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TMI Blog2019 (2) TMI 1978X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, he conducted raid on 11.05.2013 at the Branch Office of Samruddha Jeevan Foods India Ltd. (hereafter 'the company') located at Bandutikra Chowk at Bargarh and it came to light during such raid that the Director General, Director and official staff of the said company entered into a criminal conspiracy with each other and in pursuance of such conspiracy, they were collecting huge deposits from the poor public of rural area alluring of high returns and also to provide them domestic animals like goat, sheep, pig etc. It is further stated that the company was not registered with RBI or SEBI for conducting such type of business/money transaction and investment of public money in their own business and thereby cheating the poor investors. On the basis of such F.I.R., Bargarh P.S. Case No.155 of 2013 was registered on 12.05.2013 under sections 420, 406, 120-B of the Indian Penal Code and sections 4 and 5 of 1978 Act. During course of investigation, it revealed that the company was registered under Company Registration Act, 1956 with the Registrar of the Companies (ROC), Pune which was incorporated on 29.04.2002 as Gurukrupa Diary Pvt. Ltd. and the name of the company changed to S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... major shares in many of the companies. Meetings/seminars were conducted at Bhubaneswar and other places all over India to allure the depositors/agents for higher returns on the investment in the company. The money deposited by the investors were not returned to them as assured and they were cheated and the money was misappropriated even though sale registration letters/certificates were issued to the investors/depositors in token of investment by the depositors in the company. The company without any certificate of registration from SEBI launched Collective Investment Scheme (CIS) which was in contravention of section 12(1B) of the Securities and Exchange Board of India Act, 1992 (hereafter 'SEBI Act') and regulation 3 of Securities and Exchange Board of India (Collective Investment Schemes) Regulations, 1999 (hereafter 'CIS Regulations'). During 2008 to 2014, the company mobilized deposits to the quantum of Rs. 1116.12 crores approximately from 47.76 lakhs depositors. The company diverted substantial part of funds mobilized from the public under the guise of sale and purchase of livestock for other purposes. The fund mobilizing activity i.e. promising an estimated returns/profit, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia Ltd. represented through its Director Shri Mahesh Kisan Motewar i.e. accused no.1 under sections 120-B, 420, 409 of the Indian Penal Code and sections 4, 5 and 6 of the 1978 Act keeping the investigation of the case open in terms under section 173(8) of Cr.P.C. During course of further investigation, it revealed that the petitioner was the Promoter Director of the Company since 29.04.2002 and continued till 15.12.2003. She was again appointed as Director of the company on 24.10.2013. She resigned from the Directorship of the company since 25.10.2013, however, she continued to be a major stake holder of the company. Substantial amounts, which were illegally collected by the company from the gullible investors in the guise of sale/purchase and rearing of livestocks, were unauthorizedly diverted from the bank account of the company to the various bank accounts of the petitioner through online transfer as well as through cheque payments. An amount of Rs. 13,40,87,178/- has been diverted from various bank accounts of the company to the bank account No.37010100673648, maintained with Axis Bank Ltd., Pune Mina Branch of the petitioner. Further an amount of Rs. 2,74,80,786/- has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n No.876 of 2018 vide order dated 17.07.2018 on the ground that the petitioner was one of the Directors of the company and she was involved in generating the public money and misappropriating the same in connivance with the other coaccused persons and that the further investigation was underway and that the petitioner might influence the material witnesses and even abscond and that it is an economic offence which has affected the society at large. 4. Mr. Suresh Tripathy, learned counsel for the petitioner contended that the co-accused Mahesh Kisan Motewar, who was the Managing Director of the company and the husband of the petitioner has been released on bail by the Hon'ble Supreme Court in SLP(Crl.) No.7563 of 2018 vide order dated 26.10.2018 only on the ground that he was arrested on 16.12.2015 and charge sheet was filed on 23.08.2016 and charges have not been framed. It is submitted that the petitioner, who is in judicial custody since 10.08.2016, stands on the similar footing and therefore, on the ground of parity and equity, she should be released on bail keeping in view the proviso to section 437(1) of Cr.P.C. It is further contended that there is nothing in the charge sheet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een diverted from the bank account of the company to various bank accounts of the petitioner, which she has misappropriated and the investors were not paid back with their deposits with assured amount on maturity. It is submitted that the Securities and Exchange Board of India (SEBI) passed an ex-parte order on 31.10.2013 observing that the company was engaged in fund mobilising activities from the public by floating or sponsoring or launching Collective Investment Scheme (CIS) in terms of section 11AA of SEBI Act without obtaining a Certificate of Registration from SEBI as required under section 12(1B) of the SEBI Act and regulation 3 of the CIS Regulations. By virtue of interim order, the company and its Directors were restrained collecting any more money from the investors including under the existence schemes, launching new schemes, disposing of any of the properties or alienate any of the assets of the schemes and also diverting any fund raised from public at large, which were kept in the bank accounts or in the custody of the company. It is further argued that the company had no statutory authority to run Collective Investment Schemes by making false promises to the investors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersion of funds. It further appears that the petitioner continued to be a major stake holder of the company and a total sum of Rs. 16,35,67,974/- (rupees sixteen crores thirty five lakhs sixty seven thousands nine hundred seventy four only) was found to have been diverted to different accounts of the petitioner from the company. The assurance which was given to the depositors by way of different schemes at the time of collection of money was not carried out and huge amount of public money collected illegally was misappropriated. Section 12(1B) of the SEBI Act states that no person shall sponsor or cause to be sponsored or carry on or cause to be carried on any venture capital funds or collective investment scheme including mutual funds, unless he obtains a certificate of registration from the Board in accordance with the regulations. Regulation 3 of CIS regulations states that no person other than a Collective Investment Management Company which has obtained a certificate under these regulations shall carry on or sponsor or launch a collective investment scheme. Admittedly, no such certificates as provided either in the SEBI Act or CIS regulations were obtained by the company from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he chance of rejection of the bail, though, however, depended on the factual matrix of the matter". In the case of Prahalad Singh Bhati -Vrs.- NCT, Delhi reported in 2001 Supreme Court Cases (Criminal) 674, it is held as follows:- "8.....While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or state and similar other considerations". In the case of Sanjay Chandra -Vrs.- CBI reported in A.I.R. 2012 S.C. 830, it is held as follows:- "25.........It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white colour crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest". In case of Nimmagadda Prasad (supra), it is held as follows:- "25. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence have been deep-rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as a grave offence affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country." Therefore, economic offences are considered grave offences as it affects the economy of the country as a whole and such offences having deep rooted conspiracy and involving huge loss of public fund are to be viewed seriously. Economic offence is comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the applicant before the Court is identically similar to the accused on facts and circumstances who has been bailed out, then the desirability of consistency will require that such an accused should also be released on bail. The grant of bail is not a mechanical act. Merely because some of the co-accused, whom similar role has been ascribed, has been released on bail earlier, the power of the Court cannot be fettered to act against conscience. The Hon'ble Supreme Court granted bail to the coaccused Mahesh Kisan Motewar on 26.10.2018 on the ground that he was arrested on 16.12.2015 and charge sheet was submitted since 23.08.2016 but charges have not been framed. The first charge sheet was submitted on 23.08.2016 against the said accused and the company, wherein, it was indicated that the said accused was taken on remand in the case on 27.04.2016 on the basis of production warrant. The second charge sheet was submitted on 12.09.2018 against the petitioner and another and it is reflected therein that the petitioner was taken on remand in the case on the strength of production warrant on 17.05.2018. Therefore, the period of detention of the petitioner in judicial custody in co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce is of such a nature which affects the vital interest of the society and has adverse effect on the social and family life, in such matters the issue is to be considered with reference to them and one of the consideration which has to be weighed for granting or refusing bail is the nature of the offence and its heinousness. Though the beneficial provision relating to release of an accused under the age of sixteen years or on the ground of being a woman or sick or infirm has to be kept in mind while considering his/her bail in spite of his/her involvement in an offence punishable with death or imprisonment for life but at the same time the Court should also give due weight to the other aspects like nature and gravity of the offence etc. and also the adverse impact of the offence committed on the society. 10. Without detailed examination of evidence and elaborate discussions on the merits of the case but taking into account the oral as well as documentary evidence available on record against the petitioner relating to the commission of the offences under which charge sheet has been submitted, the nature and gravity of the accusation, the nature of supporting evidence, the severity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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