D.G.R.PATNAIK, J. - (1.) THE petitioner has prayed for grant of anticipatory bail stating that he reasonably apprehends his arrest for non -bailable offence under Sections 409, 420 and 120 -B of the Indian Penal Code in connection with a case registered against him on the basis of a complaint vide P.C.R. No. 83 of 2008 (T.R. No. 845 of 2008), presently pending before the Court of Ist Class Judicial Magistrate, Dumka
(2.) THE allegation in the complaint, as filed by the complainant who is an advocate by profession, that he being a habitual speculator in future share trading segment in NSE, has his business dealings with M/s. Asit C. Mehta Investment Intermediate Ltd. Bombay (Accused No. 1) through his computer installed in his office. The accused No. 5(the present petitioner), had approached the complainant and by representations that the accused No. 1 is a registered member of stock exchange as a stock broker and representing himself to be a sub -broker under the accused No. 1, had Induced the complainant to get himself registered with the accused No. 4 namely M/s. Mangalam Securities, located at Zila School Road, Dumka, an associate of accused No. l and on assurance that the complaint would secure profits by way of investment in shares and securities, the accused persons entered into a tripartite agreement at Dumka with the complainant, on the undertaking that they would provide stock broking services to the complainant for transactions of shares with stock exchange. Pursuant to the agreement, the complainant got himself registered under the accused No. 4 at Dumka and he was provided with a client I.D. Code No. 116526 for the purpose of future segments and a DMAT account was also opened in favour of the complainant at the instance of the accused No. 1 under a specified group code of the accused No. 4. The complainant invested his money by purchasing some shares in the cash segment which was kept in the DMAT account of the complainant. On being induced by the accused persons, the complainant also invested in the future segment on the assurance that they would keep the complainant informed about the payment schedule and about the requirement of the complainant to pay any margin money, if such occasion to pay margin money arises. Furthermore, on the inducement of the accused persons, the complainant had entrusted some shares of the cash segment to accused No. l as security on the assurance given by them that the security shall be kept in a separate account and shall not be used by the accused persons. The investment on shares made by the complainant in the cash segment, comprising shares of different companies, was to the extent of Rs. 21 lacs. On the basis of the instruction slip dated 14.6.2007 delivered by the complainant to the accused No. 5 (petitioner herein), the above mentioned shares were transferred from the DMAT account of the complainant to the account of accused No. 1 on 22.12.2007. It is alleged that on 23.1.2008, the accused persons, in furtherance of the conspiracy hatched out between them, and without providing any prior opportunity and without assigning any reasons and with an intent to make dishonest and wrongful gain for themselves, sold out all the future segment shares lying in the complainant's account over which they had control and custody, causing heavy damage and loss to the complainant to the extent of Rs. 6,51,123/ -. Furthermore, the accused persons dishonestly sold the entire security shares of the complainant on 13.2.2008 and misappropriated the entire sale proceeds worth Rs. 1,75,611/ -. Learned Counsel for the petitioner submits at the outset that even on the basis of allegations in the entire complaint petition read with statement of witnesses recorded on solemn affirmation, no offence whatsoever is made out against the petitioner. Learned Counsel explains that admittedly the petitioner was a sub -broker under the main broker that is the accused No. 1, of which the accused Nos. 2 and 3 are the directors and the petitioner were merely their agent. Learned Counsel would explain that under the agreement between the complainant and the principal accused and in accordance the rules of speculation trading, the complainant had given the authority to the principal share broker to invest the shares of the complainant is speculating trading but on account of sudden fall in the market price of the shares, the value of the shares had drastically declined and within one week, the total value of the shares fell down by Rs. 6 lacs. As per terms of agreement, the margin money being the depreciation in the value of the shares was to be deposited by the complainant, but inspite of repeated demands, he had failed to make the deposits and consequently under the directions of the NSE, the security which was deposited in the DMAT account, had to be sold and the loss in business had therefore, to be borne exclusively by the complainant. Learned Counsel submits further that the entire transaction relating to the purchase and sale of the shares of the complainant was done exclusively by the accused No. 1, being the principal share broker and the petitioner being the sub -broker, had no role to play at all in any of the transactions except the fact that he being the sub -broker, had merely introduced the complainant to the principal stock broker namely the accused No. 2 and accused No. 4 who are the representatives of the accused No. 1. Learned Counsel for the complainant, on the other hand, along with counsel for the State strongly opposes the prayer for anticipatory bail and submits that the petitioner cannot evade his liability on the ground that he was merely a sub -broker. As a matter of fact, the petitioner being the agent of the principal share broker and being one of the persons who had certified the terms and conditions of the tripartite agreement between the stock broker, sub -broker and the complainant, is also guilty of the offence since he too had connived in the surreptitious sale of the shares and securities of the complainant made even without prior in information given to him at all.
(3.) IN the facts and circumstances of the case even as admitted by the complainant not only in the petition of complaint, but also in his statement recorded on solemn affirmation and also in the statement of his witnesses, it is indicated that it was the accused No. 1 through accused No. 2 to whom the complainant had entrusted his shares and securities and the entire transactions of purchase and sale of the shares and securities of the complainant was done by the accused No. 1 represented by his directors (accused Nos. 2 and 3), through the accused No. 4. The petitioner in his capacity of a sub -broker under the accused No. 1 had merely introduced the complainant with the principal broker and the petitioner had not indulged in any of these transactions relating to the sale of the complainant's shares nor is it indicated that he derived any wrongful gain for himself any of the transactions.;