Punjab-Haryana High Court
Amarjeet Singh Cheema Alias Amardeep ... vs State Of Punjab on 9 May, 2024
218
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-1355-2024
2024
Date of Decision: May 09, 2024
AMARJEET SINGH CHEEMA ALIAS AMARDEEP SINGH CHEEMA
........Petitioner
Versus
STATE OF PUNJAB ........Respondent
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present:Mr. PKS Phoolka, Advocate for the petitioner.
Mr. Rahul Jindal, AAG, Punjab.
****
HARKESH MANUJA,
MANUJA J. (ORAL)
By way of this third petition filed under section 438 of C CrPC, rPC, prayer has been made for grant of anticipatory bail to the petitioner in n case bearing FIR No.269 No. dated 15 11.2018, registered under Section Sections s 420/120-B of IPC at Police Station, Civil Lines, Bathinda District Bathinda, wherein, the petitioner has been alleged to have induced individuals for investing money in the company, namely GCA marketing Private Ltd. (hereinafter (h referred to as 'the the Company Company') assuring them hem higher returns that too, without obtaining certificate of registration for operating such scheme and even having fail failed to refund their amounts.
2. Learned counsel for the petitioner submit submits that there was no dishonest intent on the part of the petitioner petitioner at the time of inception of the scheme. He also pointed out that separate proceedings against the Company as well as its Directors under the provisions of Security and Exchange Board Of India Act 1992 (hereinafter referred to as 'SEBI Act') were initiated initiated and at present a complaint under Sections 190, 200 TEJWINDER SINGH 2024.05.14 10:55 I attest to the accuracy and integrity of this document CRM-M-1355-2024 2- CrPC read with Section 26-B and 26-E of Securities and Exchange Board of India Act, 1992 was pending with the competent authority at Delhi, and therefore the registration of FIR in hand was total misuse of process of law against the petitioner and thus, he deserves the concession of anticipatory bail.
3. On the other hand, learned State counsel, vehemently opposes the prayer made herein while submitting that petitioner without obtaining any sanction or approval from SEBI collected money from innocent persons in the entire State of Punjab under the assurance of providing them higher returns, however, failed to return their investments. He also points out that the intent of petitioner and other accomplices right from day one was to defraud investors as none of the directions issued by the SEBI vide its orders dated 30.12.014 and 04.02.2016 or even the order dated 19.01.2017 passed by the Securities Appellate Tribunal, Mumbai were ever adhered to, and thus, the petitioner does not deserve the concession of anticipatory bail.
4. I have heard counsel for the parties and gone through the paper-book.
5. A perusal of the record shows that undoubtedly, the petitioner happens to be the Director of the Company, which under his guidance and control, collected huge amounts approximately amounting to Rs.928 crores from the innocent investors having induced and allured them of higher returns without there being any prior approval from the SEBI for the purpose of running any such scheme. The investments received from the individuals were received and used in a fraudulent TEJWINDER SINGH 2024.05.14 10:55 I attest to the accuracy and integrity of this document CRM-M-1355-2024 -3- manner and despite repeated orders from SEBI rather than returning the amounts. Prima facie, presence of dishonest intent on the part of the petitioner cannot be ruled out as from the records it is apparent that no effort at all, was ever made either to provide any inventory of the assets raised by the company through such money nor even the amounts of the investors were refunded, despite their being repeated directions issued by the SEBI vide its orders dated 30.12.2014 and 04.02.2016. Relevant paragraphs in this regard from the aforementioned orders are reproduced hereunder:-
Order dated 30.12.2014 (Para 16) "16. In view of the above, I, In exercise of the powers conferred upon me under Sections 11 (1), 11B and 11(4) of the SEBI Act read with CIS Regulations and PFUTP Regulations hereby direct G.C.A. Marketing Private Limited (CIN:U52599PB2005PTC28378) and its Directors Shri Amarjeet Singh Cheema (PAN-ADEPC5281C) and Shri Gurdeep Singh (PAN-
BIVPS7069D) :
. not to collect any fresh money from investors under its existing schemes; . not to launch any new schemes or plans or float any new companies to raise fresh moneys;
. to immediately submit the full inventory of the assets obtained through money raised by GCA;
. not to dispose of or alienate any of the properties/assets obtained . not to divert an yfund raised from public at large which are kept in bank account(s) and/or in th custody of GCA;
. to furnish all the information/documents sought by SEBI within 15 days from the date of receipt of this order, including:
(i) Details of amount mobilized and refunded till date or certified by statutory auditor of GCA and
(ii) Scheme wise list of investors and their contact numbers and addresses."
Order dated:04.02.2016 (Para 21) "21. In view of the observations made in this Order, I, in exercise of the powers conferred upon me under Section 19 of the Securities and Exchange Board of India Act, 1992 and Sections 11(1), 11B and 11(4) thereof and Regulation 65 of the SEBI (Collective Investment Schemes) Regulations, 1999, hereby issue the following directions:
TEJWINDER SINGH 2024.05.14 10:55 I attest to the accuracy and integrity of this document CRM-M-1355-2024 4-
a. G.C.A. Matketing Private Limited [CIN: U52599PB2005PTC28378],
Mr. Amardeep Singh Cheema [PAN: ADEPC5281C] and Mr. Gurdcep Singh [PAN:BIVPS7069D] shall abstain from collecting any mcney from the investors or launch or carry out any Collective Investment & schemes including the scheme which have been identified as a Collective Investment Scheme in this Order.
b. G.C.A. Marketing Private Limited, Mr. Amardeep Singh Cheema and Mr. Gurdeep Singh shall wind up the existing Collective Investment Schemes and refund through Bank Demand Draft' or Pay Order', the money collected by the said company under the schemes with returns which are due to its investors as per the terms of offer within a period of three months from the date of this Order and thereafter within a period of fifteen days, submit a winding up and repayment report to SEBI in accordance with the SEBI (Collective Investment Schemes) Regulations, 1999, including the trail of funds claimed to be refunded, bank account statements indicating refund to the investors and receipt from the investors acknowledging such refunds.
In case the Company has made refunds as claimed in its submission, it shall produce the proof for such repayment as directed above and also submit a certificate from Chartered Accountant as directed in sub-paragraph (d) below.
c. G.C.A. Marketing Private Limited, Mr. Amardeep Singh Cheema and Mr. Gurdeep Singh shall not alienate or dispose off or sell any of the assets of G.C.A. Marketing Private Limited except for the purpose of making refunds to its investors as directed above. d. After completing the aforesaid repayment in terms of sub- paragraph (b) above, the Company shall file a certificate of such completion with SEBI, within a period of 15 days, from two independent peer reviewed Chartered Accountants who are in the panel of any public authority or public institution. For the purpose of this Order, a peer reviewed Chartered Accountant shall mean a Chartered Accountant, who has been categorized so by the Institüte of Chartered Accountants of India (ICAI). e. G.C.A. Marketing Private Limited, Mr. Amardeep Singh Cheema and Mr. Gurdeep Singh are also directed to provide a full inventory of all their assets and properties and details of all their bank accounts, demat accounts and holdings shares/ securities, if held in physical form. f. G.C.A. Marketing Private Limited, Mr. Amardeep Singh Cheema and Mr. Gurdeep Singh are restrained from accessing the securities market and are prohibited from buying, selling or otherwise dealing in securities market for a period of four (4) years. g. In the event of failure by G.C.A. Marketing Private Limited, Mr, Amardeep Singh Cheema and Mr. Gurdeep Singh to comply with the above directions, the following actions shall follow:
TEJWINDER SINGH 2024.05.14 10:55 I attest to the accuracy and integrity of this documentCRM-M-1355-2024 5-
- G.C.A. Marketing Private Limited, Mr. Amardeep Singh Cheema and Mr. Gurdeep Singh shall remain restrined from accessing the securities market and would further be prohibited from buying, selling or otherwise dealing in securities, even after the period of four (4) years of restraint imposed in paragraph 21(1) above, till all the Collective Investment Schemes of G.C.A. Marketing Private Limited are wound up and all the monies mobilized through such schemes are refunded to its investors with returns which are due to them.
- SEBI would make a reference to the State Government/ Local Police to register a civil/ criminal case against G.C.A. Marketing Private Limited, its promoters, directors and its managers/ persons in-charge of the business and its schemes, for offences of frud, cheating, criminal breach of trust and misappropriation of public funds; and
- SEBI would make a reference to the Ministry of Corporate Affairs, to initiate the process of winding up of the company, G,C.A. Marketing Private Limited.
- SEBI shall initiate attachment and recovery proceedings under the SEBI Act and rules and regulations framed thereunder"
6. Still further, the Securities Appellate Tribunal, Mumbai on an appeal moved at the instance of the Company granted another two weeks' time to comply with the aforementioned directions for providing inventory of assets gained by the Company as well as return of the investments besides other directions vide its order dated 19.01.2017, however, the same was also not complied with, from which a prima facie inference can be drawn regarding the intent of the petitioner as it was only to dupe the poor investors in one way or the other without even following the process of law as well as orders passed by the authorities under the SEBI Act.
7. Further, the reliance placed upon by learned counsel for the petitioner as regards pendency of complaint under Sections 190, 200 of TEJWINDER SINGH 2024.05.14 10:55 I attest to the accuracy and integrity of this document CRM-M-1355-2024 6- CrPC read with Sections 26-B and 26-E of SEBI Act against the petitioner as well as the Company and one of its Directors at the instance of SEBI pending before the competent Court at Delhi is wholly misplaced. The said complaint merely relates to the violation of Section 12(1B) of SEBI Act read with Regulation 3 of Securities And Exchange Board Of India(Collective Investment Schemes) Regulations, 1999 and Section 4(2)(1) of Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 2003 punishable under Section 24(1) read with Section 27(1) of SEBI Act which primarily was connected with the permission being not obtained by the Company before initiation of the investment scheme. The aforesaid complaint had nothing to do with the fraudulent intent of the petitioner and the other Directors of the Company having induced the poor individuals about investment of their hard-earned money in the Company and having diverted the same towards the purchase of assets by the company, without even returning of single penny, despite the repetitive directions being issued by the SEBI .
8. Additionally, in order dated 04.02.2016 issued by the SEBI, in subpara (g) of para 21, there was a specific direction to register 21 persons who were incharge of the business of the company for offences of fraud, cheating, criminal breach of trust and misappropriation of public funds. It is in pursuance of the reference received from the SEBI that the present FIR has been registered against the petitioner and other accomplices. Therefore, it cannot be denied that custodial interrogation of the petitioner would be necessary to ascertain the TEJWINDER SINGH 2024.05.14 10:55 I attest to the accuracy and integrity of this document CRM-M-1355-2024 7- modus operandi employed by the company and its officials. This will also help the investigating agency to extract crucial information regarding the methods utilized to divest funds collected from individuals.
9. Resultantly in view of the cumulative analysis of the facts and circumstances and the discussions made here-in-above and also in order to further the cause of fair and just investigation, the petitioner does not deserve the concession of discretionary relief of anticipatory bail as it may encourage his dishonest intent as well.
09.05.2024 (HARKESH MANUJA)
Tejwinder JUDGE
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
TEJWINDER SINGH
2024.05.14 10:55
I attest to the accuracy and
integrity of this document