IMPORTANT POINT
Charges in criminal proceedings must be clear and based on the complaint's contents to ensure the accused's right to a fair trial.

JUDGMENT :

Shampa Dutt (Paul), J.

1. The present revision has been preferred praying for quashing and setting aside of the order dated 17.01.2020, passed by the Learned 5th Special Court at Calcutta, thereby framing charges as against the Petitioners in respect of several alleged offences, which have not been alleged in and are beyond the scope of the complaint and the report filed by the investigating agency in connection with Complaint Case No. SEBI 10 of 2017.

2. It is the case of the petitioners that the respondent SEBI initiated the said criminal proceeding being Complaint Case No. SEBI 10 of 2017, as against the Petitioners by submitting a complaint by mechanically incorporating Sections 56, 60 and 70 read with Section 2(36), 73 of the Companies Act, 1956 read with Section 465 of the Companies Act, 2013 and the SEBI (Discloser and Investors Protection) Guidelines 2000 read with SEBI (Issue of Capital and Discloser Requirement) Regulations 2009. The aforesaid offences are punishable under Section 24 and 27 of the SEBI Act 1992 and also offences under Section 26A, 26B, 26C of the SEBI Act 1992 and also under Section 11, 11A and 11B of the SEBI Act 1992 read with Section 24 and 27 of the SEBI Act 1992 and also offences punishable under Section 24 and 27 of the SEBI Act 1992.

3. It is also the case of the Petitioners that vide order passed on 17.01.2020, the Learned 5th Special Court at Calcutta framed charges against the Petitioners herein under Sections 56, 60 read with Section 2(36), 55A, 67, 68, 70, 73, 117(B), 117(C), of the Companies Act, 1956 read with Section 40 of the Companies Act, 2013 and Section 6 of the General Clauses Act 1857 in violation of Section 12(1) of the SEBI Act, 1992, and violation of Regulation 3 of the SEBI (PFUTP) Regulations, Regulations 4(2), 4(4), 5(2), 6-9, 12-17, 19, and 26 of the SEBI (IDLS) Regulations, 2008 which is punishable under Section 56(3), 60(5), 70(4), 73(1A), 117C(5) and 629A of the Companies Act 1956 and under Section 24(1), 24(2), 27 of the SEBI Act 1992 in a mechanical manner, without applying its judicial mind and without even considering whether the offences alleged by SEBI as against the Petitioners could even remotely be contributed in the instant case given that the factum of the alleged complaint does not, even tenuously, reveal commission of such offences by the Petitioners.

4. Hence, the revision.

5. The Opposite Party (SEBI) has used an affidavit-in opposition, Wherein, the prima facie allegations as stated in the petition of complaint is being reproduced as here for convenience:-

“8. That before dealing with the averments made in the said application in a more detailed manner, the prima facie allegation stated in the petition of complaint are stated herein below:-

a. SEBI had conducted an examination with respect to illegal fund mobilization and observed that Aspen Projects India Limited (hereinafter referred to as 'APIL') from 2009-10 to 2011-12 raised Rs. 14.90 crores as secured redeemable debenture and from 2010-2011 and Rs.76.1 Lakhs during 2011-2012 through the issue of redeemable preference shares, without complying with the regulatory provisions applicable to a public issue.

b. APIL had made public issue of shares without filing any offer document or statement in lieu of prospectus against such public issue. Whenever an offer is made by an entity to fifty or more persons, it is deemed to be a public issue and such entity are bound to comply with the disclosure requirements of SEBI. The Hon’ble Supreme Court of India in the matter of Sahara India Real Estate Corporation Limited & Others vs. SEBI and another [(Civil Appeal Nos. 9813 and 9833 of 2011 decided on August 31, 2012) ('the Sahara case")] had inter alia held that –

“Section 67(1) deals with the offer of shares and debentures to the public and Section 67(2) deals with invitation to the public to subscribe for shares and debentures and how those expressions are to be understood, when reference is made to the Act