Andhra Pradesh High Court - Amravati
Procedure Code ('Cr.P.C.' In Short) vs State Of Andhra Pradesh on 1 September, 2022
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HON'BLE SRI JUSTICE RAVI CHEEMALAPATI
CRIMINAL PETITION No. 6345 of 2022
ORDER:
This Criminal Petition is filed under Section 438 of Criminal Procedure Code ('Cr.P.C.' in short), seeking pre arrest bail, by the petitioner/A-1, in Crime No.122 of 2022 of Kurnool II Town Police Station, Kurnool District, registered for the offence punishable under Section 420 324, of the Indian Penal Code (for short, 'IPC') and Section 5 of the Andhra Pradesh Protection of Depositors of Financial Establishments Act (for short, APPDFE Act) r/w. 34 of IPC.
2. The case of the prosecution, in brief, is that the de facto complainant and her husband joined as subscribers of a private chit run by the petitioner/ A-1 and her wife/A-2 and contributed for three chits for of the value Rs.5,00,000/- for 40 months with monthly subscription of Rs.12,500/- and they have paid 30 instalments and having learnt that the petitioner/A-1 and his wife were not prompt in paying the chit amount to the successful bidders, they participated and became the successful bidder of the chit in 31 st month and A-2 paid the chit amount of Rs.3,29,875/- and subsequent thereto the petitioner and his wife 2 stopped conducting auction of the chit and whenever the de facto complainant and her husband demanded them to pay the amount subscribed by them towards two other chits, which came to Rs.8 lakhs, they postponed the repayment for some time and ultimately did not pay any amount and thus cheated the de facto complainant and others.
3. Heard Sri Devarayulu B.M., learned counsel for the petitioner/ A-1, and Sri Soora Venkata Sai Nath, learned Special Assistant Public Prosecutor for the respondent-State.
4. Sri Devarayulu B.M., learned counsel for the petitioners, would submit that the contents of the FIR do not disclose any offence since the contents would go to show that the offence involved is regarding a chit transaction, at the best the special enactment regulating chit fund transactions i.e. the provisions of A.P.Chit Fund Act would only apply but not the provisions of Section 5 of the APPDFE Act.
He would further submit that the petitioner/A-1 is an employee in Government Printing Press and the contents of the FIR would make it clear the petitioner/A-1 was shown as an accused along with his wife/ A-2, only to exert pressure on him and to see him out of employment.
He would further submit that except the oral assertions of the de facto complainant, no material whatsoever has been placed on 3 record to show conduct of private chit business either by the petitioner/A-1 or his wife/A-2.
He would further submit that, earlier the petitioner got filed applications vide Crl.M.P.Nos.589, 745 and 796 of 2022 for grant of pre arrest bail and the learned Sessions Judge dismissed them on 13.06.2022, 12.07.2022 and 10.08.2022 respectively on the ground that the petitioner has been absconding from the date of registration of the crime and his presence is required for obtaining specimen signatures and seize documents.
He would further submit that the co-accused/A-2 has been granted bail by the learned Special Sessions Judge, Kurnool on 30.06.2022. He would further submit that the petitioner/A-1 is an employee and he would not flee from justice and he would abide by any conditions imposed by this Court and further the petitioner would cooperate with the investigation and he would not tamper with the prosecution evidence and in case the petitioner is arrested he will be thrown out of his employment and would be put to irreparable loss and hardship.
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On the above contentions, the learned counsel for the petitioner prayed to allow the petition and grant pre arrest bail to the petitioner/ A-1.
5. On the other hand, Sri Soora Venkata Sainath, learned Special Assistant Public Prosecutor, would submit that the co-accused/A-2 was granted regular bail and thus the same cannot be equated to the relief sought for by the petitioner/A-1 for grant of pre arrest bail.
The learned Special Assistant Public Prosecutor would further submit that though the petitioner/A-1 is a Government employee, he is indulged in running private chits and thus he is liable for punishment under the provisions of APPDFE Act. He would further submit that A.P. Chit Fund Act nowhere provides for punishment for running unauthorized chits and thus the facts of the case on hand squarely fall within the purview of the provisions of APPDFE Act. Thus, there is no merit in the contention of the learned counsel for the petitioner/A-1 that the provisions of A.P.Chit Fund Act are only applicable but not the provisions of the A.P.Chit Fund Act.
The learned Special Assistant Public Prosecutor, in support of his contention regarding applicability of the provisions of the APPDFE Act to 5 the facts of the present case, has relied on the decision in V. Revathi vs. State of Andhra Pradesh1.
The learned Special Assistant Public Prosecutor would further contend that if the petitioner is granted pre arrest bail, he would not cooperate with the investigation and tamper with the prosecution evidence.
On the above contentions, the learned Special Assistant Public Prosecutor opposed the bail application and prayed to dismiss the petition.
6. In the decision referred to above relied on by the learned Special Assistant Public Prosecutor, the High Court of Andhra Pradesh when it was at Hyderabad, at paras-15 and 18 held as follows:
"15. It is contended for the appellant that there are special enactments regulating chit fund transactions and that therefore the provisions of the 1999 Act cannot be applied to a chit fund transaction. Though the Andhra Pradesh Chit Funds Act, 1971 (In short, the 1971 Act) and the Chit Funds Act, 1982 (In short, the 1982 Act) are there for regulation of chit fund transactions, the 1999 Act is again a special enactment which was enacted for protection of depositors of financial establishments. Statement of objects and reasons appended to the 1999 Act reads as follows:
"Instances have come to the notice of the State Government, wherein a number of unscrupulous financial establishments in the State are cheating innocent, gullible depositors by offering very attractive rates of interest collecting huge deposits and then vanishing suddenly. The depositors are being cheated and are put 1 .2011 SCC OnLine 1161 6 to grave hardship by losing their hard earned savings. To curb these malpractices, the State Government have decided to bring a law for protecting the interests of depositors of financial establishment in the State and for matters connected therewith or incidental thereto. The above issue was also discussed in a Conference of the State Chief Ministers and Finance Ministers presided by the Union Finance Minister on 14.9.1998 at Vignan Bhavan, New Delhi. The Union Finance Minister also desired that States should take expeditious steps for enacting legislation on the lines of "Tamilnadu Protection of Interests of Depositors (in Financial Establishments) Act, 1997, "to restore the confidence amongst the innocent depositors and also to serve as a deterrent against malpractices by such establishments during the course of acceptance of public deposits.
To achieve the above object, the Government have decided to make a separate law by undertaking legislation".
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18. There is no penal provision under the 1971 Act providing for punishment incase of 'default' committed by organizer/foreman of the chit by not paying prize amount to the successful highest bidder or in case the organizer/foreman of the chit absconds by discontinuing the chit during the course of its currency and by not repaying or refunding the subscription amounts already collected from the members. The 1971 Act predominantly deals with regulatory measures for starting chit fund business, for commencement of a chit and running of the chit till the end of the chit period. In case, the organizer/foreman of the chit commits 'default', no penal remedy is prescribed and no penal liability is attached to such organizer/foreman of the chit under the 1971 Act. Similarly, even if the 1982 Act comes into force, it also does not contain any provision dealing with penal remedy against organizer/foreman of the chit and attaching penal liability for 'default' committed by such organizer/foreman of the chit. Therefore, I have no hesitation to conclude that the 1999 Act is equally applicable in the case of a chit fund transaction also in addition to applicability of the existing 1971 Act and also the 1982 Act as and when it comes into force."
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The above decision in clear and unambiguous terms says that the provisions of APPDFE Act, 1999 are equally applicable in case of chit transaction also in addition to applicability of Chit Fund Act.
7. Perused the record, considered the submissions made by both the learned counsel and also the decision relied on by the learned Special Assistant Public Prosecutor. Though there is no force in the contention of the learned counsel for the petitioner/A-1 regarding non- applicability of provisions of APPDFE Act to the chit fund transactions, considering the fact that the co-accused/A-2 was granted bail by the Special Sessions Judge, Kurnool and further keeping in view his avocation as a Government employee and thus the possibility of his fleeing away from justice are too remote, this Court is inclined to grant bail to the petitioner/A-1, however, by duly taking into consideration the apprehensions of the learned Special Assistant Public Prosecutor, by imposing the following conditions:
(i) The petitioner/A-1 shall be released on bail on his executing self bond for Rs.25,000/- (Rupees twenty five thousand only) with two sureties for a like sum each to the satisfaction of the Station House Officer, Kurnool II town Police Station, in the event of his arrest in connection with Crime No.122 of 2022 of Kurnool II-Town Police Station, Kurnool District;8
(ii) The petitioner shall appear before the Station House Officer, Kurnool II Town Police Station once in a week i.e. on every Sunday between 10.00 a.m. and 12.00 noon, till filing of the charge sheet;
(iii) The petitioner shall not directly or indirectly contact the complainant or any other witnesses under any circumstances and any such attempt shall be construed as an attempt of influencing the witnesses and shall not tamper the evidence and shall co-operate with the investigation.
Further, the petitioner shall scrupulously comply with the above conditions and breach of any of the above conditions will be viewed seriously and bail automatically gets cancelled without any further order of this Court.
Accordingly, the Criminal Petition is allowed. As a sequel, pending miscellaneous petitions shall stand closed.
________________________________ JUSTICE RAVI CHEEMALAPATI Dated: 01.09.2022.
RR 9 THE HONOURABLE SRI JUSTICE RAVI CHEEMALAPATI ALLOWED CRIMINAL PETITION NO.6345 of 2002 Date : 01.09.2022 RR