Charges for criminal breach of trust under IPC can coexist with cheating, provided mens rea is established, while violations under the PCMCS Act require demonstration of a specific scheme, which was lacking.

AMIT SHARMA, J.

1. The present petition under Section 482 of the Code of Criminal Procedure, 1973, (for short, ‘CrPC’), has been filed seeking the following prayers: -

“In view of the above, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to:-

(a) allow the present petition and set aside the order dated 8.2.2023 passed by the court of Ld ASJ-03, N/W, Rohini Courts Sh Babru Bhan in Cr Rev 331/2022 titled "Bhim Sain Arora & Ors versus State" in FIR No. 70/2019 P.S EOW U/S 406/409/420/120B IPC and Section 4/5/6 PCMS Act and discharge the petitioners;

(b) Call for the Trial Court records from the court of Ld CMM Sh Rohit Gulia in Cr Case No. 115/2020 titled "State Versus Bhim Sain Arora" in FIR No. 70/2019 P.S EOW u/s 409/420 IPC r/w 120B and Section 4/5/6 of Prize Chits and Money Circulation Schemes(Banning) Act;

(c) Pass any other further order as this Hon’ble court may deem fit and proper in the facts of the present case;”

2. In the present case, FIR No. 70/2019, under Sections 406/409/420/120B of the Indian Penal Code, 1860, (for short, ‘IPC’), and Sections 4/5/6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978, (for short, ‘PCMCS Act’) was registered at Police Station Economic Offences Wing, on the basis of the complaint filed by one Saurabh Gupta and 20 other complainants wherein, they alleged that Bhim Sain Arora (Petitioner No.1), Kanchan Arora (Petitioner No.2), his wife and Paras Arora, his son, (who was kept in Column No. 12 of the chargesheet) were known to them for last 20 years and they used to run a company in the name of Multicity Chit Fund Pvt. Ltd., Petitioner No.3/accused company, having its registered office in Gurugram, Haryana. It was alleged that the said persons, since inception, were operating their business of chit fund in Ashok Vihar, Delhi and were carrying their activities related to finance/public funds under various names/companies. It was further alleged that during the said period, the petitioners while acting in conspiracy had lured the complainants to invest/deposit the money with them under the pretext of running committeeswith the promise of good return at the time of maturity. It was further alleged that on further inducement by the petitioners, the complainants had also introduced their family members/relatives into various committees, chit fund schemes run by alleged persons/petitioners herein and they invested their hard earned money in the said schemes. Thus, in said manner, the petitioners have cheated the complainants to the tune of Rs. 3 Crores approximately for the sake of committee and deposit money for interest and Rs. 21,18,600/-, under the head of chit fund which were paid by the complainant via cash, cheques, RTGS transfer from time to time.

3. During investigation, statements under Section 161 of the CrPC were recorded of the victims/complainants and the relevant documents were obtained from them regarding their investment in the company of the petitioners and it was revealed that the petitioner No.1 used to run the business of chit fund/committee in 4-5 groups of approximately 20 members each. After going through the schemes floated by the petitioners, complainants had invested on his assurance in the said scheme, with alluring 15-28% return per annum and that interest used to remain with the petitioner No.1 for further capital appreciation and after some time, he used to add them into the funds of the investors which he held in lieu of interest. It was further revealed during investigation that on the assurance of the petitioners, complainants had invested in their company for the return of their payments whenever required, however, later the petitioners requested to extend further time to repay and further allure the complainants with good interest return,but till date they did not even repay the principal amount invested by the complainants. It was further revealed that initially the petitioners used to pay the interest regu