Madhya Pradesh High Court
Mantosh Baidh vs The State Of Madhya Pradesh Thr on 5 December, 2017
1 Mcrc.19703.2017
Mantosh Vaidya Vs. State of Madhya Pradesh
Gwalior, 05/12/2017
Shri Awadhesh Singh Tomar, learned counsel
for the applicant.
Shri Pramod Pachori, learned Public Prosecutor,
for the respondent/State.
Vide this application under Section 439 of the Code of Criminal Procedure, 1973, the applicant seeks bail.
The applicant is apprehended and is in jail since 21.09.2017 in respect of the Crime No.43/2016 registered at Police Station University, District Gwalior (M.P.) for an offence punishable under Section 420 of Indian Penal Code, Section 3(1) 2(4) of Madhya Pradesh Nikshepakon Ke Hiton Ka Sanrakshan Adhiniyam, 2000 [for brevity "the Act of 2000"] and Section 45-S/58B (5-A) of the Reserve Bank of India Act, 1934 [for brevity "the Act of 1934"] and under Section 4/5/6 of the Prize Chits And Money Circulation Schemes (Banning) Act, 1978 [for brevity "the Act of 1978"].
It is the contention on behalf of the applicant that he is innocent and at no point of time committed the offence for which he is charged. Learned Counsel led us through entire papers filed with the charge- sheet to bring home the submissions of innocence.
Learned Government Advocate on his turn has, however, contradicted the contention. It is submitted that the applicant was initially an agent of the company, viz., Real Sunshine Corp. Ltd since 1999, was made Director of the Company for some period between 14/10/2011 to 15/11/2011. It is urged that 2 Mcrc.19703.2017 Mantosh Vaidya Vs. State of Madhya Pradesh even if the applicant had later on resigned from the Directorship will not absolve him from the joint culpability in contributing to the economic activities contrary to the stipulations contained under the provisions of the Act of 2000, the Act of 1934 and the Act of 1978. It is urged that there being ample evidence on record which, prima facie, suggests applicant's involvement; and if he being a resident of West Bengal is released on bail there is a possibility of his influencing the prosecution witnesses which will cause prejudice to the prosecution case.
Heard at length.
Sub-Sections 1 and 2 of Section 3 of the Act of 2000 respectively mandate that every financial establishment, about its business in the area of jurisdiction of Competent Authority, shall intimate the Competent Authority to that effect. The financial establishment shall file a copy of each of such periodical statement to the Competent Authority as may be required to be filed, under any law, with any other supervisory authority including Securities and Exchange Board of India (SEBI) and Reserve Bank of India (RBI).
Sub-Section 4 of Section 3 of the Act of 2000 mandates that whosoever contravenes the provisions of this section, shall be punished with imprisonment which may extend to three months or with fine which may extend to one thousand rupees or with both.
That Section 45S of the Act of 1934 mandates that no person, being an individual or a firm or an unincorporated association of individuals shall, 3 Mcrc.19703.2017 Mantosh Vaidya Vs. State of Madhya Pradesh accept any deposit if his or its business wholly or partly includes any of the activities specified in clause (c) of section 45-I; or if his or its principal business is that of receiving of deposits under any scheme or arrangement or in any other manner or lending in any manner.
Section 58B lays down "Penalties", sub-section 5A whereof stipulates that if any person contravenes any provision of section 45S, he shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of deposit received by such person in contravention of that section, or two thousand rupees, whichever is more, or with both. Proviso of sub-section 5A to Section 58B further stipulates that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, the imprisonment shall not be less than one year and the fine shall not be less than one thousand rupees.
Section 4 of the Act of 1978 provides for penalty for contravening the provisions of section 3. It says that whoever contravenes the provisions of section 3 shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both: Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, the imprisonment shall not be less than one year and the fine shall not be less than one thousand rupees.
4 Mcrc.19703.2017 Mantosh Vaidya Vs. State of Madhya Pradesh Section 5 of the Act of 1978 provides for penalty for other offences in connection with prize chits or money circulation schemes. It says that whoever, with a view to the promotion or conduct of any prize chit or money circulation scheme in contravention of the provisions of this Act or in connection with any chit or scheme promoted or conducted as aforesaid, prints or publishes any ticket, coupon or other document for use in the prize chit or money circulation scheme; or sells or distributes or offers or advertises for sale or distribution, or has in his possession for the purpose of sale or distribution any ticket, coupon or other document for use in the prize chit or money circulation scheme; or prints, publishes or distributes, or has in his possession for the purpose of publication or distribution- (i) circulation scheme; or (ii) the prize chit or money circulation scheme; or
(iii) relating to the prize chit or money circulation scheme as is calculated to act as an inducement to persons to participate in that prize chit or money circulation scheme or any other prize chit or money circulation scheme; or brings, or invites any person to send, for the purpose of sale or distribution, any ticket, coupon or other document for use in a prize chit or money circulation scheme or any advertisement of such prize chit or money circulation scheme; or uses any premises, or causes or knowingly permits any premises to be used, for purposes connected with the promotion or conduct of the prize chit or money circulation scheme; or causes 5 Mcrc.19703.2017 Mantosh Vaidya Vs. State of Madhya Pradesh or procures or attempts to procure any person to do any of the above-mentioned acts, shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both: Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, the imprisonment shall not be less than one year and the fine shall not be less than one thousand rupees.
Section 6 of the Act of 1978 says:
"6. Offences by companies-
(1) Where on offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, 6 Mcrc.19703.2017 Mantosh Vaidya Vs. State of Madhya Pradesh manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation-For the purposes of this section-
(a) "company" means any body corporate and includes a firm or other association of individuals; and
(b) "director" in relation to a firm, means a partner in the firm."
In the case at hand, in view of the provisions whereunder the applicant is tried and the cogent material documents on record that the applicant was the part of a syndicate operating the company, namely, Real Sunshine Corp. Ltd; the applicant cannot be absolved of joint culpability.
In view of these facts and circumstances, we are not inclined to extend the benefit of bail to the applicant.
Consequently, the application stands rejected.
(Sanjay Yadav) (S.K. Awasthi)
Judge Judge
pd
PAWAN
DHARKAR
2017.12.07
14:43:54 -08'00'