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TMI Blog2010 (2) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... tation Bonds, etc., Government of India decided to treat such schemes as Collective Investment Schemes and brought them under the purview of SEBI Act, 1992, with the object of protecting the investors and promoting legitimate investment activities. Securities & Exchange Board of India (Collective Investment Schemes) Regulations, 1999 were thereafter framed by SEBI. Vide its letter dated December 15, 1999/December 29, 1999 and also by way of a public notice, SEBI directed M/s. N.R. Plantations (India) Limited, which was operating Collective Investment Schemes and had raised a sum of Rs. 2,80,000 from the general public, to send an information memorandum to all the investors, detailing the state of affairs of the Schemes, the amount repayable to each investor and the manner in which such amount was determined. The information was required to be sent latest by February 28, 2000, which was later extended to 31-3-2000. In terms of regulation 73(1) of the above-referred Regulations, the Collective Investment Schemes, which failed to apply for registration with SEBI, were required to wind up the existing schemes and repay the amount, collected from the investors. Regulation 74 required th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r consent to be a director of the company. 7. The statement in lieu of prospects delivered for registration by the Company gives the names of three persons Naresh Kumar Mishra, Shyam Badan Singh and Ajay Kumar Pandey as directors or proposed directors. 8. The respondents, on the other hand, have placed on record a letter dated 15-1-1998 written by N.R. Plantations (India) Limited. Para 3 of this letter contains the names of promoters/sponsors of the Company and names of seven persons, including the petitioner Vishnu Prakash Bajpai, have been given in para 3 of this letter. The bio-data of the petitioner has also been annexed to this letter. The respondent has also placed on record a copy of the letter dated 29-4-1998 written to SEBI, forwarding therewith the details of Directors of the Company. The resume of four persons, including the petitioner Vishnu Prakash Bajpai, have been annexed to this letter. 9. Thus, the documents filed by the petitioner do not show him as a Director of N.R. Plantations (India) Limited, though it does show him as one of the eight initial subscribers to the paid-up capital of the Company and the number of shares subscribed by all the eight subscribers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, as to whether the evidence produced by the complainant should be preferred or the evidence produced by the petitioner is more reliable. For the purpose of proceedings under section 482 of Code of Criminal Procedure, the allegations made in the complaint have to be taken as correct and on their face value and if on consideration of the allegations it appears to the High Court that ingredients of the offence or offences alleged to have been committed by the petitioners are made out and there is no material to show that the prosecution is mala fide, frivolous or fictitious, it would not be appropriate for it to interfere with the prosecution, in exercise of extraordinary power conferred upon it under section 482 of the Code of Criminal Procedure. Ordinarily, an accused against whom criminal proceedings are instituted needs to face trial in accordance with procedure prescribed in the Code of Criminal Procedure and it is only in extreme cases that the High Court would be justified in interfering, at an interim stage, in exercise of its powers under section 482 of the Code. The exercise of jurisdiction envisaged in section 482 of the Code, to quash the complaint or a charge sheet bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tomed to act." (p. 153) Therefore, it is quite possible for the complainant/respondent to establish, during trial that being a promoter of the company, the petitioner was a person in accordance with whose directions the Board of Directors of N.R. Plantations (India) Limited was accustomed to act. If this is shown, the petitioner would a person in charge of and responsible to the Company for conduct of its business, even if he was not a Director of the Company. 15. It would be pertinent to note here that the petitioner has not filed copies of Form-32 for all the years starting the year in which the violation of the provisions of SEBI Act was committed for the first time by the Company, nor has he filed any certificate from Registrar of Companies to show that he was never a Director of N.R. Plantations (India) Limited during the relevant period. The Company N.R. Plantations (India) Limited contravened the provisions of SEBI Act by not refunding the money collected by it from the persons who had invested money in its Collective Investment Schemes and this offence is a continuing offence till the time the Company complies with the regulations and directions issued by SEBI by refundin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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