Canvassing for deposits does not establish liability under Section 5 of the TNPID Act without evidence of management responsibility.

ORDER :

The Criminal Revision challenges the dismissal of the petition in Crl.M.P.No.634 of 2021, filed by the petitioner/A3, under Section 239 of Cr.P.C., seeking discharge from the case in C.C.No.10 of 2020 by the learned Special Judge, under the Tamil Nadu Protection of Interest of Depositors and Financial Establishment Act, 1997, Chennai, vide order dated 15.09.2022.

2. It is the case of the prosecution that the petitioner/A3 along with her husband was running an entity called 'Om Sakthi Chit Fund' and received deposits from 77 depositors to the tune of Rs.2,50,15,900/- and defaulted in repayment of chit amount and thereby, committed the offence under Section 5 of the TNPID Act. The petitioner/A3, sought for discharge before the trial Court on various grounds, which was dismissed by the order dated 15.09.2022, against which the present revision has been filed.

3.(i) Mr.V.C.Janardhanan, the learned counsel for the petitioner submitted that the prosecution had stated that the 1st accused was not registered either before the Registrar of Companies or Registrar of Chit Fund; that it has referred to the 1st accused as a partnership firm, without any basis; and that therefore, the allegation that the petitioner was in-charge and responsible for the conduct of the business of the 1st accused, is not legally sustainable.

(ii) The learned counsel further submitted that since the prosecution had failed to establish that the 1st accused is a partnership firm, the question of vicarious liability of the petitioner would not arise; that if there is no vicarious liability on the petitioner, the overt act of the petitioner has to be assessed independently; and that the allegation against the petitioner is that she had collected deposits on behalf of the 1st accused which were deposited in the account maintained by the 2nd accused.

(iii) The learned counsel for the petitioner relied upon the judgment of this Court in Tmt.Prasannadevi v. State of Tamil Nadu reported in 2009 (3) MWN (Cr.) 32, in support of the submission that where a person is not a partner in a financial institution and happens to be a wife of the main accused, she cannot be prosecuted only because, she had assisted her husband in canvassing deposits.

(iv) The learned counsel therefore, submitted that there is no prima facie case against the petitioner to direct her to face the trial.

(v) The learned counsel for the petitioner further submitted that there is nothing on record to show that the petitioner had signed any documents relating to any of the 1st accused entity, in order to establish that she also participated in the collection of deposits.

(vi) The learned counsel further submitted that in the event of this Court disagreeing with the view taken in Prasannadevi's case [cited supra], this Court may refer the issue to a larger Bench.

4 (i) Mr.S.Udaya Kumar, the learned Government Advocate (Cri. Side) per contra submitted that the final report shows that the petitioner is a partner of the 1st accused entity; and that both the petitioner and her husband received deposits to the tune of Rs.2,50,15,900/- and therefore, a prima facie case is made out and in any case, there is grave suspicion against the petitioner and pointed out to Section 161 Cr.P.C., statements of one Sathish Kumar and one Mahendra Kumar, to show that the petitioner is also involved in the offence.

(ii) The learned Government Advocate (Crl.Side) relied on the judgment in New Horizon Sugar Mills vs. Government of Pondicherry, reported in 2012 (10) SCC 575, wherein the Hon'ble Supreme Court at paragraph Nos.15 and 16, held as follows:

“15. Mr. Ganguli urged that the Tamil Nadu Act dealt with the protection of deposits made by the public in the f