A person who has not been allotted shares or debentures in a company is not a shareholder and cannot file a complaint under Section 621 of the Companies Act, 1956.

1. - By this petition it is prayed that Criminal Complaint No. 59 of 1993 as also the proceedings taken thereon by the trial court Special Court of Judicial Magistrate (Economic Offences), Rajasthan, Jaipur, be quashed and set aside.

2. The petitioner-company, Herdillia Unimers Ltd., for the purpose of increasing its capital came out with a public issue of shares and debentures in the year 1992. The said public issue was to commence on June 1, 1992, and scheduled to close on June 11, 1992. The public issue having been oversubscribed it was duly closed on June 4, 1992, being the earliest scheduled date of closing. Under the terms and conditions of the aforesaid allotment, any person could apply for shares and/or debentures. Every applicant was required to pay a sum of Rs, 10 per equity share and a sum of Rs. 200 per debenture, as the case may be.

3. On the closure of the aforesaid public issue a return was filed by the petitioner before the Securities and Exchange Board of India, a statutory body, giving out details regarding the applicants who were given allotments of shares/debentures as also those applicants whose deposit money was refunded. The applications for allotments of the aforesaid shares/debentures were to be processed, examined and considered at the aforesaid office of the petitioner-company at Bombay. The decision with respect to allotment of the shares/debentures was also taken at Bombay. In the event of allotment of shares/debentures, certificates in this regard were sent by the petitioner from its Bombay office, and in cases of non-allotment thereof the money was refunded by the petitioner-company from its Bombay office.

4. The respondent, Arun Bansal, has also applied for allotment of shares/ debentures to him and to his wife, Vimlesh Bansal. But no allotment of share or debenture was made and Rs. 3,000 were sent to Arun Bansal, vide refund order No. 192412, further Rs. 3,000 were sent to Vimlesh Bansal, vide refund order No. 192414.

5. Subsequently, on reconciliation of its accounts by the petitioner-company with the bankers, i.e., American Express Bank Ltd., it was found that the aforesaid refund orders which were sent to the complainant and his wife have remained unencashed. Therefore, the petitioner-company sent demand draft No. 161212, dated February 5, 1994, for a sum of Rs. 3,675 drawn on Bank of India in favour of the complainant, and another demand draft No, 161213, dated February 5, 1994, for a sum of Rs. 3,675 drawn on Bank of India in favour of Vimlesh Bansal was sent. This time, the demand drafts were sent by registered post, The demand drafts were sent along with the principal money and interest thereon till February 5, 1994, therefore, the amount of Rs. 3,675 each was sent to complainants Arun Bansal and his wife, Vimlesh Bansal.

6. As the amount was not received in time by the respondent and his wife, the complaint has been filed before the Special Court of Judicial Magistrate (Economic Offences), Jaipur, alleging therein that the petitioner-company has not refunded the money timely and committed the offence under Sections 61, 63, 73 and 113 of the Companies Act, 1956. The trial court has taken cognisance thereof.

7. Being aggrieved by the aforesaid complaint and taking cognisance against the director of the petitioner-company and its officers, this petition under Section 482 of the Criminal Procedure Code has been filed and prayed that the proceedings on the basis of frivolous and vexatious complaint be quashed and set aside.

8. Learned counsel for the petitioner-company, Shri Kuhad, submitted that when the shares or debentures were not allotted to the complainant and his wife, Vimlesh Bansal, then immediately the money was refunded, When it is found that they have not received the money and refund orders have remained unencashed, immediately the demand drafts for the principal amount, as well as, interest thereon till the date of sending the demand draft were sent by registered post. Theref