Bombay High Court

Vinay Goel And Anr vs The Securities And Exchange Board ... on 13 June, 2023

Bench: S. V. Kotwal

2023:BHC-AS:16118



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                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CRIMINAL APPELLATE JURISDICTION

                             CRIMINAL REVISION APPLICATION NO.362 OF 2022

                    Vinay Goel & Ors.                                     .... Applicants

                             versus

                    The Securities and Exchange
                    Board of India & Anr.                                 .... Respondents
                                                        .......

                    •     Mr. Prashant Trivedi i/b. Sudha Dwivedi, Advocate for Applicant.
                    •     Ms. Anubha Rastogi a/w Ms. Rachita Padwal, Advocate for
                          Respondent No.1 (SEBI).
                    •     Ms. Pradnya Pawar, SEBI Officer.
                    •     Mr. A. R.Patil, APP for the State/Respondent.

                                                CORAM        : SARANG V. KOTWAL, J.

                                                DATE         : 13th JUNE, 2023

                    P.C. :


                    1.            The      Applicant   has   challenged     the      order      dated

02/07/2022 passed below Ex.52 by the SEBI Special Court. The

Applicants are the original accused in SEBI Special Case No.20

of 2015 pending before the designated Special Court under the

SEBI Act, 1992. The allegations against the Applicant is that

they were partners of the firm M/s. Balaji & Co. SEBI received a

complaint dated 19/06/2001 from one JP Mittal stating that the

Nesarikar

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accused firm was dealing in securities as an unregistered sub-

broker without obtaining the registration certificate from SEBI.

The accused was informed about this by a letter dated

11/09/2001 issued by SEBI directing the accused to seek

registration immediately. But no steps were taken and therefore

the complaint was filed on 24/09/2002 by SEBI u/s 24 (1) of

the Securities and Exchange Board of India (SEBI) Act, 1992, for

violation of section 12 of the SEBI Act, the Regulation 3 of SEBI

(Stock Brokers and Sub-brokers) Regulations 1992 and section

17 of the Securities Contracts (Regulation) F, 1956.

2. The initial the complaint was filed before the

Magistrate and he took cognizance in this offence. Subsequently,

the case was transferred to the Specially designated Court under

Special Act. The Respondent No.1 SEBI realized that there was

delay of 97 days in filing the complaint and therefore

application for condonation of delay below Ex.52 in the said

case was made. The said application was allowed. The learned

Judge relied on the ratio of the judgment of Hon'ble Supreme

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Court in the case of Sukhdev Raj Vs. State of Punjab, as reported

in 1994 Supp (2) Supreme Court Cases 398 and condoned the

delay of 97 days in filing the complaint by making reference to

section 473 of Cr.P.C.

3. The said order is under challenge in this Revision

Application. Learned counsel for the Applicants submitted that

the application for condonation of delay was filed much

belatedly i.e. in the year 2022 whereas the complaint was filed

in the year 2002. The cognizance was already taken on

03/10/2002 and therefore there was inordinate delay in filing

the condonation of delay application. He submitted that in such

a case, after the cognizance was taken, it was impermissible to

condone the delay. He relied on the judgment of Single Judge

Bench of this Court in the case of Jethmal Himmatlal Jain &

others Vs. State of Maharashtra, as reported in 1981 SCC Online

Bom. 54. He submitted that at this belated stage learned Judge

should not have condoned the delay particularly when the

cognizance was taken almost 20 years back.

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4. Learned counsel for the Respondent No.1 supported

the impugned order and she relied on the aforementioned

Sukhdev's case.

5. I have considered these submissions. The learned

Judge has referred to section 473 of Cr.P.C. which reads thus;

"473 - Extension of period of limitation in certain cases -

Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may make cognizance of an offence after the expiry of the period of limitations, if is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do the interests of justice."

6. The offence was punishable with imprisonment for one

year and therefore period limited for filing of the complaint was

for one year. The question is whether the delay could have been

condoned after taking the cognizance and whether there is any

bar for condoning the delay if it is subsequently realized that

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there was delay in filing the complaint which is reflected from

the facts of this case. In this context the order of the Hon'ble

Supreme Court in Sukhdev's case answers the issues. The order

reads thus :

"ORDER The appellant has been convicted under Section 9 of the Opium Act and sentenced to three years' RI and to pay a fine of Rs.5000, in default to undergo six month' RI. He was found in possession 23 kgs of opium. In the appeal before the High Court the only question raised was that though occurrence took place on 31-5-1974 challan was filed on 29-8- 1977, therefore, no cognizance could have been taken in view of Section 468 of Cr.P.C. The High Court has considered this aspect and after referring to Section 473 CrPC held that in the facts and circumstances of the case the court can take cognizance if the delay has been properly explained or that it is necessary to do so in the interest of justice. In any event in this case an application was filed for condoning the delay and also explaining the delay at later stage. According to the learned counsel for the appellant such an application was filed only

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after almost at the time of conclusion of trial and before judgment was delivered. If may be noted Section 473 CrPC does not in any clear terms lay down that the application should be filed at the time filing a challan itself. The words "so to do in the interest of justice" are wide enough and the court accepted the explanation. Therefore, there are no merits in this appeal. The appeal is accordingly dismissed."

7. In the facts of this case of the Hon'ble Supreme Court,

the application for condonation of delay was filed almost at the

time of conclusion of the trial and before the judgment was

delivered. The Hon'ble Supreme Court observed that section 473

of Cr.P.C. does not in any clear terms lay down that the

application should be filed at the time of filing the challan itself.

The words 'so to do in the interest of justice' are wide enough.

8. The ratio of this order of the Hon'ble Supreme Court is

clear enough. The Hon'ble Supreme Court has interpreted

section 473 of Cr.P.C. and if laid emphasis on the words 'so to do

in the interest of justice'. In this case, though the application for

condonation of delay was filed after many years, the case was