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Mr. Hitendra Shah (Querist) 09 October 2011 This query is : Resolved
I am a Complainant in the case. In the said case Charge Sheet has been filed Under Sections 420, 465, 466, 467 & 34 in the year 2009. The charges have not been framed and trials have not commenced so far. In these years I gathered more evidences from Authority, Depository and Depository Participant. From the documents I found that many more accuses can be added. In this connection I sent complaint along with new evidences to the Senior Police Station for conducting further Probe/Investigation for preparing additional Charge Sheet on the basis of new documents found. He called me on 8/10/2011 and took my signature on the statement which he prepared, mentioning date as 7/10/2011 on the statement. In the statement he mentioned that for the re-investigation I should take Court Order. Now what should I do?

From the new documents that I collected, it is found that

1) Stock Exchange has granted Bolt/Terminal of main broker illegally to unregistered Sub-broker and allowed the main Broker to develop cliental work illegally through unregistered Sub-Broker and allowed them to issue fictitious, false and bogus bills to all the clients.

2) The main Broker got notarized POA of the clients of the Brokers BLANK, without having details of Bank A/c and Demat A/c numbers on the said POA. The main Broker is Broking firm, Pvt Ltd company. The broker might have taken many Blank copies of notarized POA out of which it gave one copy to the Bank for opening my new accounts in the year 2005 and one copy it gave to the Police IO in the year 2007 which was not verified by the Bank. In this copy the Broker filled in in its own way the details of my new Bank and Demat A/c and gave the said copy of POA to the Police, Committing Forgery on the said copy of POA. The POA holder was appointed by the Broking Firm. He was an employee and signatory in the Broking Firm and he is close relative of MD of the Broking Firm. The broking firm was proving finance in MARGIN TRADING to its clients through its associate firm and through its MD and therefore it was getting opened new accounts of the clients in the Bank and getting notarised the POA of the clients from his own Notary. The main broker got my signature on the blank accounts opening forms and blank POA by deceiving me by criminal breach of trust.

3) The Notary was involved in fraudulent activity. He notarised Blank POA of the Clients of the Broking Firm on the direction of the MD of the said Broking Firm.

4) On the direction of the MD of the Broking Firm the Bank accepted and verified the Blank POA. The bank and the broker chose for me I) "other than Individuals" form for opening my Bank A/c, considering me as Corporate and in the column Date of Incorporation they filled in my date of birth etc II) they chose for me "Corporate Internet Banking" application form to open my Internet Banking account. I did not fill any of these forms nor did I fill POA. The POA was in my individual name only. As all the formalities were carried on by the Broker, I did not have the copy of any of the documents and therefore I asked the Bank to sent me copies of all the documents. The Bank replied me on 30/9/2010 and sent me copies of some of the documents. In the verified copy of the POA I found that there was no mention of my Demat A/c number and DP ID on my POA and even then the Bank allowed POA holder to transfer my shares from my Demat A/c. There was only one POA holder on the POA but the Bank allowed 3 fraud, invalid, illegal and unauthorised POA holders to transfer my shares fraudulently, illegally and without any authority. My POA was notarised on 1/2/2005. My Bank A/c (other than Individuals) was opened on 9/6/2005 and my Demat A/c was opened on 1/12/2005 in the same Bank. In the letter dated 30/9/2010, the Bank confirmed that it filled in its own way my new Bank A/c number on the POA which was notarised on 1/2/2005, committing Forgery on the said POA. When I informed about all wrong doings that the Bank did the Bank replied me in July, 2011 that why I did not inform the Bank at early stage and according to them nothing wrong has happened.

5) When I informed to the Depository, they followed the ready made standard procedures and asked the Bank to send it 1) Copy of POA that allowed POA holder to transfer the shares and 2) copies of Delivery Instruction Slips (DIS) that allowed the Bank to carry out transactions. the Depository justified all wrong doings of the Bank and covered up the bank by diluting the matter informing me to go to Police or go to the Arbitration of Stock Exchange. I again informed the Depository that When POA is invalid/unauthorised/illegal/forged, when all 3 POA holders are fraud/unauthorised/illegal and when all the DIS were invalid and unauthorised how can you justify all wrong doings it did not reply me.

the same case is with my wife also. In both the cases amount involved is big. At present we are in very miserable position.

I want advise from the Experts that what should I do in the criminal cases. After fighting with Banking Ombudsman, they informed me that I can file Complaint. I want to know whether can I file my case in Consumer Court for my claim? whether should I claim from the Bank or Broker?

I will be obliged if you also email me at

hitendrahshah30@gmail.com

Thank you very much.

God may bless all of you.

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ajay sethi (Expert) 09 October 2011
1)you have already file complaint . the police have given an writien opinion that it is necessary to obatin orders from court for reinvestigation of offence .

make an application to magistrtate court . the magistrate may order reinvestigation under 173(8) of crpc

Sri Bhagwan S.S.V.V. Maharaj v. State of A.P.
AIR 1999 SC 2332
K.T. THOMAS, J. - A godman is now in the dock. One who was initiated by him as his
devotee has later turned to be his bete noire, and the godman is facing a prosecution for the
offence of cheating under Section 420 of the Indian Penal Code. When he moved the High
Court to quash the criminal proceedings pending against him, the motion was dismissed as
per the impugned order against which the present appeal has been filed by special leave.
3. Facts, thus far developed, are stated below: An FIR happened to be registered on the
complaint lodged by one Venkatakrishna Reddy with the Town Police Station, Nellore,
containing the following allegations. The appellant (Sri Bhagwan Samardha Sreepada
Vallabha Venkata Vishwanandha Maharaj) who is a young man, son of a teacher of
Gummaluru Village (A.P.) claimed to possess occult faculties and attracted a number of
devotees. He represented to have divine healing powers through his touches, particularly of
chronic diseases. The complainant approached him for healing his 15-year-old daughter who
is congenitally a dumb child. The appellant assured the complainant that the little girl would
be cured of her impairment through his divine powers. He demanded a sum of Rs. 1 lakh as
consideration to be paid in instalments. The first instalment demanded was Rs. 10,000 which,
after some bargaining, was fixed at Rs. 5000. The complainant paid that amount and later he
paid a further amount of Rs. 1000 towards incidental expenses. He waited eagerly for
improvement of his dumb child till 1994 which was the time-limit indicated by the appellant
for the girl to start speaking. As the child remained the same, the complainant began to
entertain doubts. The appellant postponed the time-limit till August 1994 for the girl to
develop speech capacity. A little more amount of Rs. 516 was collected for performance of a
yagya. But unfortunately no such thing brought about any change in the girl. In the
meanwhile, news of some other persons defrauded by the appellant reached the ears of the
complainant as newspapers started publishing such other activities indulged in by the
appellant. In one such publication it was mentioned that the appellant had mobilised more
than a crore of rupees from different devotees. It was then that the complainant realised the
fraud committed by the appellant, according to the complainant. Hence a complaint was
lodged with the police for cheating.
4. The police conducted investigation and on 15-12-1994 laid final report before the
Magistrate concerned by referring the case as “mistake of fact” mainly on the ground that this
is a kind of religious belief “prevalent in India among devotees of God”. According to the
appellant, this was not a case of cheating or breach of trust. But the Magistrate was not
prepared to give accord to the said report. On 2-8-1995 he ordered for “reinvestigation of the
case”.
5. Pursuant to the said order, the police reinvestigated and filed a report on 15-9-1997
holding that the appellant has committed the offence under Section 420 of IPC. The
Magistrate took cognizance of the offence on receipt of the said report and issued warrant of
arrest against the appellant.
Sri Bhagwan S.S.V.V. Maharaj v. State of A.P.
226
6. The appellant moved the High Court for quashing the proceedings on two grounds.
First is that the Magistrate has no jurisdiction to order reinvestigation after receipt of the first
report of the police, without affording an opportunity to the appellant. Second is that
allegations of the complainant would not constitute an offence of cheating. But the High
Court dismissed the petition for which the impugned order was passed.
7. Learned counsel contended that no offence of cheating can be discerned from the
allegations, particularly in view of the admitted fact that the complainant reposed faith only in
the divine powers which the appellant would only have offered to invoke through rituals and
prayers.
8. If somebody offers his prayers to God for healing the sick, there cannot normally be
any element of fraud. But if he represents to another that he has divine powers and either
directly or indirectly makes that other person believe that he has such divine powers, it is
inducement referred to in Section 415 IPC. Anybody who responds to such inducement
pursuant to it and gives the inducer money or any other article and does not get the desired
result is a victim of the fraudulent representation. The court can in such a situation presume
that the offence of cheating falling within the ambit of Section 420 IPC has been committed.
It is for the accused, in such a situation, to rebut the presumption.
9. So the contention that the allegations do not disclose an offence under Section 420 IPC
has to be repelled and we are of the opinion that the Magistrate has rightly taken cognizance
of the said offence.
10. Power of the police to conduct further investigation, after laying final report, is
recognised under Section 173 (8) of the Code of Criminal Procedure. Even after the court
took cognizance of any offence on the strength of the police report first submitted, it is open
to the police to conduct further investigation. This has been so stated by this Court in Ram
Lal Narang v. State (Delhi Admn.) [AIR 1979 SC 1791]. The only rider provided by the
aforesaid decision is that it would be desirable that the police should inform the court and
seek formal permission to make further investigation.
11. In such a situation the power of the court to direct the police to conduct further
investigation cannot have any inhibition. There is nothing in Section 173 (8) to suggest that
the court is obliged to hear the accused before any such direction is made. Casting of any such
obligation on the court would only result in encumbering the court with the burden of
searching for all the potential accused to be afforded with the opportunity of being heard. As
the law does not require it, we would not burden the Magistrate with such an obligation.
12. For the aforesaid reasons, we are unable to interfere with the order passed by the
Magistrate. Appeal is accordingly dismissed.

Arun Kumar Bhagat (Expert) 09 October 2011
I want advise from the Experts that what should I do in the criminal cases.

Ans: You are moving in right direction.Nothing more is advised at this juncture.

After fighting with Banking Ombudsman, they informed me that I can file Complaint. I want to know whether can I file my case in Consumer Court for my claim? whether should I claim from the Bank or Broker?

Ans: You can file case in Consumer Forum.You can claim from both Bank & Broker.

Shailesh Kr. Shah (Expert) 09 October 2011
Do As advised by learned advocates and you are asked also for consumer forum? yes,you can go.

Mr. Hitendra Shah (Querist) 10 October 2011
Sir, the correspondences with the bank happened till July,2011. The last unauthorized transfer of Shares and Money from the Bank and Demat accounts were happened in the year 2007.

I would like to know that for my claim from the Broker and Bank can I go to Consumer Court?

ajay sethi (Expert) 10 October 2011
if transactions have happened in year 2007 with banks how can you file consumer complaint now for deficency of service?

claim would be barred by limmitation