Criminal court muddemal property
S Singh
(Querist) 09 August 2015
This query is : Resolved
I had opened a demat account with a depository in 2006.
I purchased some shares from its seller and the seller delivered them into my demat account vide an off-market transfer in 2009.
The seller lodged an FIR against me and claimed the shares in 2009.
The police sent a letter to the depository in 2009 to keep freeze upon the shares till that time till order of Court comes.
The Court erroneously convicted me in 2012 and in its Judgment order sentenced me to suffer 3 yrs. imprisonment with fine of Rs. 4000 and also ordered me to return the muddemal property (shares) to the complainant after the period of appeal is over.
I immediately within 30 days of the order filed an appeal which is till date pending.
The police approx. one month after the Judgment order date sent letter to my depository making reference of its previous letter of 2009 and stated that “The Magistrate had ordered the accused to handover the shares back to the complainant after the period of appeal is over."
But the depository by mistake thought that the order was for them and in a wrongful assumption also calculated 60 days as the appeal period from the Judgment order date and without taking my signature and authorization transferred the shares to the demat account of the complainant and closed my demat account.
When I asked the depository to reinstate the shares they stated that they shall not do so and issued a letter of anticipatory cancellation of the contract.
The shares which the complainant received by the mistake of the depository has been alienated by the complainant and are not traceable.
What can be the remedy? Plz. Help
M V Gupta
(Expert) 10 August 2015
Mere filing of appeal does not prevent the Complainant from enforcing the judgement and order passed by the Lower Court, if no stay was granted by the appellate court. ur statement that the Police wrote to the Depository for transfer of the shares does not appear correct. On the expiry of the appeal period the Complainant must have approached the lower court for enforcement of its order as there was no stay granted by the appellate court. Pl check with the lo9wer court.
S Singh
(Querist) 10 August 2015
Sir,
The Lower Court had ordered me to handover the shares to the complainant after the period of appeal is over and when I had filed an appeal within time then how can the depository without my consent transfer shares on its own?
First of all the depository has no concern with the order when it was not upon them.
The police also stated in their letter that the court had ordered the accused to handover the shares to the complainant after the period of appeal is over.
Further "ORDER FOR DISPOSAL OF PROPERTY AT CONCLUSION OF TRIAL" section 452(4)of Cr.P.C. it is mentioned as:
"Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of subsection (2), an order made under subsection (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of."
Further, other than the Judgment order there is no other order by the Lower Court to make transfer.
Plz. Help
M V Gupta
(Expert) 13 August 2015
issue notice to the Depository and call upon them to reverse the transfers effected by them as they are unauthorized. u will come to know from their reply how and why they had transferred the shares without ur consent or any order from the court directing them to effect transfer.
S Singh
(Querist) 13 August 2015
I had earlier issued notices for the reinstatement to the depository.
The depository agrees that they had committed a grave mistake by misunderstanding the police letter and thus wrongfully handed the shares to the complainant.
But they deny reinstatement/compensation for the shares as the shares has been transferred to the complainant and not recoverable.
They are stating that my dispute is originally with the complainant, hence not to approach them but instead approach the complainant.
Ques.: To whom am I entitled reinstatement/compensation, is it the complainant or from the depository?
Further is The Indian Contract Act, 1872 applicable against the depository when the shares are subjudice in Criminal and Civil cases?
M V Gupta
(Expert) 14 August 2015
The depository has admitted their fault. This resulted in loss of ur rights over the shares and the dividends if any declared or to be declared. Issue legal notice from ur Advocate claiming damages form the Depository. If they do not compensate u may consider lodging a case in the consumer disputes redressal Commission.The illegal transfer of shares amounts to deficiency in service within the meaning of the Consumer Protection Act.
S Singh
(Querist) 15 August 2015
Since my criminal appeal is pending, I fear that the consumer disputes redressal commission may dismiss my case with reason stating matter being sub judice.
My case shall then go out of limitation period.
Where does the remedy lies?
Plz. Help
Anirudh
(Expert) 15 August 2015
Even otherwise you will not be able to approach the Consumer Forum as the period of limitation is long over.
Guest
(Expert) 15 August 2015
Consumer Forum Has Nothing to Do with your Case.Approaching The SEBI would be the Best Remedy.Meet the Concerned Regional Officials of SEBI and Seek Their Guidance in Detail.
M V Gupta
(Expert) 15 August 2015
The cause for approaching the Consumer Forum is the deficiency in service on the part of the Depository in transferring the shares unauthorizedly due to which u are losing ur rights over the shares and the dividends that may accrue to u. The pendancy of the Appeal filed by you is altogether different Viz to set aside the lower court order. As regards limitation, the damage caused by the illegal act of the Depository is continuing cause and hence u may be within ur right to file complaint before the Forum.
T. Kalaiselvan, Advocate
(Expert) 16 August 2015
The suggestion made by expert Mr. MV Gupta seems to be reasonable, you may analyse all the options and choose the better one.
S Singh
(Querist) 19 August 2015
I had approached the SEBI but was turned down.
They state that since the matter is sub-judice and case is pending they cannot intervene.
Further there was also an order in a suit taken out by the complainant in the High Court, Bombay, upon the depository to maintain status-quo with respect to the said shares.
But due to their wrongful transfer the status-quo order of the High court was also breached.
However, the complainant after he received the shares, has quietly withdrawn the status-quo order.
Now can the Consumer Court admit my case and give justice in this matter or will they also call it as sub-judice and dismiss the case?
Or do i have only one remedy i.e. to approach the High Court and file a suit for compensation for breach of contract?
Guest
(Expert) 19 August 2015
You Should Get The Letter Of SEBI their Statement in Writing.Basing on that With the Help of a Senior advocate Proceed in the Court.
