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CASE NO.:

Appeal (crl.) 1249 of 2007

PETITIONER:

Dinesh Dalmia

RESPONDENT:

C.B.I.

DATE OF JUDGMENT: 18/09/2007

BENCH:

S.B. Sinha & Harjit Singh Bedi

JUDGMENT:

J U D G M E N T

CRIMINAL APPEAL NO. 1249 OF 2007

[Arising out of SLP (Crl.) No. 513 of 2007]

S.B. SINHA, J :

1. Leave granted.

2. Interpretation of Sub-section (2) of Section 167 of the Code of

Criminal Procedure, 1973 (for short "the Code") vis-‘-vis Sub-section (2) of

Section 309 thereof falls for consideration of this Court in this appeal which

arises out of an order dated 22.12.2006 passed by a learned Single Judge of

the High Court of Judicature at Madras in Crl. R.C. No. 1173 of 2006 setting

aside an order dated 25.08.2006 passed by the 5th Additional Sessions Judge,

Chennai in R.C. 4/(E)/03/BSC/FC/CBI New Delhi in Crl. R.C. No. 115 of

2006 whereby an order dated 30.05.2006 passed by the Special Court in Crl.

M.P. No. 788 of 2006 in C.C. No. 19189 of 2005 was set aside.

3. Appellant was proceeded against for commission of offences under

Sections 409, 420 and 120B of the Indian Penal Code.

4. The Central Bureau of Investigation (CBI) lodged a first information

report against the appellant and three companies registered and incorporated

under the Companies Act, 1956 on a complaint made by the Securities and

Exchange Board of India. Indisputably, Appellant was named therein. He

was, however, evading arrest. He had gone to the United States. The

learned Magistrate by an order dated 14.02.2005, on a prayer made in that

behalf by the CBI, issued a non-bailable warrant of arrest against him. Upon

completion of investigation, a charge sheet was submitted before the

Magistrate in terms of Sub-section (2) of Section 173 of the Code. In the

said charge sheet, name of the appellant appeared in Column No. 1 along

with the said three companies. Name of one of the companies named in the

first information report, viz., M/s. DSQ Software Ltd., has been shown in

Column No. 2. In the said charge sheet, it was stated:

"Investigation has revealed that Sh. Dinesh

Dalmia, the then Managing Director & Custodian

of properties, including shares, of M/s. DSQ

Software Ltd., fraudulently got dematerialized un-

allotted and unlisted share of DSQ Software Ltd.

In the name of three entities namely New Vision

Investment Ltd., UK; Dinesh Dalmia Technology

Trust and Dr. Suryanil Ghosh, Trustee \026 Softec

Corporation and thereafter these shares were sold

in the market and the proceeds of sale of said

shares were credited in the accounts of M/s. DSQ

Holdings Ltd., M/s. Hulda Properties and Trade

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Ltd. and M/s. Powerflow Holding and Trading Pvt.

Ltd. and thereby dishonestly misappropriated and

cheated investors including existing share holders

and obtained undue gain to the tune of Rs.

5,94,88,37,999/-.

Thus, Sh. Dinesh Dalmia has committed

fraudulent acts prima facie disclosing commission

of offences of cheating, breach of trust, forgery

and using forged documents as genuine by getting

wrongful gain in the matter of partly paid shares.

DSQ Software Ltd. in the name of New Vision

Investment Ltd., UK; unallotted shares in the name

of Dinesh Dalmia Technology Trust and "Dr.

Suryanil Ghosh Trustee Softec Corporation". M/s.

DSQ Holdings Ltd., M/s. Hulda Properties and

Trades Ltd. and M/s. Powerflow Holding &

Trading Pvt Ltd have also committed offence of

cheating in the matter of above mentioned shares

and the above facts disclose commission of

offences punishable U/s 409, 420, 468 and 471

IPC on the part of accused Sh. Dinesh Dalmia (A-

1) and U/ 420 IPC on the part of accused

companies namely M/s DSQ Holdings Ltd (A-2)

represented by Sh. Dinesh Dalmia, Director, M/s.

Hulda Properties & Trades Ltd (A-3) represented

by Sh Ashok Kumar Sharma, Director & M/s

Powerflow Holding & Tradi