The court found that statutory knowledge exclusions apply if a director is not involved in day-to-day management, leading to a grant of anticipatory bail.

O R D E R

This bail application is filed under section 482 of the Bharatiya Nagarik Suraksha Sanhita , 2023 (for short ‘ BNSS ’).

2. Petitioner is the fourth accused in Crime No.1840/CB/KNR&

KSGD/D/2024 and Crime No.1219/CB/KNR&KSGD/R/2024 of both of CBCID, Kasargod, registered for the offences punishable under Sections 406 and 420 r/w Section 3 4 of the Indian Penal Code , 1860 (for short, ‘ IPC ’), and Section 3 r/w Section 21 and Section 5 r/w Section 23 of the BUDS Act , 2019. Initially, the crime was registered as FIR No. 1105 of 2023 of Chandera Police Station, Kasargod, which was later transferred to the Crime Branch for investigation.

3. The prosecution alleges that a company named Fashion Gold International Pvt. (Ltd) and its directors had induced the defacto complainant to invest in the business by promising a profit share and return of the amount invested on demand. On the basis of the said promise, the defacto complainant invested an amount of Rs.5,00,000/- on 05.12.2012, and thereafter, the accused failed to disburse any profit or return the amount and thereby committed the offences alleged.

4. The learned counsel for the petitioner contended that though petitioner was a Director of the Company, he had no role in the day to day affairs of the business nor did he have knowledge about the acceptance of the deposit from the defacto complainant. It was also submitted that in a statement filed before this Court in WP(Crl.) No. 551 of 2023, the Investigating Officer himself had stated that petitioner had not taken part in the day to day management of the accused company. The learned counsel further submitted that petitioner had been residing abroad and is himself a victim of the alleged fraud committed by the other as he had invested more than Rs.48 lakhs as a deposit in the company, which has also not been returned. The learned counsel submitted that petitioner is willing to abide by any condition that may be imposed.

5. The learned Public Prosecutor, on the other hand, submitted that the petitioner is a Director of the accused company, and as per section 25 of the BUDS Act , a statutory fiction is created making all those responsible and in charge of the deposit taker to be deemed to be guilty, and therefore custodial interrogation of the petitioner is necessary.

6. I have considered the rival contentions.

7. On a perusal of Section 25 of BUDS Act , it is noticed that though a statutory fiction is created that every person who was in charge of and responsible to the deposit taker for the conduct of business shall be deemed to be guilty, Subsection (2) provides for an exclusion if it is proved that the offence was committed without the knowledge of that person.

8. The statement filed by the Investigating Officer in WP(Crl.)

No.551 of 2023, indicates that the main persons who were responsible for and in charge of the business of the company were Sri.C.M.Kamaruddin, Sri.T.K.Pookkoya Thangal, Sri.Harris Abdulkhader, Sri Sainul Abiddi, and Sri.Isha Anjanakkadu.

9. Petitioner's name figures as serial number 14 in the said statement filed by the Investigating Officer. As far as persons other than those mentioned above, the Investigating Officer has mentioned that though they were named as Directors, persons other than those mentioned above were not part of the day-to-day management of the accused company.

10. The aforesaid statement of the Investigating Officer indicates that though petitioner was a Director of the company, prima facie he was not in charge of the day-to-day management of the business of the company. Since the said statement can enable the petitioner to come within the purview of the exclusion under Section 25 (2) of BUDS Act , at l