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2015 (9) TMI 917

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..... ncerned with the affairs of the company, much less, day to day affairs of the company and whatever violation of the Act is alleged was not in her knowledge. - Petition dismissed. - CRL.REV.P. 692/2012 - - - Dated:- 21-7-2015 - MR. ASHUTOSH KUMAR, J. For The Petitioner : Mr.Sunil Chaudhary, Advocate For The Respondent : Mr.Lovkesh Sawhney, APP, Mr.Ashish Aggarwal, Adv., Mr.Vivek Yadav, Official, SEBI ASHUTOSH KUMAR , J. 1. The revisionist petitioner is aggrieved by the order dated 19.11.2012 passed by the learned ACMM (Special Acts) Central Delhi passed in SEBI Vs. M/s.Assured Agro Park whereby the prayer for discharge from the complaint case filed by SEBI has been rejected. 2. The discharge application of the petitioner was structured on the ground that she had ceased to be a director of the Assured Agro Park Ltd ( the company for short) long before the alleged violations of the requirements under the SEBI Act were committed. 3. Brief facts which led to the filing of the complaint by the SEBI are as hereunder. 4. Assured Agro Ltd (the company) was incorporated on 4.4.1997 with its registered office in Delhi. The company engaged itself in Collective .....

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..... existing collective investment scheme which: (a) has failed to make an application for registration to the Board; or (b) has not been granted provisional registration by the Board; or (c) having obtained provisional registration fails to comply with the provisions of regulation 71; shall wind up the existing[collective investment scheme]. (2) The existing Collective Investment Scheme to be wound up under sub-regulation (1) shall send an information memorandum to the investors who have subscribed to the [collective investment scheme]s, within two months from the date of receipt of intimation from the Board, detailing the state of affairs of the [collective investment scheme], the amount repayable to each investor and the manner in which such amount is determined. (3) The information memorandum referred to in sub-regulation (2) shall be dated and signed by all the directors of the [collective investment scheme]. (4) The Board may specify such other disclosures to be made in the information memorandum, as it deems fit. (5) The information memorandum shall be sent to the investors within one week from the date of the information memorandum. (6) The information memorandum shall expl .....

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..... erson who has been operating a collective investment scheme at the time of commencement of these regulations shall be deemed to be an existing collective investment scheme and shall also comply with the provisions of this Chapter. Explanation : The expression operating a collective investment scheme‟ shall include carrying out the obligations undertaken in the various documents entered into with the investors who have subscribed to the[collective investment scheme]. (2) An existing collective investment scheme shall make an application to the Board in the manner specified in regulation 5. (3) The application made under sub-regulation (2) shall be dealt with in any of the following manner: (a) by grant of provisional registration by the Board under sub-regulation (1) of regulation 71; (b)by grant of a certificate of registration by the Board under regulation 10; (c) by rejection of the application for registration by the Board under regulation 12. 73. (1) An existing collective investment scheme which: (a) has failed to make an application for registration to the Board; or (b) has not been granted provisional registration by the Board; or (c) having obtained provisional .....

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..... ts violation of the law in this regard. 16. The company neither responded to the said public notice nor the subsequent show cause notice. 17. The company, therefore, in the year 2000 was directed to refund the money collected under the CIS Scheme within a period of one month. 18. The complaint alleges that the company had raised a total amount of ₹ 0.885 crores and had failed to repay the amount to the investors causing huge pecuniary losses to them. 19. The complaint, therefore, came to be filed on 22.5.2002 against the company and its directors including the petitioner for violation of Section 11B, 12(1B) of the SEBI Act, 1992 read with Regulation 5(1), 68(1), 68(2), 73 and 74 of the SEBI (CIS Scheme Regulations, 1999) which is punishable under Section 24(1) and Section 27 of the SEBI Act, 1992. 20. The petitioner while praying for discharge submitted that she was the director of the company from 1.1.1998 to 25.7.1998 which period was much before the alleged violations. In support of her contention the petitioner relied upon Form 32 and the minutes noting which indicate that the petitioner resigned from the Board of Director on 25.7.1998 (P2 to the petition). .....

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..... oard of the company as a director and whether she participated in the day to day functioning of the company remains a disputed question of fact which could only be thrashed out or settled in a full fledged trial. 27. In Vishnu Prakash Bajpai vs. Securities and Exchange Board of India, 2010 (2) Crimes 394, the Supreme Court held that the offences punishable under Section 24 of the Act is a continuous offence i.e till the time the company complies with the Regulations and directions issued by SEBI by refund of money to the investors. 28. Now the issue is as to when an accused shall be discharged. 29. Section 239 of the Code of Criminal Procedure provides that if the charge against an accused is found to be groundless, he would be discharged by the Court. At the stage of framing of the charges, no detailed discussion or in-depth enquiry is to be made. What is required to be seen by the Court while framing charges is whether on the complaint or the materials before the Court, a prima facie case under the sections charged is made out or not. 30. At the time of framing of charges, any material brought forward by an accused is not to be taken unless such material is of impeach .....

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