Nandagopal v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 15.09.2009CORAM:THE HONOURABLE MR.JUSTICE R.REGUPATHICrl.O.P.Nos.1932 of 2008 & 5060 of 2009and M.P. Nos. 1 & 2 of 2008 in Crl.O.P. Nos. 1932 and M.P. Nos. 1 & 4 of 2009 in Crl.O.P.No.50601. Nandagopal / A6 .... Petitioner in Crl.O.P.No.19322. Padma Balasubramaniam / A33. Thirupuravalli / A4.... Petititioners 2 & 3 in Crl.O.P.No.5060Versus1. State rep. by the Inspector of Police Crime Branch, Egmore Chennai - 8.... Respondent in bothCrl.O.P.Nos.1932 and 50602. Mr. G. Subramania Bhatta .. Respondent in Impleaded the 2nd Respondent as perCrl.O.P.No.5060 order of this Court dt.3.4.09 in Mp.3/09Prayer in Crl.O.P.No.1932: Petition filed under Section 482 Cr.P.Cseeking for a direction to call for the records in C.C. No. 374 of2006 on the file of the Additional Chief Metropolitan Magistrate,Egmore, Chennai and quash the proceedings against this accused who isarrayed as accused A6 in this case.Prayer in Crl.O.P.No.5060: Petition filed under Section 482 Cr.P.Cseeking for a direction to call for the records of the case in C.C.No. 374 of 2006 on the file of the Chief Metropolitan Magistrate,Egmore and quash the proceedings against the accused.For petitioners 1-3: Mr.C. RajanFor Mr. R. RamanlaalFor R1 : Mr.N.R. ElangoAddl. Public ProsecutorFor R2:R. RajarathinamC O M M O N O R D E RThe petitioners are accused in C.C. No. 374 of 2006 foroffences punishable under Section 409, 419, 465, 467, 468, 471 and420 r/w 120-B of IPC. Crl.O.P.No.5060 has been preferred by A3 & A4of the case. A1 is the Managing Director of the company & A2 is the https://hcservices.ecourts.gov.in/hcservices/ Director and custodian of the shares of the company. A3 is the wifeof the Chairman and A4 is the mother of A1. A6, the petitioner inCrl.O.P. No. 1932 of 2008 is one of the staff of the company.2. The case of the prosecution is that the defacto complainantwas working in the company of the 1st accused from 1992 to 1997 andduring which period salary was not given, but 1,20,000 shares wereallotted as original allotment. It is the claim that the value of theshares is Rs.50,00,000/-. It is alleged that the 1st accused, withoutthe knowledge of the defacto complainant transferred one lakh sharesto A3 and 20,000 to A4. For effecting such transfer in the transferform, prepared by the 1st accused, A6 is alleged to have attested hissignature of transferees.3. Counsel for the petitioner submits that though A3 and A4 areclosely related to A1, shares were transferred by A1 to A3 & A4 andthe materials are available to substantiate that A3 & A4 haveassigned their signature in the transfer form to constitute theoffences alleged, the ingredients of the offences must be proved andon perusal of the entire materials, allegations against these accusedare not constituted. Admittedly, A3 & A4 are the transferees and ithas been prepared only by A1. The fraudulent transfer of the shareshas been attributed only to A1 and the petitioners A3 & A4, who arealso equally shared those dishonest and fraudulent intention with A1cannot be attributed. The petitioners were not even aware thattransfer has been effected by fraudulent means. Both the petitionersin Crl.O.P. No.5060 are ladies aged about 57 and 83 respectively.They have not played any active role in this transfer. It is A1 andother Directors, who are in-charge and responsible for the affairs ofthe company including share transfer. Under such circumstances, thetransfer of shares by fraudulent means was effected without theknowledge of A3 and A4. Though signatures of A3 and A4 were obtained,it must be proved beyond any doubt that petitioners are consciouslyaware that it was done with the dishonest intention along with 1staccused. Unless there are materials to constitute and every reason tobelieve that the petitioners have committed offences in collusion andconspiracy with the 1st accused, the offences alleged cannot be madeout. In so far as the petitioner A6 is concerned, admittedly, therole played by the petitioner/A6 is that he attested his signaturefor A3 & A4. He is an employee of the company and merely because ofthe reason for his attestation in the share transfer, he cannot beimplicated with knowledge and dishonest intention attributed to the1st accused. A6 was not the custodian of the shares and he was notaware of the fact that under what circumstances the shares weretransferred and admittedly, it came to him after preparation forreceiving signature as an attestor. Though the signature is found inthe transfer form, it cannot be attributed that he signed the sameknowingly. At the most, it may be stated that certain documents wereexecuted wherein he attested and no criminal intention can beattributed against him. Learned counsel for the petitoner furthersubmitted by adverting Sections 467, 468 and 471 that firstly it mustbe proved that the accused has forged the documents and secondly,that such forged documents have been used by the accused as genuineand taken any personal advantage and further done the same withdishonest and fraudulent intention. Unless such knowledge on the partof the petitioners are substantiated, it cannot be claimed that the https://hcservices.ecourts.gov.in/hcservices/ petitioner is a party to the fraudulent offence committed by the 1staccused. Admittedly, A6 is not the beneficiary and though transfer ofthe shares to the name of A3 and A4 was made, such transaction wasknown consciously to A3 & A4 is in doubt and there is no allegationor averments in this regard. In order to substantiate hissubmissions, learned counsel for the petitoiners relied on a case lawreported in 1998 CRI.L.J.4091 (Suprement Court) Ashok Chaturvedi Vs.Shitul H. Chanchan wherein it is held as follow:"The petition of complaint is a vague one andexcepting the bald allegation that the shares ofthe complainant have been transferred on the forgedsignatures, nothing further has been stated andthereis not an iota of material to indicate how allor any of these appellants are involved in the so-called allegation of forgery. The statement of thecomplainant on oath as well as his witnesses do notimprove the position in any manner, and therefore,in our considered opinion even if the allegationsmade in the complainant andhis witnesses are takenon their face value, the offence under Sections406,420,467,468 and 120-B of the Indian Penal Codecannot be said to have been made out." In support his submissions, learned counsel for the petitionersfurther relied on a case law reported in AIR 1979 Suprement Court1890 (Chatt Ram Vs. State of Haryana).He further submitted that the petitioners have not done any forgeryand they have not presented the forged documents for any personaladvantage with dishonest and fraudulent intention. The offences,alleged as against the petitioners are not made out and hence, seeksto quash the proceedings. 4. Per contra, learned counsel for the defacto complainantsubmits that the defacto complainant was allotted 1,20,000 share inthe company of the 1st accused and the 1st accused, with the help ofothers transferred the entire shares to co-accused. Prima facieallegations have been made in the complaint to constitute theoffences and on perusal of those materials including the statement ofwitnesses, such allegations are made out. Under such circumstances,the grounds, agitated by the petitioners could be made before thetrial court and submits that it is not a fit case to quash theproceedings.5. Learned Additional Public Prosecutor submits that A3 is thewife of the Chairman and one lakh shares have been transferred in hername. In the transfer form, she has assigned her signature and thesame was attested by A6. Opinion has been received from the handwriting expert and it is proved that it is the signature of A3. Inview of the relationship of A3 with the 1st accused, it must beassumed that she is the beneficiary of the shares along with A1 andunder such circumstances, shares have been transferred only with herknowledge and the fraudulent and dishonest intention attributed tothe 1st accused is equally attributable to A3 also. He further submitsthat there are materials to constitute offences against A3. In so far https://hcservices.ecourts.gov.in/hcservices/ as A6 is concerned, it is submited that he will be knowing about thedefacto complainant as well as the circumstances in which shares weretransferred and since he attested the signature of the transferee,knowledge of dishonest and fraudulent intention can equally beattributed to A6. Adverting to the case against A4, learnedAdditional Public Prosecutor submits that based on the report, givenby the handwriting expert, stating that it is not the signature ofA4, fairly conceaded that case pending against her may be quashed.6. I have perused the materials available on record havingregard to the facts and circumstances of the case.7. On perusal of the charge sheet, it is stated that the accusedconspired and committed offences. The 1st accused in his capacity asManaging Director of the company was in charge and responsible to theaffairs of the company. The 2nd accused, one of the Directors was thecustodian of the shares of the company. It has been repeatedly statedin the charge sheet that the 1st accused has transferred the shares toA3 and A4 and the signatures of A3 and A4 were attested by A6. Thoughfraudulent and dishonest intention were apparent on the allegationsmade as against the 1st accused, similar such intention cannot beequally inferred to other accused namely the petitioners herein. Inview of the submissions made by the learned Additional PublicProsecutor, it appears that there is no material available as againstA4 who is aged about 83 years, mother of the 1st accused. Therefore,it appears that her signature has been forged by some one else. Evenas against A3, based on the signature found in the transfer formalone, she has been included as accused. On perusal of the statementof witnesses, I do not find any other materials to connect A3 withthe 1st accused except the relationship. She is also aged about 57years. The signature of A3 would have been assigned in the transferform at the request of her husband namely the Chairman of the companyor other accused. Under what circumstances shares were transferredmay be unknown to her. Modus operandi of the 1st accused was not knownto A3. There is no material available to constitute her knowledge offraudulent and dishonest intention for transfer of shares inconspiracy with A1. It is alleged that the 1st accused transferredshares of the defacto complainant and for such purpose, he has usedthe names of A3 & A4. Since signature of A4 does not tally, itappears that the signature of A4 has been assigned by some thirdparty. In so far as A6 is concerned, though it is stated that he isaware of the allotment of the shares to the defacto complainant, itcannot be known to him under what circumstances, shares weretransferred. Admittedly, A4 never signed the form. It appears thatthe form was produced before A6 for attestation and A6 attested thesame believing the same as that of A4 and since he happened to be aservant of the company, he has done so on request. Only because ofthe reason, that A6 attested the signatures of A3 and A4, thefraudulent and dishonest intention cannot be attributed to A6.Admittedly, A6 is not the beneficiary of the transaction and thecontent of the documents was not forged by A6. He has not used any ofthis document as genuine for getting any undue advantage for himself.On perusal of the statement of other witnesses, the participation ofA6 in the alleged fraudulent transaction was not substantiated. Undersuch circumstances, by accepting the contention raised by the learnedcounsel for the petitioners, I am of the considered opinion that it https://hcservices.ecourts.gov.in/hcservices/ is a fit case to quash the proceedings pending in C.C. No. 374 of2006 on the file of the Chief Metropolitan Magistrate, Egmore againstthe petitioners viz. A3, A4 and A6 and accordingly the case pendingagainst them are directed to be quashed. However, the learnedMagistrate can proceed with the case as against other accused andconclude the same in accordance with law.6. Accordingly, the Criminal Original Petitions are ordered.Consequently, connected Miscellaneous Petitions are closed.Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarArTo1. Chief Metropolitan Magistrate, Egmore, Chennai2. The Inspector of Police Crime Branch, Egmore Chennai - 83. The Public Prosecutor High Court, Chennai+ 2 CC to Mr.C.Rajan,Advocate,SR.4738+ 1 CC to Mr.K.Govi Ganesan,Advocate,SR.47285+ 2 CC to M/s.R.Ramanlaal,Advocate,SR.47567,47568+ 1 CC to Mr.R.Rajarathinam,Advocate,SR.47299Crl.O.P.Nos.1932 of 2008and 5060 of 2009VSV(CO)EM/29.9