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TMI Blog2003 (4) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... r agents of the Appellant. They were returned to the 1st Respondent on the ground that the signature of the transferor differed. On 4th August, 1989 the 1st Respondent again lodged a fresh share transfer form, duly signed by Mr. Ambalal Shah, and share certificate with the transfer agents of the Appellant. The Appellants claim that as per their internal procedure one employee wrote down the name of the 1st Respondent and his son on the share certificate for purposes of putting them up before the Board of Directors. The Appellants claim that they thereafter realized that the transfer form was not sufficiently stamped, so the endorsement on the share certificate was cancelled without effecting a transfer of the share certificate. The transfer form and the share certificate were again returned to the 1st Respondent. On 19th September, 1989 the 1st Respondent again lodged the share transfer form and the share certificate with the transfer agents of the Appellants. These were again returned on 10th November, 1989 on the ground that some entries had been made in pencil instead of ink. 4) It is the 1st Respondent's case that on this occasion, all that was received by him was the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Law Board. 7) On 8th May, 1992 the Company Law Board dismissed the Petition filed by 1st Respondent on the ground that the Appellant Company was right in not registering the transfer of shares in the name of 1st Respondent as the transfer forms were not properly stamped. In its Order, the Company Law Board has recorded that they had called for and seen the records of the Appellant Company and found that no transfer had actually taken place into the name of 1st Respondent even though the name was mistakenly entered on the share certificate. 8) The 1st Respondent now filed a Complaint under Section 405, 420, 424, 467 read with Sections 34 and 114 of the Indian Penal Code. The complaint was against 7 accused persons. In this complaint process was issued, charges were framed. The 1st Respondent filed an application dated 9th March, 1995 to examine Pritika Prabudesai as a witness. Even though that application was posted for Orders on 15th March, 1995, no orders have been passed on that application till date. An application to delete accused No. 7 was made and granted on 7th February 1996. On 15th February, 1996 the prosecution closed its case. Then statements of accused, under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court then transferred the proceedings to the 38th Court, Ballard Estate, Mumbai. After the transfer the 1st Respondent moved an application again alleging illegalities and praying that the entire proceedings be quashed and a fresh proceedings take place. He also prayed that necessary witnesses be examined. This application was considered by the new Presiding Magistrate who, on 30th March, 1998, dismissed the application on the ground that such an application had earlier been dismissed and no revision was filed. It was held that this Court could not sit in Appeal over the earlier Order or take a different view. 12) The 1st Respondent then filed, on 24th April, 1998, Writ Petition No. 599 of 1998 wherein the Metropolitan Magistrate of the 33rd Court was included as Respondent No. 10. In the Writ Petition various prayers seeking quashing of various Orders including Order dated 7th February, 1996 and Order granting exemption to accused from personal hearing were sought. In this Writ Petition, a reference was made to the Order dated 12th August, 1997 but no prayer was made for setting aside or quashing that order. This Writ Petition came to be disposed off on 15th September, 2000 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itan Magistrate, 30th Court, Ballard Estate, Mumbai which was disposed off by an Order dated 5th July, 2000. This Order reads as follows: 1. Read all the applications referred above and perused the entire record carefully. Before considering the merits of the aforesaid applications, I feel that it would be proper to mention the chequered history of the case. 2. It is seen from the record that the complainant had filed the complaint on 15th May, 1992 against accused Nos.1 to 6. By an order of the court, the matter was found to have referred to the concerned Police authorities for investigation under section 156(iii) of the Cr.P.C. Thereafter, this Court had passed an order dated 28.2.1993 for return of the complaint to the complainant for its proper presentation. The complainant appears to have preferred revision against that order and could succeed in the Revision. The then Court thereafter, issued the process against the accused Nos. 1 to 7 under sections 405, 418, 420, 424, 467 read with Section 34 or 114 of the I.P.C. vide order dated 12.1.1994. The evidence of the complainant before the charge found to have been recorded in peace meal on dated 23.5.1995 and 14.8.1995. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that would amount to review of the order dated 12.8.1997 passed below application dated 18.10.1996 for want of the powers of the Review, though I am convinced, but still I cannot pass any order. Therefore, it is the complainant, who can knock the doors of revisional court challenging the order referred above and can seek the redress. Therefore, for the simple reasons stated above I am constrained not to allow the applications of the complainant so far as reliance of the additional evidence allowed to be placed on record as prayed by the complainant. However, by this order, I direct the accused to remain present before the Court on the dates given, failing which, their bail bonds will be cancelled. Hence, this is the order on the application referred above. 17) It is thus to be seen that a unique procedure appears to have been followed by the Metropolitan Magistrate, 33rd Court. He had allowed cross-examination of 1st Respondent before framing of charges; then even without an application for closing evidence the Magistrate has recorded statement of the accused under Section 313 Cr.P.C.. This Order sets out that the rejection of the 1st Respondent's application, by Order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mine the witness, the learned Magistrate shall proceed to decide the case on merits expeditiously and in any event not later that 31.12.2000. 19) The Appellants then moved an application being Criminal Application No. 3643 of 2000 for recalling the Order dated 19th October, 2000. That application stood disposed off by an Order dated 13th/22nd December, 2000 (which is also one of the impugned Orders). In this Order it has been observed that during the hearing of the Revision Application no objection had been raised as to maintainability on the ground of limitation. The Court holds that Section 362 of the Criminal Procedure Code did not permit the Court to alter or review its earlier order which was a final order. In our view this finding is absolutely correct. It must be mentioned that the Court was convinced that 1st Respondent had played a fraud upon it and therefore issued a show-cause-notice to him to show cause why action should not be taken against him for having played such a fraud. 20) At the time when Criminal Application No. 3643 of 2000 was being heard it came to light that the 1st Respondent had also filed an application for condonation of delay in filing the Crim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd for giving an impression that he only came to know about this order at a later date. The High Court has issued a show-cause-notice against the 1st Respondent which will be considered by the High Court on its own merit. We express no opinion on this aspect. It is also clear that the Appellants did not point out to the High Court, before or during hearing of Criminal Revision Application No. 235 of 2000, the various subsequent orders passed. These were all within their knowledge at time Order dated 19th October, 2000 was passed. We thus see no infirmity in the Order dated 13th/22nd December, 2000 in Criminal Application No. 3643 of 2000. We also see no infirmity in the Order dated 22nd December, 2000 in Criminal Application No. 2645 of 2000 as by the time this application was brought to the notice of the Court it had become infructuous. Thus the Appeal against these two Orders stands dismissed. 25) The question still remains whether, on facts of this case, the direction given in the Order dated 19th October, 2000 can be maintained. In the application there was no prayer to examine Pritika Prabhudesai. The prayer was to quash the proceedings and start trail afresh. There is no p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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