The central legal point established in the judgment is the consideration of the Banning of Unregulated Deposit Schemes Act, 2019 and its impact on the payment of interest in the context of a civil dispute.

JUDGMENT :

(Shree Prakash Singh, J.)

1. Heard Shri Vidhu Bhushan Kalia, learned counsel for the applicant as well as Mr. Anirudha Kumar Singh, learned A.G.A. appearing for the State and perused the record.

2. Instant bail application has been filed on behalf of the applicant with a prayer to release the applicant on bail during the trial in FIR No. 0457 of 2019, under Sections 409 and 420 IPC, Police Station -Vibhuti Khand, District - Lucknow.

3. Learned counsel appearing on behalf of the applicant submits that the applicant is innocent and he has been falsely implicated in the instant matter due to ulterior motive. He added that the instant matter is mainly a civil/commercial dispute and the complainant is trying to give it criminal colour. He further submitted that he is one of the Director of the company, namely, "Tulsiani Infra Developer Pvt. Ltd". He submits that in the year 2015, a Scheme was launched in the name of "Multistory Commercial Apartment" and thereafter a unit was agreed to be allotted to the present applicant. In view thereof, Rs.48,00,000/-were to be deposited by the applicant. He submits that as per the terms and conditions of the scheme, until and unless aforesaid unit was handed over, the Company was under obligation to pay the interest on the aforesaid amount. The amount of interest was being paid by the Company for sometime, but due to financial hardship, due to Pandemic 20202021, the Company could not pay the interest and thereafter the dispute arose. He added that with a view to settle the dispute, the cheques were also given to the informant. The bonafide act of the applicant shows that there was no criminal intent of the applicant to commit any cheat or fraud with the informant.

4. He further contended that in the year 2019, Union of India promulgated an Act, named as Banning of Unregulated Deposit Scheme Act, 2019 which was commenced since 21.02.2019. He referred Section 3 of the aforesaid Act, which are extracted as under;

"Section 3. Banning of Unregulated Deposit Schemes.

On and from the date of commencement of this Act,—

(a) the Unregulated Deposit Schemes shall be banned; and

(b) no deposit taker shall, directly or indirectly, promote, operate, issue any advertisement soliciting participation or enrolment in or accept deposits in pursuance of an Unregulated Deposit Scheme."

5. Referring the aforesaid, he submits that all the unregulated deposit scheme were banned by the aforesaid provisions and after the enforcement of the "Act 2019", the interest could not have been paid to the applicant.

6. He added that, in fact, a unit which was allotted to the informant, is under construction and he has placed photocopy of the under-construction building, namely, "Palacio Imperial White" and the same is taken on record and this shall remain part of the record.

7. He next added that, in fact, the criminal intent of the applicant is missing in the instant matter and the ingredients of Sections 409 and 420 do not attract.

8. Adding his arguments, he submits that, in fact, chargesheet has been filed but the Company has nowhere been made a party. He further added that as per settled proposition of law, without prosecuting the Company, the whole proceeding of the prosecution case shall vitiate in the eyes of law and in support of his submission, he has placed reliance on the judgment rendered in Sunil Bharti Mittal versus Central Bureau of Investigation, reported in (2015) 4 SCC 609 and has referred paragraphs 42, 43 and 44 of the aforesaid judgment. Abstract of the paragraphs 42, 43 and 44 is quoted below:

"42. No doubt, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal princi