Karnataka High Court
B.R Acharya vs A. Anil Kumar Pai on 4 March, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
R
DATED THIS THE 4 DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.767/2019
BETWEEN:
1. B.R. ACHARYA
S/O LATE VASUDEVACHARYA,
AGED ABOUT 64 YEARS,
R/AT 237, CANARA BANK COLONY,
NAGARABHAVI ROAD, II CROSS,
CHANDRA LAYOUT,
I PHASE, III STAGE,
VIJAYANAGAR,
BENGALURU-560 040. ... PETITIONER
(BY SRI. M.SHASHIDHARA, ADVOCATE)
AND:
1. A. ANIL KUMAR PAI
S/O LATE A.G.PAI,
AGED MAJOR,
R/AT NO.517/41-1,
GEETHANJALI,
7TH MAIN ROAD, 46TH CROSS,
JAYANAGAR V BLOCK,
BENGALURU-560 041. ... RESPONDENT
(BY SRI. PARIKSHITH WARRIER, ADVOCATE FOR
SRI. S. SUSHANT VENKATESH PAI, ADVOCATE)
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THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION DATED 09.04.2019 PASSED BY THE
LV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
IN CRL.A.NO.1155/2014 BY CONFIRMING THE JUDGMENT OF
CONVICTION DATED 25.09.2014 PASSED BY THE IV ADDL.
CHIEF METROPOLITAN MAGISTRATE, BENGALURU IN
C.C.NO.21364/2007 AND ACQUIT THE PETITIONER.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 13.02.2025 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV ORDER
Heard learned counsel for the petitioner and learned
counsel for the respondent.
2. This revision petition is filed against judgment of
conviction and sentence passed against the petitioner in
C.C.No.21364/2007 dated 25.09.2014 for the offence punishable
under Sections 409 and 420 IPC, wherein for the offence under
Section 409 IPC, accused was sentenced to undergo simple
imprisonment for 2 years and to pay fine of Rs.10,000/- and in
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default of payment of fine, to undergo simple imprisonment for
three months as well as confirmation order passed in
Crl.A.No.1155/2014 dated 09.09.2019.
3. The factual matrix of the case of the
respondent/complainant before the Trial Court while invoking
Section 200 and penal provisions of Section 409 of IPC is that
complainant is an Engineer residing permanently at Bangalore.
Accused was introduced to him through one N. Haricharan Babu
during the year 2004. The accused represented that he is an
expert in the trading of stocks, shares and securities and having
license with M/s. Peninsular Capital Market Limited, No.104,
Raheja Plaza, Richmond Road, Bangalore. The accused promised
the complainant that he would transact in the shares and
securities and out of the profit earned, he would deduct 1%
towards his commission. The complainant was impressed by his
representation made by the accused, believed him and entrusted
shares of various companies for trading. The complainant had
entrusted 1000 shares of L&T Company, 200 shares of Reliance
Industries, 300 shares of ICICI Bank. Further, the complainant
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had given cash of Rs.9,00,000/- to the accused for investing in
trading business. The complainant had to part with his shares
and also issued cheques totally valued for Rs.2,55,505/- drawn
in favour of M/s. Peninsular Capital Market Ltd. Till September
2005, the accused was responding to the queries made by the
complainant. Subsequently, from the month of October 2005,
the accused started evading calls of the complainant. The
accused said that his office was raided by Income Tax
Department, the Demat accounts and all the documents were
seized. He was unable to transact the shares and the securities.
Later, the accused started evading, subsequently, the
complainant made enquiries with the Income Tax Authorities and
found that no raid was made on the office of the accused and on
further enquiry, came to know that the accused was neither a
licensed broker nor a member of Banglaore Stock Exchange.
The accused cheated the complainant and misappropriated the
cash of Rs.9,00,000/-, shares worth of Rs.21,10,000/- and also
misappropriated the amount under two cheques to an extent of
Rs.2,25,505/- i.e., totally an amount of Rs.32,65,505/-.
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4. It is also contended that complainant had lost rights
and bonus shares that were accrued to the ICICI and Reliance
Industries shares. It is also the contention that accused was
convicted by the Special Court at Bombay in a prosecution
instituted by the CBI and was sentenced to 3 years of rigorous
imprisonment and fine of Rs.40,000/-. It is also stated that he is
facing trial in C.C.Nos.4487/2002, 4536/2002 and 4486/2002 on
the file of II ACMM, Bangalore. Hence, prayed the Court to take
cognizance and punish him accordingly. Initially, the matter was
referred to the police, who in turn had filed 'B' report and the
same was challenged. Subsequently, the complainant examined
the witnesses and produced the documents. Thereafter, the
Court took cognizance, issued summons and the accused was
secured and he did not plead guilty and claimed for trial.
5. In order to prove the case of the complainant, he
examined himself as P.W.1 and examined three witnesses as
P.Ws.2 to 4 and got marked the documents as Exs.P1 to P29.
The accused was subjected to 313 statement to explain the
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incriminating evidence and he did not choose to lead any
defence evidence.
6. The Trial Court having considered both oral and
documentary evidence placed on record, particularly the
evidence of P.Ws.1 to 4, comes to the conclusion that the
complainant had proved the case against the petitioner and
mainly relied upon Ex.P28, the certified extract of trading details
and statement of account produced as Ex.P29 and these
documents for the relevant year are produced by P.W.4.
7. The complainant has produced documentary
evidence Exs.P1 to P29. Ex.P1 is the certified copy of the
passbook of one Ramita A. Pai/Anil Kumar Pai A. Ex.P2 is the
relevant portion of the said passbook that reveals that an
amount of Rs.50,000/- was credited to the accused. Ex.P3 is the
certified copy of passbook of the complainant. Ex.P4 is the
relevant portion of the passbook that reveals that Cheque for
Rs.2,00,000/- was drawn in favour of Peninsular. Ex.P5 is the
certified copy of the same passbook that reveals an amount of
Rs.42,000/- and Rs.72,000/- was drawn in favour of the
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accused. Exs.P6, P7, P8 and P9 are the certified copies of the
passbook of one Venkatesh Pai and Namrata Pai. Ex.P10 is the
certified copy of the passbook of the complainant. Ex.P11 is the
certified copy of the relevant extract of the passbook. Ex.P12 is
the certified copy of the passbook of one Ramita A. Pai. and Anil
Kumar Pai. Exs.P13 to P16 are the relevant portion of the said
passbook that reveals that on several dates, amount was given
to the accused. Ex.P17 is the statement issued by the National
Securities Depository Limited that reveals that 300 shares of
ICICI Bank was purchased. Ex.P18 is the same extract that
reveals the beneficiary of the said purchaser of 150 shares of
Reliance Industries is Peninsular Capital Market Limited. Ex.P19
is the statement of the complainant issued by the National
Securities Depository Limited. Ex.P20 reveals that 700 shares of
L&T were debited from the account of the complainant. Ex.P21
also reveals 50 shares were debited from the account of the
complainant. Exs.P22 and P23 are statements pertaining to the
said transaction. The Trial Court also taken note of Ex.P24 issued
by National Securities Depository Limited which reveals that 300
shares of L&T were debited on 19.04.2005. Ex.P25 is the
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continuation of the same statement. Ex.P26 is the statement of
the complainant dated 01.01.2005 to 31.12.2006, wherein the
shares in the account of the complainant is shown as 400.
Ex.P27 is the copy of the Bank challan. Ex.P28 is the statement
of the accused issued by Peninsular Capital Market Limited.
Ex.P29 is another statement of account issued by Peninsular
Capital Market Limited.
8. The Trial Court having considered these documents
comes to the conclusion that complainant had shares in his
account and subsequently, shares were transferred to the
account of other persons. The Trial Court also comes to the
conclusion that it is the case of the complainant that accused
had represented before the complainant that he was an expert
stock trade broker. The Trial Court also taken note of defence
set up that the accused has not represented in the said manner
and the complainant had transaction with one Mr. Haricharan
Babu and as he expired, the complainant has filed this case
against the accused seeking for recovery of the said amount.
The Trial Court taken note of these material on record, comes to
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the conclusion that ingredients of Section 420 IPC is not proved,
but Section 409 IPC clearly disclose entrustment of the property
is by lawful means, subsequently the said property is
misappropriated and not found any dishonest intention and it
was only criminal breach of trust and complainant has proved
entrustment. Hence, answered point No.1 as 'affirmative and
point No.2 as 'negative'.
9. Being aggrieved by the judgment of conviction and
sentence of two years and imposition of fine of Rs.10,000/-, an
appeal is filed before the First Appellate Court in Criminal Appeal
No.1155/2014. The First Appellate Court on re-appreciation of
material on record, taking note of both oral and documentary
evidence placed on record, regarding trading business is
concerned i.e., evidence of P.Ws.1 to 4 and Exs.P1 to P29,
comes to the conclusion that complainant establishes that
accused misused the respondent-shares and Company Manager,
who has been examined as P.W.4 deposed that accused was
never working with their company and he was not their business
associate and also taking note of the fact that shares were
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transferred to other account of other persons, comes to the
conclusion that no grounds to interfere with the findings of the
Trial Court. Being aggrieved by the conviction and sentence, the
present revision petition is filed before this Court.
10. The main contention of learned counsel for the
petitioner for the first time before this Court is that very
initiation of private complaint is erroneous and the same is
without jurisdiction. It is contended that P.Ws.2 and 3, who have
been examined have not been cited as witnesses in the list of
witnesses. It is also contended that learned trial Judge comes to
the conclusion that accused has failed to substantiate his
defence and the First Appellate Court also comes to the
conclusion that there is no error committed by the Trial Court
and it is nothing but improvement and documents produced as
exhibits are obtained at a belated stage which do not connect
this petitioner. The respondent did not produce these documents
before the Investigating Officer and later filed the same and
P.W.4 says that petitioner did not had any account with
Peninsular Capital Market Limited. Further, he states that
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petitioner was bringing the customers which the witness could
not say because he was not working at the relevant point of
time. Further, the witness admits to the fact that he was not an
employee in PCML at the time of the transaction relating to this
case and not produced any document with regard to transaction
which allegedly took place between the appellant and the
respondent. It is contended that P.W.4 was not working at the
relevant point of transaction and the very approach of both the
Trial Court and the First Appellate Court is erroneous.
11. Learned counsel for the petitioner in his argument
would vehemently contend that petitioner was working in the
Company and no material is placed to prove the allegation made
against the petitioner and he is an employee of a Stock Broker
Office and the transaction is also made through Peninsular
Capital Market Limited. Learned counsel would vehemently
contend that transaction was made through Demat account and
300 shares were transferred. When such being the case, it
attracts the Securities and Exchange Board of India Act, 1992
('the SEBI Act' for short) and not IPC offences. The fact that two
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cheques were given and the same is realized in the name of the
Company and not in the name of the accused is not in dispute.
When such being the case, it attracts SEBI Act and not IPC
offence, since transaction is made through Demat account and
the Trial Court ought to have invoked SEBI Act that too before
the Special Court and not before this Court.
12. Learned counsel for the petitioner in support of his
argument, relied upon the judgment in JITENDRA KUMAR
KESHWANI VS. STATE OF U.P. AND ANOTHER reported in
2024 SCC ONLINE ALL 5512, wherein discussion was made
with regard to Sections 409 and 420 IPC and brought to notice
of this Court paragraph No.16, wherein discussion was made
with regard to Section 15F of SEBI Act-penalty for default in case
of stock brokers and also brought to notice of this Court
paragraph No.18, wherein extracted Section 26 of SEBI Act and
contend that no Court shall take cognizance of any offence
punishable under this Act or any rules or regulations made
thereunder, save on a complaint made by the Board and the
SEBI Act is a Special Act which shall prevail over the general Act,
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such as I.P.C. or Cr.P.C. It is settled position of law that once a
special Act hold the field, the provisions of general law would not
apply and only the prosecution can be lodged in accordance with
the provisions of such special law and the provisions of Section
26 of the SEBI Act, specifically. Learned counsel would
vehemently contend that in this judgment, the Allahabad High
Court allowed the petition filed under Section 482 Cr.P.C. and
quashed entire proceedings of taking cognizance and liberty was
given to approach the authorities under the SEBI for redressal of
his grievance. Learned counsel would contend that when SEBI
Act attracts, the Trial Court ought not to have taken cognizance.
13. Per contra, learned counsel for the respondent would
vehemently contend that first of all, there is no license and the
accused has not led any defence evidence raising this issue
before the Trial Court as well as the First Appellate Court. But,
P.W.4-Company Manager deposed before the Trial Court that
this petitioner is not an employee. When such specific defence is
taken, the petitioner ought to have placed evidence before the
Court that he is an employee. Apart from that entrustment is
14
proved and the fact of entrustment and the case of the
complainant is not disproved by the accused. Learned counsel
would vehemently contend that petitioner is not a registered
stock broker under Sections 12(1) and brought to notice of this
Court that Sections 15C, 15F and 26 of SEBI Act does not
attract, since the petitioner is not a registered stock broker.
14. Learned counsel also relied upon the judgment of
this Court in JAYAMMA VS. JAYAMMA reported in ILR 2023
KARNATAKA 1037 and brought to notice of this Court
paragraph Nos.40, 41 and 42, wherein it is held that it is settled
law that in exercise of revision jurisdiction under Section 397
Cr.P.C., the High Court, does not in the absence of perversity,
interfere in the concurrent factual findings. It is not for the
Revisional Court to analyze and re-appreciate the evidence on
record and exercise its jurisdiction for the limited extent, when it
is found that order under revision suffers from glaring illegality
or has caused miscarriage of justice, when it is found that Trial
Court has no jurisdiction to try the case, when the Trial Court
has illegally shut out the evidence which otherwise ought to have
15
been considered and where material evidence clinches the issue
has been overlooked. Learned counsel referring this judgment
would contend that no such circumstance is warranted in the
case on hand and it does not require interference.
15. Having heard learned counsel for the petitioner,
learned counsel for the respondent and also on perusal of the
material on record and also the principles laid down in the
judgments referred by both the counsel, the points that would
arise for consideration of this Court are:
(i) Whether the Trial Court committed an error in
convicting and sentencing the petitioner for the
offence punishable under Section 409 IPC and
First Appellate Court committed an error in
confirming the same and whether this Court
can exercise revisional jurisdiction on the
ground that order impugned suffers from its
legality and correctness?
(ii) What order?
Point No.(i)
16. Having heard respective counsel and also principles
laid down in the judgments referred by learned counsel for
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petitioner and learned counsel for the respondent, no doubt in
the judgment referred by learned counsel for the petitioner in
JITENDRA KUMAR KESHWANI's case, the Allahabad High
Court discussed Sections 409, 420 IPC as well as Section 26 of
SEBI Act that no Court shall take cognizance of any offence
punishable under this Act or any rules or regulations made
thereunder, save on a complaint made by the Board, this ground
was urged before this Court for the first time and such defence
was not taken before the Trial Court as well as the First
Appellate Court. In the case on hand, whether SEBI Act attracts,
general law or IPC offence is the question to be considered in
view of the contention taken by the petitioner.
17. This Court would like to make a mention in brief the
complaint averments and it is the specific case that this
petitioner was introduced to the complainant through one
Sri Haricharan Babu. It is also the defence of petitioner that
complainant had transacted with Sri Haricharan Babu and
because he passed away, he filed the complaint against this
petitioner, in order to recover the amount. The complainant
17
examined himself as P.W.1 and examined three witnesses as
P.Ws.2 to 4. The material witness is P.W.1-complainant, who
entrusted the shares and made payment of money and also gave
cheques in favour of the petitioner. To that effect, the
complainant relied upon documents of Exs.P1 to P29 with regard
to the transaction with the petitioner and debiting of shares.
The case of the complainant is also that he had entrusted shares
and also made payment in favour of the petitioner. These
documents have not been denied by the respondent during the
course of cross-examination. It is not his case that he never
transacted with the accused. But, the documentary evidence is
otherwise against him.
18. The accused was also examined under Section 313
Cr.P.C., he did not deny the same and says that he does not
know about enquiry made to the Income Tax Authorities
regarding conducting of raid and also the fact that he was not a
authorized member of Stock Exchange and he had no license to
act as a share broker. He also says that he never claimed that
he is a license holder to act as a share broker and also regarding
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realizing of the amount through Cheque also, he says that he
does not know, but not specifically denied the same, when
incriminating evidence was put to him. The fact that he was
convicted by the Special Court at Bombay in a prosecution
instituted by the CBI and was sentenced to 3 years of rigorous
imprisonment and fine of Rs.40,000/- is not disputed by him.
But he says that, he approached the Apex Court and also with
regard to the transaction and transferring of share to
A.P. Nageshwar Rao and Anil Pai's account, he did not deny the
same, but he says that he does not know.
19. P.W.1 also categorically says that he knows the
petitioner and he was his business associate and to that
incriminating evidence also, he says he does not know and also
for the incriminating evidence that he had given cheques in the
name of their company on behalf of Anil Pai also, he totally
denies the same and for having drawn the amount through the
cheque to the tune of Rs.55,505/- and misappropriating the
amount of Rs.2,55,505/-, he says that he did not draw the said
amount. But nothing is elicited in the evidence and incriminating
19
evidence put to him and also did not choose to lead any defence
evidence. With regard to the merits also, learned counsel for the
petitioner would contend that very entertaining of the complaint
is erroneous and brought to notice of this Court relevant
paragraphs of judgment of the Apex Court in JITENDRA
KUMAR KESHWANI's case of Allahabad High Court. Having
considered the same, it is not in dispute that complainant
entrusted Share Certificate in favour of the accused and the
same was transferred to the other account is not in dispute. For
having made the payment of Rs.9,00,000/- also, nothing is
elicited, though documents are produced before the Court
regarding realization of the Cheques is concerned. Hence, on
merits, I do not find any error committed by the Trial Court in
considering the material on record.
20. Learned counsel for the petitioner brought to notice
of this Court Section 15F of SEBI Act and so also Section 26 of
SEBI Act which reads as hereunder:
15F. Penalty for default in case of stock
brokers.- If any person, who is registered as a
stock broker under this Act,--
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(a) fails to issue contract notes in the form and
manner specified by the stock exchange of which
such broker is a member, he shall be liable to [a
penalty which shall not be less than one lakh
rupees but which may extend to] [one crore
repees] for which the contract note was required to
be issued by that broker;
(b) fails to deliver any security or fails to make
payment of the amount due to the investor in the
manner within the period specified in the
regulations, he shall be liable to [a penalty [which
shall not be less than one lakh rupees but which
may extend to one lakh rupees for each day during
which [such failure continues] subject to a
maximum of one crore rupees];
(c) charges an amount of brokerage which is in
excess of the brokerage specified in the
regulations, he shall be liable to [a penalty [which
shall not be less than one lakh rupees but which
may extend to five times the amount of
brokerage]] charged in excess of the specified
brokerage, whichever is higher
26. Cognizance of offences by courts. -
(1) No court shall take cognizance of any offence
punishable under this Act or any rules or
21
regulations made thereunder, save on a complaint
made by the Board.
21. Learned counsel for the respondent/complainant also
relied upon Sections 12(1) and 15C of SEBI Act, which reads as
hereunder:
12. Registration of stock-brokers, sub-
brokers, share transfer agents, etc. - (1) No
stock broker, sub-broker, share transfer agent,
banker to an issue, trustee of trust deed, registrar
to an issue, merchant banker, underwriter,
portfolio manager, investment adviser and such
other intermediary who may be associated with
securities market shall buy, sell or deal in
securities except under, and in accordance with,
the conditions of a certificate of registration
obtained from the Board in accordance with the
[regulations] made under this Act:
Provided that a person buying or selling
securities or otherwise dealing with the securities
market as a stock broker, sub-broker, share
transfer agent, banker to an issue, trustee of trust
deed, registrar to an issue, merchant banker,
underwriter, portfolio manager, investment adviser
and such other intermediary who may be
22
associated with securities market immediately
before the establishment of the Board for which no
registration certificate was necessary prior to such
establishment, may continue to do so for a period
of three months from such establishment or, if he
has made an application for such registration
within the said period of three months,till the
disposal of such application:
[Provided further that any certificate of
registration, obtained immediately before the
commencement of the Securities Laws
(Amendment) Act, 1995, shall be deemed to have
been obtained from the Board in accordance with
the regulations providing for such registration.]
15C. Penalty for failure to redress
investors' grievances. - If any listed company or
any person who is registered as an intermediary,
after having been called upon by the Board in
writing, [including by any means of electronic
communication], to redress the grievances of
investors, fails to redress such grievances within
the time specified by the Board, such company or
intermediary shall be liable to a penalty [which
shall not be less than one lakh rupees but which
may extend to one lakh rupees for each day during
23
which such failure continues subject to a maximum
of one crore rupees].
22. Having considered proviso to Section 12(1) of the
SEBI Act, it is clear that petitioner is neither a licensee nor is
holding any certificate. In the evidence he says that he does not
know anything whether the petitioner is a authorized licensee or
having any certificate. Hence, there is a force in the contention
of learned counsel for respondent that in view of Section 12 of
SEBI Act, the Trial Court has jurisdiction to entertain the same
and allegation made in the complaint attracts SEBI Act cannot be
accepted. The proviso to Section 15F of SEBI Act which has been
relied upon by learned counsel for the petitioner i.e., penalty for
default in case of stock brokers also does not apply in view of
the fact that petitioner is not a licensee and he is not having any
certificate. Hence, invoking Section 15F of SEBI Act as
contended by learned counsel for the petitioner does not arise, in
view of Section 12 of SEBI Act.
23. Learned counsel for the respondent also brought to
notice of this Court Section 15C of SEBI Act with regard to
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penalty for failure to redress investors' grievances. No doubt,
Section 26 of SEBI Act discloses with regard to the fact that
Court is not having any jurisdiction to entertain or take
cognizance as regards the offences of SEBI Act, no dispute with
regard to Section 26 is concerned and the very contention of the
learned counsel for the petitioner is that Court cannot take
cognizance cannot be accepted. But, in the case on hand, in
order to invoke provisions of SEBI Act, first of all, there is no
registration and the petitioner is not having any license, but if
the offence attracts SEBI Act, then no jurisdiction to other Court
to invoke general law. But, no such circumstance is warranted
in the case on hand. The very contention of learned counsel for
the petitioner is that transaction has taken place through Demat
account and mere transfer of amount through Demat account
and the contention that it comes within SEBI Act cannot be
accepted, unless he is a registered stock broker and holds any
license. In 313 statement also, when suggestion was put to him,
when there was incriminating evidence that he was not having
any license, he has given the answer that he does not know and
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also not placed any document that he was having license as well
as working in any of stock exchange.
24. P.W.4-Company Manager categorically says that he
was not an employee and when such incriminating evidence is
placed against him, he did not lead any defence evidence before
the Court and the petitioner has not chosen to lead evidence,
when voluminous documents of Exs.P1 to P29 are produced
before the Trial Court and the same is considered by the Trial
Court in detail in paragraph Nos.21 and 22 and each and every
documents are taken note of by the Trial Court. The document of
Ex.P20 reveals that 700 shares of L&T were debited from the
account of the complainant and Ex.21 reveals that 50 shares
were debited from the account of the complainant and Exs.P22
and P23 are the statement and each and every documents are
discussed by the Trial Court in paragraph Nos.15 to 20 and
particularly, taken note of evidence of P.W.4 and Ex.P28, the
certified extract of trading details and statement of account is
also produced as Ex.P29 and the petitioner had given
instructions to the company to adjust the said amount towards
26
his debit account. When all these materials are considered by
Trial Court, the First Appellate Court also in short considered the
material, particularly in paragraph No.11 and relied upon both
oral and documentary evidence placed on record and comes to
the conclusion that documentary evidence clearly establishes
that the petitioner misused the respondent shares and the
P.W.4-Company Manager deposed that accused was never
working with the company and he was not their business
associate. The documentary evidence discloses that the
respondent had shares in his account and subsequently, the said
shares were transferred to other account of other person and
amount also credited to the account of the petitioner and comes
to the conclusion that accused misappropriated the amount
when entrustment was made to him. Having considered the
material on record, I do not find any error committed by the
Trial Court and the First Appellate Court in invoking Section 409
IPC and the very contention that Trial Court committed error in
taking cognizance cannot be accepted when SEBI Act does not
attract having considered the factual aspects of the case.
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25. This Court also would like to rely upon the order of
Madhya Pradesh High Court in PINKI KELWA AND OTHERS
VS. THE STATE OF MADHYA PRADESH AND ANOTHER in
CRIMINAL REVISION NO.3600 OF 2021 dated 12.03.2024,
wherein at paragraph No.13, it is observed that it is not a case
where a fraud has been played by the petitioners and without
obtaining any permission from SEBI and other authorities,
advisory company has been opened, in which case, the
provisions of the Indian Penal Code could have been attracted.
However, looking to the permissions already on record obtained
by the petitioners, this Court has no hesitation to come to a
conclusion that no case under Sections 420, 409 of the I.P.C.,
1860 and Section 6(1) of the Adhiniyam, 2000 can be said to be
made as the entire proceeding was initiated with malafide
intentions by the complainant.
26. The main contention of learned counsel for the
petitioner/accused is that complainant had transacted with
Sri Haricharan Babu and when he passed away, he filed case
against him and to prove the said defence also, nothing is placed
28
before the Court and in the absence of cogent evidence, the said
contention cannot be accepted. Hence, it is not a fit case to
invoke revisional jurisdiction and I do not find any perversity in
the finding of the Trial Court and the First Appellate Court. In the
judgment of the Co-ordinate Bench of this Court referred by
learned counsel for the respondent in JAYAMMA's case, this
Court in paragraph No.42, this Court observed that exercising
revisional jurisdiction is limited to the exceptional cases, when it
is found that order under revision suffers from glaring illegality
or has caused miscarriage of justice, when it is found that Trial
Court has no jurisdiction to try the case, when the Trial Court
has illegally shut out the evidence which otherwise ought to have
been considered and where material evidence clinches the issue
has been overlooked and in such circumstance, the Court can
exercise the revisional jurisdiction or otherwise, the Court cannot
and such circumstance is not warranted in the case on hand to
exercise the revisional jurisdiction. Hence, I answer point No.(i)
in 'negative'.
29
Point No.(ii)
27. In view of the discussion made above, I pass the
following:
ORDER
The criminal revision petition is dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
ST
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