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2021 (4) TMI 1032
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....nning) Act, 1978. 3. Cr.R. No. 1339 of 2019 has been brought against the order dated 11.03.2019, passed in Special Criminal Case No. 01 of 2018, passed by the Special Judge, Bemetara, District Bemetara, by which, charges have been framed against the applicants for commission of the offence under Section 420, 409 of the Indian Penal Code and Section 3, 4 & 5 of the Prize Chits Money Circulation Schemes (Banning) Act, 1978 and Section 10 of Protection of Depositors Interest Act, 2005. 4. It is submitted by the learned counsel for the applicants in all the cases, that framing of charges against the applicants in all three cases is erroneous and illegal, as there had been no prima-facie case present against these applicants for framing of such charges. The FIR that has been registered in all the cases, firstly does not mention the names of these applicants as the persons, who have cheated the complainant. The applicant - Amandeep Singh Saran was one of the director of H.B.N. Dairy & Allied Limited in the year 1998 under the provisions of Companies Act, 1956. The applicant - Rakesh Tomar was also one of the directors for a limited period. It was the business of the company to seek....
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....bmitted that the investigation made by the police and the FIR registered has not been fair. The repayment to the investors has not been made so far, because of the failure of SEBI, for which, the applicants' company can not be held responsible. The offence under Section 409 of I.P.C. is not made out as there is no iota of intention on the part of the applicants to show that they have misappropriated or converted to their own use the property entrusted to them. Similarly, the offence under Section 420 of the Indian Penal Code is also not made out as the very ingredients for the offence of cheating, dishonest intention is totally missing. The activity of the applicants' company does not fall under the definition of Prize Chits, which is defined under Section 2 (e) of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 (in short 'the Act, 1978). As there had been no scheme of drawing lots or winning prize for the subscribers of the investment company, therefore, the activity of the company was not in violation of Section 3 of the Act, 1978, therefore, not punishable under Section 4 of the Act, 1978. 6. It is also submitted that the offence under Section 10....
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....eported (1977) 1 SCC 463, S.K. Alagh Vs. State of U.P. & Ors, reported in (2008) 5 SCC 662, Umashankar Gopalika Vs. State of Bihar, reported in (2005) 10 SCC 336. It is further submitted that in the case of State of West Bengal & Ors. Vs. Swapan Kumar Guha and others, reported (1982) 1 SCC 561, it was held, that the question as to whether the FIR prima facie the case discloses an offence under Section 4 read with Section 3 of the Act has to be decided in the light of these requirements of Section 2 (c) of the Act. It is submitted that the activity of the applicants' company is not covered under Section 2 (c) of the Act, 1978. Therefore, framing of charge against the applicants in all three cases is totally erroneous, illegal without any basis. It is prayed that revision petition be allowed and the applicants be discharged from all the charges in all three cases. 8. Learned State counsel opposes the revision petitions and the submissions made in this respect. It is submitted that the applicant No.2 Rakesh Tomar (in Cr. R. No. 1339 of 2019) had earlier filed Cr.M.P. No.1526 of 2017 to quash the proceeding in criminal case No.17129 of 2015, which has been dismissed by order dat....
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....efore, minor irregularities in the investigation do not vitiate the trial. 10. Reliance has been placed on the judgment of this Court in Cr.R. No.34 of 2018, between Sate of C.G. Vs. Gaurav Dewangan and other bunch of revision petition, decided on 11.09.2019, in which, the Sessions Judge had discharged the accused persons from the offence under Section 10 of the Act, 2005. The learned Coordinate Bench of this Court has allowed the revision petition and directed the trial Court to frame charges against the accused persons under Section 10 of the Act, 2005. It is also submitted that there is prima-facie case present for framing of charges, that have been framed against these applicants. Reliance has also been placed on the judgment of Supreme Court in case of Sajjan Kumar Vs. CBI, reported in (2010) 9 SCC 368 and it was held that It was for the trial Court to appreciate the evidentiary value, credibility or otherwise of the statement, veracity of various documents and take a decision accordingly and at the initial stage, even if there is strong suspicion, which leads to believe that there is ground for assuming that the accused has committed the offence, that shall be sufficient f....
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....urity, he deposited the bond in the office of the company and he was provided with a cheque of Rs. 98,334/0 of Bank of Badoda. The complainant deposited the said cheque in his account, which was dishonoured. 14. In Cr.R. No.578 of 2018, the complainant Suraj Nirmalkar made a written complaint, upon which, FIR under Crime No. 142/2013 was registered against the directors of HBN Diary and Allied Com. Limited Company and others. It is alleged that the company has given inducement to the public for making deposit in the company on assurance that they will get refund of double amount in six years, but no refund was made to the depositors after the maturity period. 15. In Cr.R. No.1339 of 2019, the complainant Tarabai Jangade lodged FIR under Crime No. 43/2017, against the agents and others that the complainant was given inducement that on taking insurance policy from HBN Dairy and Allied Limited Company, she will get refund of double amount in six years. Getting induced, she made deposit of Rs. 50,000/- and was issued a certificate, in which, refund of Rs. 1,00,000/- was promised on 24.03.2015. The complainant could not get any refund of the amount and on the contrary, the office ....
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....e applicants had engaged in the business of collective investment scheme is not true statement, as it is mentioned in the order of the SEBI dated 12.07.2013, that the applicants had replied that their collections of money was not under the collective investment scheme. If the applicants want to proceed on this statement, that may be a line of defence and that defence can be examined in the trial. Hence, I am of this view that the acts alleged against these applicants are covered under the definition of criminal breach of trust under Section 405 of I.P.C. and cheating under Section 415 of I.P.C. 19. Money circulation scheme is defined in Section 2 (c) of the Act, 1978, which is as follows :- "2(c). money circulation scheme" means any scheme, by whatever name called, for the making of quick or easy money, or for the receipt of any money or valuable thing as the consideration for a promise to pay money, on any event or contingency relative or applicable to the enrolment of members in to the scheme, whether or not such money or thing is derived from the entrance money of the members of such scheme or periodical subscriptions;" 20. The nature of the bond that has been iss....
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....erest in the happening of such event or contingency. That explains why section 3 makes it an offence to "participate" in the scheme or to remit any money "in pursuance of such scheme". He who conducts or promotes a money-spinning project may have manifold resources from which to pay fanciful interest by luring the unwary customer. But, unless the project envisages a mutual arrangement under which, the happening or nonhappening of an event or contingency relative or applicable to the enrollment of members into that arrangement is of the essence, there can be no 'money circulation scheme' within the meaning of section 2 (c) of the Act." 22. In the present state of affairs, there appears to be evidence present to show, that the applicants company and their agents were engaged in promoting the scheme of the company by selling certificates with a promise of higher rate of interest on the eventuality of the plans of term, hence, it can be said that the activity of the applicants' company appears to be covered under Section 2 (c) of the Act, 1978 and therefore, promotion of such scheme, which is banned under Section 3 of the Act, 1978 is punishable under Section 4 ....