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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH
M.G. Giratkar, J.
Krishnakant Chaganlalji Chandak - Appellant
Vs.
Through State Crime Investigation Department, District Nagpur - Respondent
Criminal Revision Application (Revn) No. 156 of 2018, 191 of 2018
Decided On : 15-03-2019
Maharashtra Protection of Interest of Depositors Act, 1999 - Section 3 - RBI Act - Section 58 - Companies Act - Indian Penal Code - Sections 420, 406 – Offence of cheating – Appeal against conviction - Imprisonment for a term - It is contended by accused Nos.1 and 2 that they are director and managing director respectively of public limited company known as Care Take Marketing Limited duly incorporated under the Companies Act - Complainant lodged a false complaint against them with Police Station alleging that they have received amount from the customers and agreed to pay commission royalty every month after completion of pyramid of thirty one customers - It is alleged in the report that the Company/accused Nos.1 and 2 failed to perform their promises and cheated complainant and other investors - On report of complainant offences punishable under Sections 420, 406 of the Indian Penal Code and also under the provisions of Maharashtra Protection of Interest of Depositors Act, 1999 and Section 58 of the RBI Act came to be registered against applicants - It is contention of accused Nos.1 and 2 that they have not cheated investors - Offence punishable under Section 3 of MPID Act and Section 58 of RBI Act are not applicable and therefore they pray for discharge - Accused Nos.3 and 4 have stated in application for discharge that accused Nos.1 and 2 are running the business - Accused Nos.3 and 4 used to sell grocery articles of company/accused Nos.1 and 2 - They are not involved in transaction - They are falsely made accused - Therefore they pray for discharge – Held, Learned Counsel for accused Nos.1 and 2 has pointed out above cited judgments and submitted that when there is no prima facie case to frame charge Court shall without any hesitation discharge accused - There is no dispute about proposition laid down in above cited authorities - Material brought on record more particularly report of investigation officer shows that accused Nos.1 and 2 have collected amount from customers - There is no entry in account of refund of said amount by accused Nos.1 and 2 – Therefore at this stage it prima facie appears that accused Nos.1 and 2 have collected huge amount from customers and not refunded same - Those amounts were collected by cheating customers saying that they will get commission per month and twenty-five per cent royalty after completion of pyramid of thirty-one customers - Accused Nos.1 and 2 prima facie collected huge amount and they are liable to be prosecuted - Though accused Nos.3 and 4 not personally accepted amount they sold commodities of company knowing well about scheme of company - As per Section 3 of MPID Act any other persons or employees responsible for management or conducting of business are also liable - Accused Nos.3 and 4 were conducting business of accused Nos.1 and 2 and therefore they are also liable to be prosecuted - All accused persons cheated customers by obtaining huge amount and not refunded same - Learned trial Court has recorded perfectly legal and correct findings - There is no perversity or illegality in the impugned order - Accused are at liberty prove their defense before trial Court – Revisions dismissed
M.G. Giratkar, J.
Both these revisions are against the order dated 21.04.2018 passed by the learned District Judge-7 and Additional Sessions Judge, Nagpur in Special MPID Case No. 22 of 2005 by which applications for discharge (Exhs. 28 and 35) came to be rejected.
2. Application for discharge (Exh.28) was filed by accused No.3-Vivek Vijaykumar Thakre and accused No.4 Yogesh Vijaykumar Thakare and another application for discharge (Exh.35) was filed by accused No.1-Krishnakant Chaganlalji Chandak and accused No.2- Manoj Chaganlalji Chandak.
3. It is contended by accused Nos.1 and 2 that they are the director and managing director respectively of public limited company known as "Care Take Marketing Limited" duly incorporated under the Companies Act. The complainant lodged a false complaint against them with Police Station, Wadi, Nagpur alleging that they have received amount from the customers and agreed to pay commission of Rs.12,000/- and 25 per cent royalty every month after completion of pyramid of 31 customers. It is alleged in the report that the Company/accused Nos.1 and 2 failed to perform their promises and cheated the complainant and other investors. On the report of complainant, offences punishable under Sections 420, 406 of the Indian Penal Code and also under the provisions of Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999 (hereinafter referred as MPID Act) and Section 58 of the RBI Act came to be registered against the applicants.
4. It is the contention of accused Nos.1 and 2 that they have not cheated the investors. Offence punishable under Section 3 of MPID Act and Section 58 of RBI Act are not applicable and, therefore, they pray for discharge.
5. Accused Nos.3 and 4 have stated in the application for discharge that accused Nos.1 and 2 are running the business. Accused Nos.3 and 4 used to sell the grocery articles of company/accused Nos.1 and 2. They are not involved in the transaction. They are falsely made accused. Therefore, they pray for discharge.
6. After hearing learned Counsel appearing on behalf of accused Nos.1 to 4, learned District Judge and Additional Sessions Judge, Court No.7, Nagpur, rejected both the applications.
7. Heard Shri Shekhar Jagtap, Advocate along with Shri A.M. Kukday, learned Counsel appearing on behalf of accused Nos.1 and 2 and Shri Firdos Mirza, learned Counsel appearing on behalf of accused Nos.3 and 4 and Shri B.M. Lonare, learned Additional Public Prosecutor appearing on behalf of the respondent/State.
8. Shri Jagtap, learned Counsel for accused Nos.1 and 2 submits that the proforma was to be filled by the customers. He has pointed out proforma filed at page No.75 of the compilation and submits that the customers are well aware about the conditions. The company has not cheated any of the customers. They were well aware about the scheme of the company. Learned Counsel has submitted that it is a style of business known as "Chain Marketing". There is nothing to show that the company has deceived any customer. Therefore, offence punishable under Section 420 of the Indian Penal Code and other offences are not attracted. He has pointed out Sections 2 and 3 of MPID Act and submitted that accused Nos.1 and 2 doing the business as per market practice and, therefore, offences registered against the applicants are not attracted.
9. Shri Jagtap, learned Counsel for accused Nos.1 and 2 further submitted that the account of the company is freeze by Akola Urban Cooperative Bank as per letter dated 09.09.2004. The said letter is in the compilation at page No.551. Learned Counsel has pointed out the chart which is marked as "X" for identification and submitted that all the customers have no grievance against the company. Some of the customers have grievance and they wanted action against the company. He has further submitted that as per the chart, company has refunded amount to the customers and some amount is to be refunded. Learned Counsel has sub
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