus, the criminal conspiracy for which he filed the complaint with CCB, Chennai was not hatched between Shri Rohit, Shri Atul and Shri Bhavesh but instead hatched between Shri. Rohit, Shri. Ramani and Shri. Suresh prior to obtaining loan from M/s. QGSL and continued till all other accused came on board." 13. I submit that in the said process of availing illegal loan by Shri Suresh and to manipulate the share price of 8k Miles, Shri Rohit Arora introduced Shri Hemal Mehta to Shri. Suresh Venkatachari and he offered to manipulate the price of share of 8k Miles. He was given the task of manipulation of share price as well as bringing back all 26 lakh shares of 8k Miles to account of 2-3 HNI clients. For the said work, Shri Hemal Mehta brought other individuals on board. Shri Hemal Mehta received 3 Lakh shares for the said work out of which 1 Lakh shares were received directly in his own DMAT Account. He sold the said 1 Lakh shares immediately and liquidated the same. Thus, he generated proceeds o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curities market in any manner whatsoever, and further prohibited from buying, selling or otherwise dealing in securities, directly or indirectly, in any manner, whatsoever, for a period of three (3) years, from the date of coming into force of this order; (ii) Noticee no. 4 is restrained from accessing the securities market in any manner whatsoever, and further prohibited from buying, selling or otherwise dealing in securities, directly or indirectly, in any manner, whatsoever, for a period of one (1) year, from the date of coming into force of this order; (iii) The Noticee nos. 1, 2 and 3 are prohibited from being associated with the securities market in any manner whatsoever, including as a director or Key Managerial Personnel in a listed company or an intermediary registered with SEBI, for a period of one (1) year, from the date of coming into force of this direction; (iv) The Noticee no. 4 is prohibited from being associated with the securities market in any manner whatsoever, including as a director or Key Managerial Personnel in a listed company or an intermediary registered with SEBI, for a period of six (6) months, from the date of coming into force of this direction; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent police to investigate the Penal Code offences cannot be taken away. The Judgment of the Hon'ble Supreme Court in State (NCT of Delhi) vs. Sanjay and another reported in (2014) 9 SCC 722 makes that position very clear. The relevant observation of the Honourable Supreme Court is extracted in the earlier part of this order. The primary ingredient of the offence of Section 420 IPC is deception. Whether there was deception or not in the facts of the case is dependent on the findings of the SEBI. Therefore, the respondent police have to depend on the SEBI to ascertain if the deception has been practised on the general public. The deception, in this case, is the alleged manipulation of share prices which has been dealt with by SEBI. Therefore, in the facts and circumstances of the case, this Court is of the view that this is not a case where the respondent police can ordinarily investigate the offences, which are also violations under the SEBI Act, 1992. In this regard, the Judgment of Madhya Pradesh High Court in Alka Shrivastava vs. State of Madhya Pradesh reported in (2020) 9 TMI 1209 is extracted hereunder for better understanding: "33.What the police could have done was that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffence has been committed, unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum. If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money-laundering against him or any one claiming such property being the property linked to stated scheduled offence through him.'' 20. Therefore, from the above discussion, it is seen that the Enforcement Directorate's opposition to the quashing of the FIRs cannot be accepted. The Enforcement Directorate cannot resist the quashing of the FIRs prayed on the basis of compromise since the allegations in the FIRs have a predominant civil flavour which discloses a commercial dispute and is private in nature. There are no other victims or other persons involved in the offence alleged in the FIRs. The new offence said to have been committed by the petitioners alleged by the Enforcement Directorate has been the subject matter of the proceedings before the SEBI Act, 1992. The SEBI Act, 1992 provides for a comprehensive mecha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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