Ashok Kriplani vs Shiva Texyarn Ltd. & Ors.
2014 Latest Caselaw 4192 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 05th September, 2014

+       CRL. M.C. No.3057/2014

ASHOK KRIPLANI                                             ..... Petitioner
                            Through:       Petitioner in person.

                            versus

SHIVA TEXYARN LTD. & ORS.                              .....Respondents
                 Through:                  Mr. Feroz Khan Gazi, APP for
                                           the State.

CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH

VED PRAKASH VAISH, J. (ORAL)

1. This is a petition under Section 482 Cr. P.C. assailing order dated 04.04.2014 passed by learned Additional Sessions Judge, Tis Hazari Courts, Delhi whereby the criminal revision petition filed by the petitioner was dismissed.

2. The brief facts giving rise to the present case is that the petitioner filed a complaint for the offence under Section 34/107/193/409/420/120B IPC against M/s. Shiva Texyarn and nine other persons/accused persons. The case of the petitioner is that in April/May 1995, the petitioner had borrowed a sum of Rs.6 lakhs from the branch office of proposed accused No.1/Shiva Texyarn Ltd. (formerly Annamalai Finance Ltd.) for a period of one year and on 04.04.1995, the petitioner executed an agreement and three partially blank promissory notes of Rs.2 lakhs each. The said loan was

executed by pledge of shares of more than Rs.8 lakhs and subsequently on demand collateral security of property of office flat was given. In the year 2002, proposed accused No.1 filed a civil suit for recovery of Rs.13 lakhs and in the said suit it was pleaded that proposed accused No.1 had some remaining pledged shares of the complainant. Later on, in November 2006, proposed accused No.1 disclosed that he had sold the said shares in the year 2003 for less than Rs. 1 lakh. It is alleged by the petitioner that the sale of pledged shares was intimated to him by the accused company to his company by telegram in April 2006. It is also alleged that proposed accused has misappropriated the shares of the petitioner. It is further alleged that the proposed accused Nos.1 to 6, abetted by proposed accused Nos.7 to 9 have not been able to provide the full details of documents regarding sale of said shares. It is also alleged by the petitioner that proposed accused Nos.7 to 9 as per the Advocates' Act are not acting as the officer of the Court but are supporting the misdeeds of proposed accused No.1 through proposed accused Nos.3 to 6. The proposed accused Nos.7 to 9 have knowledge of false evidence, allegation and illegalities of the proposed accused Nos. 1 to 3 in various Courts.

3. At the outset, it may be mentioned that the petitioner who is present in person submits that he is not pressing the complaint against respondent Nos.3 and respondent Nos.7 to 10 in the original complaint. He also submits that he is dropping the provisions of Sections 193 and 420 of IPC.

4. In support of his case, the petitioner examined as many as six witnesses in pre-summoning evidence. After recording pre-

summoning evidence, the complaint was dismissed by learned Metropolitan Magistrate, Central, Delhi vide order dated 16.12.2013.

5. The petitioner filed Crl. Rev. No.70/14 which was dismissed by learned Additional Sessions Judge, Central, Delhi vide order order dated 04.04.2014.

6. Feeling aggrieved by the said order, the petitioner has filed the present petition.

7. Learned counsel for the petitioner submits that the petitioner deposited the shares as collateral security and the shares were pledged with the proposed accused No.1. In violation of terms of agreement, proposed accused No.1 sold the said shares.

8. The petitioner further submits that the proposed accused No.1 filed a recovery of suit for Rs.13 lakhs in the year 2002 and after filing of the suit, the proposed accused could not have transferred/sold the said shares. According to the petitioner, the respondents have commit criminal breach of trust.

9. A copy of Agreement cum Pledge dated 04.04.1995 has been placed as Annexure P3 to the petition, which reads as under:-

"In case of expiry for the term or in case of any of the events happening as stated herein before, the company would have the full rights to sell, dispose off or realize the said securities on such terms and for such price that the company thinks fit and apply the net proceeds towards the satisfaction of the balance outstanding in the overdue account including charges, expenses etc. Any default in payment for dues would entail an additional interest charge of 2 on the entire facility,

leviable from the date of the default without prejudice the company's other rights available as per this agreement. The said pledge securities and the promissory note would be a continuing security to the company for all monies which are due from the borrower, it is declared that such securities are free from any charge and the parties undertake to keep them as such during the time the said securities are pledged with the Company. The borrower hereby confirm that they have the right of ownership on the assets pledged and the documents of pledge are valid. The borrower undertakes to give irrevocable power of attorney in favour of the said finance company authorizing them to sell or transfer the said pledged securities for the purposes of adjustment to the dues."

10. In the instant case, the petitioner had taken loan of Rs.6 lakhs in a month of April/May 1995, the petitioner had deposited certain shares as a security with respondent No.1 and an agreement dated 04.04.1995 was executed. The petitioner could not repay the said amount of loan. The respondent No.1 had sold the shares in the year 2003 and filed a suit for recovery of Rs.13 lakhs against the petitioner.

11. The learned Additional Sessions Judge, Delhi and Metropolitan Magistrate have given a concrete finding that the matter in issue is based on a contract between the parties and the violation, if any, would have given the parties a right to claim damages/specific performance of the contract. It was also concluded that the agreement Ex.PW3/1 clearly provides that the proposed accused had the discretion to sale or dispose of the security without being liable for any liability or damages in case the value of the same fell to an extent to create deficiency in the margin requirement.

12. Chapter XV of the Code of Criminal Procedure envisages the procedure regarding complaints to the Magistrate. Undisputedly, when an information is laid with the police, but no action is taken in that behalf, the complainant is given power under Section 190 read with Section 200 of the Cr.P.C. to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint. In case, the Magistrate after recording evidence finds a prima facie case, he is empowered to direct the police to investigate into the offence under Section XII of the Cr.P.C. and to submit a report. In case the Magistrate finds that the complaint and the evidence recorded by him prima facie discloses evidence, he is empowered to take cognizance of the offence and would issue process of the accused. However, in case the Magistrate finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Cr.P.C. The same was highlighted by the Hon'ble Supreme Court of India in All India Institute of Medical Science Employees' Union (Reg.) through its President vs. Union of India & Ors., (1996) 11 SCC 582.

13. The concurrent findings recorded by learned Additional Sessions Judge and Metropolitan Magistrate, Delhi does not call for any interference. There is no infirmity or illegality in the impugned order. The petition deserves to be dismissed and the same is hereby dismissed.

(VED PRAKASH VAISH) JUDGE SEPTEMBER 05, 2014/gm