Judgment

SHELAT, J.:- (on behalf of himself and Dua J.): These two appeals, by special leave, arise out of two complaints, both of which were filed in respect of the same transaction and are therefore disposed of by a common judgment.

2. Appeal No. 214 of 1968 is against the judgment of the High Court of Calcutta dismissing the complaint filed by the appellant on January 5, 1996 under Sections 120B, 406 and 420 of the Penal Code against respondents 2 to 5, who are the directors and the secretary of M/s. Turner Morrison & Co. Ltd. (hereinafter referred to as the company).

3. The case of the appellant in the said complaint may be stated as follows :

4. At the material time, the appellant, one S. Verma and Frank Goldstein were the liquidators of Hungerford. Investment Trust Ltd. (in voluntary liquidation) (hereinafter referred to as Hungerford). At all material times Hungerford was the registered owner of 51 of the shares of the company and as such was ordinarily entitled to have the control and management of that company. These 51 of the shares numbered 2295 were of the face value of Rs. 1,000/- each. Out of these, 707 shares were in possession of the company.

5. Respondent 5, Haridas Mundra, owned the balance of 49 shares. In or about 1961, Hungerford agreed to sell and Mundra agreed to purchase the said 51 shares. Mundra filed a suit being Suit No. 600 of 1961 against Hungerford in the High Court of Calcutta for specific performance of the said agreement. The High Court decreed the suit directing Hungerford to deliver the said 2295 shares against payment of Rs. 86 lacs and odd and issued, until delivery of the said shares was made to Mundra, an injunction restraining Hungerford from exercising its rights as holders of those 51 shares. The curious result of the said injunction was that Mundra could get control and management of the company with the 49 shares held by him without having to pay the price of the said 51 shares, until Hungerford gave delivery of all those 2295 shares, out of which, as aforesaid, 707 shares were in the custody of the company. The problem for Hungerford was how to get back those 707 shares from the company so as to be able to deliver all those 2295 shares and obtain payment against such delivery of Rs. 86 lacs and odd from Mundra.

6. The said S. Varma, who was then residing in England, came to India in or about May 1965. According to the complaint, Varma accompanied by one N. K. Majumdar, went to the office of the company on May 27, 1965, and upon his request for the said 707 share certificates, obtained from respondent 2 (D. M. Jaffay) the said share certificates. Varma thereupon issued a receipt for those share certificates and also executed an indemnity bond in favour of the company against any possible claims which Mundra might make in respect of those 707 share certificates. By the said bond the liquidators of Hungerford indemnified the company to the extent of Rs. 53 lacs said to have been paid by that company by way of taxes for the Turner family, undertook to assist that company to recover that sum from the estates of that family and furthermore to produce the said 707 share certificates whenever required for delivery to Mundra in terms of the said decree and to indemnify any claim which might arise as a result of delivery thereof to Varma. It is clear that once those 707 share certificates were handed over to Varma, Hungerford would, in terms of the said decree, be able to deliver to Mundra all the said 2295 shares and Mundra would have to take delivery of them against payment of Rs. 86 lacs and odd.

7. The receipt (document 2) which Varma executed at the time recorded the fact of the said 707 share certificates having been received by him from Jaffray, and their particulars and numbers. The prosecution case was that as Varma had then a luncheon engagement he did not wish to carry those scripts together with the corresponding blank transfer forms endorsed by the company, and therefore, g