Final Order 1

Order Details: Order Below EX 1
Pdf Text: IN THE COURT OF THE METROPOLITAN MAGISTRATE,
71ST COURT, BANDRA, MUMBAI.
ORDER IN C. C. NO. 190/MISC./2023
ORDER BELOW EXH.1
The complainant Mr. Sapan Shrivastava has filed the present
complaint under section 420, 120 (B), 467, 468, 406, 409 etc. I.P.C. r/w
Sec. 15 HA of the Securities and Exchange Board of India Act, 1992.
According to complainant accused No.1 to No.4 are office bearers of
Trident Ltd. formerly Abhishek Industries Ltd. accused No.5 to No.8 are the
officers of NSE and BSE, accused No.9 to No.11 are public servants. It is
contended that, accused No.1 to No.4 without following the regulation and
circular issued by the SEBI illegally issued IPO and gathered money from
public at large and deceived them.
2. It is further contended that, despite of brought to the notice of
said offence to accused No.5 to No.8 have not taken any action nor the
officers of government have taken action against accused. Further, it is
contended that, accused have indulged in fradulant and unfair trade
practice relating to the security and they are liable for punishment, as per
section 15 HA of the SEBI Act.
3. The complainant in person before the court argued that, the
complainant not also deceived the public at large but to the government
and despite of bring the said commission of offence to the concerned
officers no action have been taken by them, against accused No.1 to No.4.
Therefore he constrained to file the complaint. He further submits that, the
offence is cognizable. The complaint and documents placed on record
shows that, accused have committed cognizable offence. Further, despite
of made complaint to the police no F.I.R. has been registered. He further
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C. C. NO. 190/MISC./2023 … 2 … ORDER BELOW EXH.1
submits that, the offence is white collar offence required detail
investigation by police and prayed that the complaint be sent to the police
for investigation under section 156 (3) of the Code of Criminal Procedure.
4. He also relied on the various citations of which reference have
been made in the complaint. To sum and substance of the said citations is
that, if the complaint discloses the commission of cognizance offence then
the police ought to have registered the F.I.R. Further, those are relating to
that if the complaint discloses to the Magistrate regarding commission of
cognizable offence and despite of the complaint made to police the police
have not registered the F.I.R. In that case the Magistrate can issue direction
to send the matter for investigation under section 156 (3) of the Code of
Criminal Procedure.
5. Lastly, complainant Mr. Sapan Shrivastava prayed that,
complaint be sent to police for further investigation under section 156 (3)
of Code of Criminal Procedure.
6. Section 15 HA of SEBI Act, provides penalty for fradulant and
unfair trade practices. Section 26 of the Act provides that, no court shall
take cognizance of any offence punishable under this act or any rules or
regulations made there under, save on a complaint made by the Board.
7. Section 26 (B) of the Act provides that, notwithstanding
anything contend in the Cr. P. C. all offences under this Act committed prior
to the date of commencement of Securities Laws (Amendment) Act, 2014
or on or after the date of such commencement shall be taken cognizance
and tried by the special court established for the are in which the offences
committed or where there are more special court than one for such area by
such one of them as may be specified in these behalf by the Hon’ble High
Court concerned.
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C. C. NO. 190/MISC./2023 … 3 … ORDER BELOW EXH.1
8. According to the complainant the accused No.1 to No.4
without following the circular dated 18/06/1992 issued the IPO and
gathered money from public, which is anoffence as per the provision of 15
HA of SEBI Act. HOWEVER, section 26 of the Act provide that,the Court
can not take cognizance of the offences except complaint made by the
Board. The complainant in his complaint has not stated that, he is
authorized person from the Board.
9. Section 26 B of the Act provides that, the cognizance of the
offences under SEBI Act can only be taken by the Special Court. Clause 3
of Section 26 A provides that, person shall not be qualified for
appointement of judge of Special Court unless he is immediately before
such appointment, holding the office of Sessions Judge or an Additional
Sessions Judge as the case may be. Therefore, by combing reading of
section 26, 26 A and section 26 B it reveals that, the cognizance of the
alleged offence in complaint can be taken only by the Special Courts.
Therefore, this court cannot take the cognizance of the offence, as alleged
in the complaint. Further, in such circumstances I am of opinion that, the
prayer for investigating the matter under section 156 (3) of the Cr. P. C.
cannot be issued. Hence, I am of opinion that, the complaint needs to be
returned to the complainant to file the same in appropriate court of having
jurisdiction. Hence, I proceed to pass following order.
ORDER
1. The complaint be returned to the complainant to file the same
in appropriate court of having jurisdiction, as per the provision
of section 201 of the Code of Criminal Procedure.
Place : Bandra, Mumbai.
Date: 17/01/2024.
SRD.
Sd/-
Metropolitan Magistrate,
71st Court, Bandra, Mumbai
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