S.B.MAJMUDAR - (1.) LEAVE granted.
(2.) WE have heard learned counsel for the parties. The short question involved in this appeal is as to whether the Special Court, functioning under the provisions of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 (hereinafter referred to as 'the Act'), has jurisdiction to entertain and try the criminal case filed by respondent-complainant against the appellant-accused. The Special Court consisting of learned single Judge of the High Court of Bombay has held that the proceedings are within its jurisdiction. The appellant-accused has challenged the said decision in the present appeal. A few introductory facts leading to these proceedings are required to be noted at the outset. Background Facts The respondent-complainant is the uncle and the appellant-accused is his nephew. It is the case of the respondent-complainant who is aged about 85 years that he is an architect by profession. That accused is the son of his brother, that is, his nephew. He filed a criminal complaint under Section 409 of the Indian Penal Code ('IPC' for short). We will refer to the respondent as the complainant and the appellant as the accused in the latter part of this judgment. The complainant's case is that he and his daughter Ms. Feroza Parvez Driver held shares numbering 1200 of Great Eastern Shipping Company Limited. The complainant has no son and the accused being his nephew and close relative, he handed over the shares with transfer forms to the accused for arranging the sale thereof through reliable broker and to pay the sale proceeds to the complainant. This was done somewhere in the month of December, 1991. It is the case of the complainant that he signed and executed various transfer forms, so also his said daughter Ms. Feroza to facilitate the transfer thereof in the name of prospective buyer. The complainant further proceeds to state that he expected the accused to pay him the sale proceeds of the said shares in due course. However, for quite a long time there was no response from the accused. The complainant on various occasions made enquiries with the accused about the sale of the said shares. However, the accused, according to the complainant, put off and shirked the matter saying that the time was not opportune for the sale of the shares. Thereafter, the accused began to avoid the complainant. The complainant, therefore, felt that something was amiss and enquired with M/s. Tata Consultancy Services who were Share Registrars of M/s. Great Eastern Shipping Co. Ltd. about the shares and on 2/01/1993 the complainant was replied that the shares in question were already sold out. The complainant also came to know the name of the sub-broker through whom the said shares were sold, i.e., Mr. Paresh B. Patel who was originally named as accused No. 2 in the complaint. The complainant then made enquiry with the said sub-broker and from him he came to know that the accused had already arranged the sale of the said shares. The complainant thereafter enquired with the accused and confronted him with the information which the complainant had gathered. The accused also executed certain writings admitting the receipt of the shares from the complainant, sale thereof, etc. He also promised to pay the sale proceeds to the complainant. However, he did not do so.
(3.) IT is in these circumstances that the complainant has filed this complaint with a case that the accused had committed offence of criminal breach of trust and dishonest misappropriation of the securities. The complaint was filed by the complainant before the Special Court both against the appellant as well as accused No. 2 Paresh B. Patel. However no charge is framed by the Special Court against accused No. 2. Hence he is out of picture. The complaint, therefore, survives only against the present appellant, accused No. 1 who is now the sole accused. IT may be noted that the complaint was filed by the respondent-complainant on 13/04/1994 before the Special Court for the aforesaid alleged offence. The said case was registered as Special Case No. 1 of 1995. The Special Court issued summons to the appellant and framed charge against the appellant as under : "CHARGE I, Justice M. S. Rane, Judge, Special Court, Mumbai, do hereby charge you, Minoo Mehta, the accused herein, as under : That in or about December, 1991 securities viz., distinctive number of 1200 shares of Great Eastern Shipping Co. Ltd., belonging to the complainant Shavak D. Mehta and his daughter Ms. Feroza P. Driver, as per particulars mentioned hereinbelow i.e. JUDGEMENT_418_2_1998Html1.htm were entrusted by him to you for selling the same on his behalf and paying the proceeds of the sale of those shares to him which shares you did sell in January, 1992 and did dishonestly mis-appropriate and convert the sale proceeds of the sale amounting to Rs. 1,10,000.00 to your own use and you did thereby commit the offence of criminal breach of trust in relation to the said transaction in the said securities punishable under Sec. 406 of Indian Penal Code and within my cognizance and I, therefore, direct that you be tried for the said offence." The accused moved an application No. 240 of 1997 in the said case before the Special Judge and contended that the Special Court had no jurisdiction to try the alleged offence against the appellant. The learned Special Judge after hearing the parties concerned held by his order dated 10/07/1997 that the complaint as filed by the complainant was maintainable before the Special Court and he had jurisdiction to try the appellant for the offence with which he was charged. It is this order of the Special Court which is brought on the anvil of scrutiny of this Court in the present appeal. Statutory Scheme ;