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IN THE HIGH COURT OF
DELHI AT NEW DELHI
BAIL APPLICATION No.
_______ OF 20___.
IN THE MATTER OF :-
MR.XXXXXXXXXX
S/o Sh._________________,
R/o__________________
_____________________,
Delhi-1100___.
:
APPLICANT
VERSUS
(NCT
OF DELHI) :
RESPONDENT
FIR No. _________
U/s.: 406 IPC
Sec. 4/11/76 Chit Fund Act
3/4/5/6 PC&MC Act
P.S.: ___________
ANTICIPATORY BAIL APPLICATION UNDER
SECTION 438 OF THE CODE OF CRIMINAL PROCEDURE ON BEHALF OF THE APPLICANT NAMELY
MR. XXXXXX XXXXXX FOR GRANT OF ANTICIPATORY BAIL IN F.I.R No. XXXXXX UNDER
SECTION 406 OF I.P.C. R/W SECTION 4/11/76 OF CHIT FUNDS ACT, AND SECTION
3/4/5/6 OF PRIZE CHITS AND MONEY CIRCULATION SCHEMES (BANNING) ACT, 1978 REGISTERED
WITH THE POLICE STATION MANGOL PURI, DELHI.
THE CHIEF JUSTICE OF DELHI HIGH
COURT AND HIS COMPANION JUDGES OF THE SAID COURT.
The humble application of
the
above named Applicant
MOST
RESPECTFULLY SHOWETH:-
1.
That the Applicant who is
a reputed business man and the owner of M/S XXXXX Jewellers and the law abiding
citizen having deep
roots in the society. He is filing the present application for
anticipatory bail under Section 438 R/w Section 482 CrPC.
2.
That the Applicant
has been constrained to file the present application for the grant of
anticipatory bail in a FIR No. XXXXXXXX U/s 406
IPC, 4/11/76 Chit Fund Act & 3/4/5/6 Prize Chits &money Circulating Act,
registered with P.S.XXXXXXXX , Delhi. Copy
of FIR No. XXXXX is annexed as Annexure
P-1. Pertinently, the complainant filed the Complaint under Section 156(3)
CrPC before the Ld. M.M.-05, XXXXX Distt. XXXXX Courts, Delhi and same was allowed
vide order dated 20.03.2021 and the said complaint was converted into the
present FIR wherein the name of the applicant was mentioned. The copy of order
dated 20.03.2021 passed by the Ld. M.M.XXXXXX , Delhi is annexed as Annexure P-2.
3.
That the brief
facts of the prosecution case are as under:
A.
It is the case
of the prosecution that the complainant No.1 MR. XXXXXXX and Complainant No.2
MR. XXXXX, Prop. of M/s XXXX Jewellary
House at_______________, Delhi 1100__ has lodged the F.I.R against the
applicant on 02/02/2022 at 00.45 in respect of failure of delivery of purchased
items dated 27.12.2017 and against the amount of Rs.83,25,00/- invested by the
complainant no.1 and his relatives in the chit funds with were run by the
applicant’s Husband.
B.
It is further case
of the complainant that he was engaged in the business of jewellery as
Goldsmith and is running his shop under the name & Style of M/s XXXXX Jewellery
House and Mr. XXXXX was also engaged in the same business of Goldsmith and was
having business relation with the complainant.
C.
It is further case
of the complainant that during the business relations between Pawan Kumar and
the complainant the payments were done via RTGS/NEFT & cheque etc. for
orders.
D.
It is further case
of the complainant that Mr. XXX have supplied the gold jewellery to my client
of 158.87 Gin vide invoice No._____ dt.16.08.2017 for Rs.4,49,99.28/- including
the SGST & CGST. The complainant has made the payment of sum of 4,55,00 on
06.09.2017 through RTGS of Bank A/c No.______________ of XXXX Bank Ltd. Branch,
XXX , Delhi. Afterwards the complainant has placed the order for further
jewellery to the Applicant and the complainant to deposit the advance payment
of 3,50,000/- through RTGS of the same bank dated 27.12.2017 via which the
complainant has made total payment of 8,05,000/- to MR. XXXX. Thereafter the
complainant didn’t received the jewellery according to the complainant and
after the reduction of jewellery of the jewellery amount of 4,49,999.28/- from
the total payment of 8,05,000/-, the sum of 3,55,000.72/-remains outstanding on
the part of applicant’s father and so the complainant seeks to get the payment
left with the interest @24% p.a from the date of payment made i.e 27.12.2017 till
date.
E.
It is further
case of the complainant that meanwhile the complainant no.1 and complainant
no.2 also invested substantial amount in the Chit Fund being run by the Durga
M/s XXXXX Jewellers (applicant’s office) having office at________________, Delhi-1100__
as they were assured high returns on investment.
F.
It is further
case of the complainant that the complainant knowing about the risks involved
and assurance provided invested a huge amount after due inquiry, as they didn’t
found any ground of suspicion about the said chits.
G.
It is further
case of the complainant that the complainant No.1 & Complainant No.2 in
addition of 3,50,00 paid by RTGS, also made cash payment amounting to
83,25,000/- representation
made by Mr.XXX The Complainant no.1
namely, XXX XXXX alongwith Complainant no.2 namely, Mr. XXX in addition to Rs.
3,50,000/- paid by RTGS, also made cash payment amounting to Rs.83,25,000/-
(Rupees Eighty Three Lakh Twenty Five Thousand Only) towards Chit Funds in the
following manner:
(a)
Payment made under
scheme No.29 Deposited in the name of complainant no.2 i.e. Mr. XXX
S.No. Price Money Date Amount
1. 1,00,000 Date
25/02/2016 Amount 20,000/-
2. 1,00,000 Date
25/03/2016 20,000/-
3. 1,00,000 Dated
25/04/2016 Amount 20,000/-
4. 1,00,000 Dated
25/05/2016 Amount 20,000/-
5. 1,30,000 Date
25/06/2016 Amount 20,000/-
6. 2,10,000 Date 25/7/2016
Amount 20,000/-
7. 2,10,000 Date 25/8/2016
Amount 20,000/-
8. 2,10,000 Date
25/09/2016 Amount 20,000/
9. 2,10,000 Date
25/10/2016 Amount 20,000/-
10. 2.40,000 Date 25/01/2017 Amount 20,000/-
11. 3,20,000
Date 25/2/2017 Amount 20,000/-
12. 3,20,000
Date 25/03/2017 Amount 20,000/-
13. 3,20,000
Date 25/04/2017 Amount 20,000/-
14. 3,20,000
Date 25/05/2017 Amount 20,000/-
15. 3,50,00
Date 25/06/2017 Amount 20,000/-
16. 4,30,00
Date 25/07/2017 Amount 20,000/-
17. 4,30,00
Date 25/08 /2017 Amount 20,000/-
18. 4,30,00
Date 25/09/2017 Amount 20,000/-
19. 4,30,00
Date 25/10/2017 Amount 20,000/-
20. 4,60,00
Date 25/11/2017 Amount 20,000/-
21. 5,40,00
Date 25/12/2017 Amount 20,000/-
22. 5,40,00
Date 25/01/2018 Amount 20,000/-
23. 5,40,00
Date 25/02/2018 Amount 20,000/-
24. 5,40,00
Date 25/03/2018 Amount 20,000/-
(b) Payment made under
scheme No.31 deposited in the name of complainant no.02 i.e. XXXXXX :-
SNo Price Money Date Amount
1. 1,00,000 Date 25/02/2016 Amount 20,000/-
2. 1,00,000 Date 25/03/2016 20,000/-
3. 1,00,000 Dated 25/04/2016 Amount 20,000/-
4. 1,00,000 Dated 25/05/2016 Amount 20,000/-
5. 1,30,000 Date 25/06/2016 Amount 20,000/-
6. 2,10,000 Date 25/7/2016 Amount 20,000/-
7. 2,10,000 Date 25/8/2016 Amount 20,000/-
8. 2,10,000 Date 25/09/2016 Amount 20,000/
9. 2,10,000 Date 5/10/2016 Amount 20,000/
10. 2,40,000 Date
25/01/2017 Amount 20,000/-
11. 3,20,000
Date25/2/2017 Amount 20,000/-
12. 3,20,000 Date
25/03/2017 Amount 20,000/-
13. 3,20,000 Date
25/04/2017 Amount 20,000/-
14. 3,20,000 Date
25/05/2017 Amount 20,000/-
15. 3,50,00 Date
25/06/2017 Amount 20,000/-
16. 4,30,00 Date
25/07/2017 Amount 20,000/-
17. 4,30,00 Date
25/08 /2017 Amount 20,000/-
18. 4,30,00 Date
25/09/2017 Amount 20,000/-
19. 4,30,00 Date
25/10/2017 Amount 20,000/-
20. 4,60,00 Date
25/11/2017 Amount 20,000/-
21. 5,40,00 Date
25/12/2017 Amount 20,000/-
22. 5,40,00 Date
25/01/2018 Amount 20,000/-
23. 5,40,00 Date
25/02/2018 Amount 20,000/-
24. 5,40,00 Date
25/03/2018 Amount 20,000/-
H. It is further case of
the complainant that Payment made through RTGS in the account of M/s XXX Jewellers
Dated amount 06/09/2017 4,55,000/- 27/12/2017 3,50,000/- Total 8,05,000/- Out
of total amount bill and gold amounting to Rs.4,49,000 received 4,49,000 amount
due 3,55,000.
I. It is further case
of the complainant that Shri XXXX and his son Started a committee /chit
amounting to Rs 30,00,000/- (Thirty Lakh only) for a total period of 15 months
and induced the complainants to invest their money in the same with assurance
they will fetch huge profits.
J. It is further case
of the complainant that accordingly, the Complainants invested in the same and
an amount of Rs.2,00,000 (Two Lakhs) was inverted by both the Complainants from
1st Of August, 2017 to 1st Of 2018,i.e for a period of 15 months (8months X 2
Lakhs= 16 Lakhs). The entire payment of Rs 16,00,000/- was made in cash.
K. It is further case of
the complainant that after coming to know that the aforesaid Committees were
illegal and were not registered they stopped
making further payment in the month of April and asked for return of the amount
already paid by them. However, the said amount is illegally being kept by Shri.
XXXX his wife and their son.
L. It is further case of
the complainant that Shri. XXXXX and his son started another Committee Chit
amounting to Rs.18,00,000/- (Eighteen Lakhs Only)) for a total period of 15
months and again lured the Complainants to invest money in the same. The
inducement was to the extent of bringing the relatives as well to spend money
in the Chit.
M. It is further case of
the complainant that accordingly, Complainants talked to other relatives i.e,
Shri. XXXXX and Shri. XXXXXX to spend
money in the said Chit and thus, both the Complainants invested Rs. 1,20,000/
each (One Lakh Twenty Thousand Only) from 12th April, 2017 to 13th March, 2018
i..e, for a period of 12 months ( 12 months X 1.2 X2 =28,80,000) whereas, Shri XXXXX
and Shri. XXXX jointly paid Rs.
1,20,000/- per month from 12th April, 2017 to 13th March, 2018
totalling to Rs. 14,40,000/-.
N. It is further case of
the complainant that the Complainants along with their two relatives namely,
Shri XXXXXX and. Shri. XXXXXX invested in the said scheme a sum of Rs.
43,20,000/- (Rs.28,80,000+14,40,000 = 43,20,000) which payment was made in
cash.
O. It is further case of
the complainant that after coming to know that the aforesaid Committees were
illegal and were not registered they stopped making further payment in the
month of April and asked for return of the amount already paid by them.
However, the said amount is illegally being kept by Shri. Pawan Kumar his wife
and their son.
P. It is further case of
the complainant that Shri. XXXXX and his son started another Committee/ Chit
amounting to Rs.9,00,000/- (Nine Lakhs Only) for a total period of 9 months.
Q. It is further case of
the complainant that the Complainants were again induced and they invested the
amount in the third Chit Fund amounting to Rs.60,000/- (Sixty Thousand Only)
from 5th May, 2017 to 5th March, 2018 i..e, for a period of 11 months (11
months X60,000 = 6,60,000).
R. It is further case of
the complainant that the Complainants invested in the said scheme wherein, Rs.
6,60,000/- each totaling to Rs.13,20,000/ was paid by the Complainants in cash.
S. It is further case
of the complainant that after coming to know that the aforesaid Committees were
illegal and were not registered, they stopped making further payment in the
month of April and asked for return of the already paid by them.
T. It is further case of
the complainant that the said amount is also not being paid and on the other
hand the said applicant threatened the Complainants to get them implicated in
false cases in case they dare to demand any amount from them.
4.
That when the Applicant came to know
about the registration of the present FIR Applicant immediately moved an
application for grant of anticipatory bail before the Ld. Session Court, Rohini,
Delhi, but same was declined and dismissed the application of the applicant vide
order dated 29.04.2022. The copy of order dated 29.04.2022 passed by the Ld.
Session Judge is annexed as Annexure P-3.
5.
That the Applicant
is filing present bail application before this Hon’ble Court on the following
amongst other grounds which are taken without prejudice to each other:-
-: GROUNDS: -
A.
That during transactions as mentioned in the FIR
are made in cash by the complainant no.1 and complainant no.2 as there was no
such payment made and no proof of any of the transaction made as they had falsely
alleged in the present FIR.
B.
That the applicant is a reputed business man and is not indulged with any kind of chit fund business being run as mentioned in the FIR.
C.
That the applicant is the owner of M/s XXXX Jewellery
and the entire control of the firm was with him and therefore it needs to
mentioned that there was no such chit fund scheme conducted by MR. X
D.
That the complainant is the business rival of the
applicant, who lodged the present motivated FIR.
E.
That the complainant was failed to prove the payment
of a huge amount of Rs.83.25 Lacs towards Chit Funds.
F.
That the facts stated in the FIR against the
applicant are civil in nature and does not constitute any criminal offence at
all.
G.
That the Applicant
is ready to undertake to assist in the investigation and shall always make himself
available to the custody of the court at any point in time.
H.
In the facts and circumstances of the present case,
it is made clear that no case is made out against the applicant. It is well
settled law that even if prima facie is established, the approach of the court
in the matter of the anticipatory bail is not that the accused person shall be
detained in jail by way of punishment but whether presence of the accused
person is readily available for investigation or is likely to abuse the bail by
way of hampering evidence as the discretion is granted in their favour. The
discretion given to this Hon’ble Court under Section 438 is wide which is to be
exercised in accordance with the established principles of law.
I.
The allegations against the Applicant are bound to
be so absurd and inherently improbable, on the basis of which, no prudent
person can ever reach a just conclusion that there is sufficient ground for
proceeding against the Applicant. Hence, seen from any angle, the vague
accusations against the Applicant is a sheer and complete misuse/abuse of
process of law;
J.
It is pertinent to note that in case of ARNESH
KUMAR VS. STATE OF BIHAR reported in MANU/SC/0559/2014, 2014(3) Bom C.R. (cri)
262, The Apex Court has laid down certain guidelines to be followed by the
Police and the Court that u/s 41-D of the Cr. P.C. the police are bound to give
Notice and categorically stated that the Respondent Police ought not to arrest
accused persons without due notice/summons. Hence, the Applicant is entitled to
pre-arrest bail. The Apex Court has laid down “Our endeavour in this judgment
is to ensure that police officers do not arrest accused unnecessarily and
Magistrate do not authorize detention casually and mechanically.
K.
It is to be noted that intention to commit an
offence is the main ingredient to constitute the offence in Sub Curia i.e.
under any act prescribing a sentence. Intention in legal parlance is regarded
as mens rea, which is further elucidated by the Latin maxim, “Actus non facit
reum nisi mens sit rea” which pontificates that a criminal act cannot be
committed without a guilty mind. In the instant matter, the prosecution has
failed to point out that the Applicant had acted in furtherance of a common
intention and/or object as alleged and hence, the a/n Applicant not only lack
mens-rea but also the ulterior object in the commission of the crime which is
known as “Motive”;
L.
That the manner in which the Applicant’s
involvement in the commission of the offence has not been made out by the
prosecution and investigation collected by the Investigation officer puts a
dent on the prosecution’s story itself;
M.
That the Applicant custodial interrogation in this
alleged false, concocted and frivolous Complaint is not required, so also the
prosecution nowhere spells out any wrong committed by the applicant, therein do
not require the custody of the Applicant;
N.
That, it is
the basic criminal jurisprudence that the Applicant is considered innocent
until held guilty.
O.
That the
Hon’ble Supreme Court has recently held in a case that :-
The law of bails dovetails two
conflicting interests, namely, on the one hand, the requirements of shielding
society from the hazards of those committing crimes and potentiality of
repeating the same crime while on bail and on the other hand, absolute
adherence to the fundamental principle of criminal jurisprudence regarding
presumption of innocence of an accused until he is found guilty and the
sanctity of individual liberty.” The principles which can be culled out, for
the purposes of the instant case, can be stated as under:
(i) The complaint filed against the
accused needs to be thoroughly examined, including the aspect whether the
complainant has filed a false or frivolous complaint on earlier occasion. The
court should also examine the fact whether there is any family dispute between
the accused and the complainant and the complainant must be clearly told that
if the complaint is found to be false or frivolous, then strict action will be
taken against him in accordance with law. If the connivance between the
complainant and the investigating officer is established then action be taken
against the investigating officer in accordance with law.
(ii) The gravity of charge and the
exact role of the accused must be properly comprehended. Before arrest, the
arresting officer must record the valid reasons which have led to the arrest of
the accused in the case diary. In exceptional cases, the reasons could be
recorded immediately after the arrest, so that while dealing with the bail
application, the remarks and observations of the arresting officer can also be
properly evaluated by the court.
(iii) It is imperative for the courts
to carefully and with meticulous precision evaluate the facts of the case. The
discretion to grant bail must be exercised on the basis of the available
material and the facts of the particular case. In cases where the court is of
the considered view that the accused has joined the investigation and he is
fully cooperating with the investigating agency and is not likely to abscond,
in that event, custodial interrogation should be avoided. A great ignominy,
humiliation and disgrace is attached to arrest. Arrest leads to many serious
consequences not only for the accused but for the entire family and at times
for the entire community. Most people do not make any distinction between
arrest at a pre-conviction stage or post-conviction stage.
(iv) There is no justification for
reading into Section 438CrPC the limitations mentioned in Section 437CrPC. The plentitude of Section 438 must be given its full play. There is no
requirement that the accused must make out a “special case” for the exercise of
the power to grant anticipatory bail. This virtually, reduces the salutary
power conferred by Section 438CrPC to a dead letter. A person seeking
anticipatory bail is still a free man entitled to the presumption of innocence.
He is willing to submit to restraints and conditions on his freedom, by the
acceptance of conditions which the court may deem fit to impose, in
consideration of the assurance that if arrested, he shall be enlarged on bail.
(v) The proper course of action on an
application for anticipatory bail ought to be that after evaluating the
averments and accusations available on the record if the court is inclined to
grant anticipatory bail then an interim bail be granted and notice be issued to
the Public Prosecutor. After hearing the Public Prosecutor the court may either
reject the anticipatory bail application or confirm the initial order of
granting bail. The court would certainly be entitled to impose conditions for
the grant of anticipatory bail. The Public Prosecutor or the complainant would
be at liberty to move the same court for cancellation or modifying the
conditions of anticipatory bail at any time if liberty granted by the court is
misused. The anticipatory bail granted by the court should ordinarily be
continued till the trial of the case.
(vi) It is a settled legal position
that the court which grants the bail also has the power to cancel it. The
discretion of grant or cancellation of bail can be exercised either at the
instance of the accused, the Public Prosecutor or the complainant, on finding
new material or circumstances at any point of time.
(vii) In pursuance of the order of
the Court of Session or the High Court, once the accused is released on
anticipatory bail by the trial court, then it would be unreasonable to compel
the accused to surrender before the trial court and again apply for regular
bail.
(viii) Discretion vested in the court
in all matters should be exercised with care and circumspection depending upon
the facts and circumstances justifying its exercise. Similarly, the discretion
vested with the court under Section 438CrPC should also be exercised with caution and
prudence. It is unnecessary to travel beyond it and subject the wide power and
discretion conferred by the legislature to a rigorous code of self-imposed
limitations.
(ix) No inflexible guidelines or
straitjacket formula can be provided for grant or refusal of anticipatory bail
because all circumstances and situations of future cannot be clearly visualised
for the grant or refusal of anticipatory bail. In consonance with legislative
intention, the grant or refusal of anticipatory bail should necessarily depend
on the facts and circumstances of each case.
(x) We shall also reproduce para 112
of the judgment wherein the Court delineated the following factors and
parameters that need to be taken into consideration while dealing with
anticipatory bail:
(a) The nature and gravity of the
accusation and the exact role of the accused must be properly comprehended
before arrest is made;
(b) The antecedents of the applicant
including the fact as to whether the accused has previously undergone
imprisonment on conviction by a court in respect of any cognizable offence;
(c) The possibility of the applicant
to flee from justice;
(d) The possibility of the accused's
likelihood to repeat similar or other offences;
(e) Where the accusations have been
made only with the object of injuring or humiliating the applicant by arresting
him or her;
(f) Impact of grant of anticipatory
bail particularly in cases of large magnitude affecting a very large number of
people;
(g) The courts must evaluate the
entire available material against the accused very carefully. The court must
also clearly comprehend the exact role of the accused in the case. The cases in
which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider
with even greater care and caution, because over implication in the cases is a
matter of common knowledge and concern;
(h) While considering the prayer for
grant of anticipatory bail, a balance has to be struck between two factors,
namely, no prejudice should be caused to free, fair and full investigation, and
there should be prevention of harassment, humiliation and unjustified detention
of the accused;
(i) The Court should consider
reasonable apprehension of tampering of the witness or apprehension of threat
to the complainant;
(j) Frivolity in prosecution should
always be considered and it is only the element of genuineness that shall have
to be considered in the matter of grant of bail and in the event of there being
some doubt as to the genuineness of the prosecution, in the normal course of
events, the accused in entitled to an order of bail.
P.
That the Applicant
/ accused is a permanent resident of Delhi having deep roots in the society and
is residing at above mentioned address and there is no chance of Applicant /
accused to abscond or to temper with the prosecution evidence.
Q.
It is further submitted that the said
offence being an act of individual and the Applicant cannot be roped in the
present matter under the garb of Section 406 of IPC 4/11/76 Chit Fund Act &
3/4/5/6 Prize Chits &money Circulating Act which are reproduced hereunder;-
Section 406 of IPC- Punishment for criminal breach of trust. Whoever commits
criminal breach of trust shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine, or with
both.
Section 4 in the Chit Funds Act, 1982
4.
Prohibition of chits not sanctioned or registered under the Act.—
(1)
No chit shall be commenced or conducted without obtaining the previous sanction
of the State Government within whose jurisdiction the chit is to be commenced
or conducted or of such officer as may be empowered by that Government in this
behalf, and unless the chit is registered in that State in accordance with the
provisions of this Act: Provided that a sanction obtained under this
sub-section shall lapse if the chit is not registered within twelve months from
the date of such sanction or within such further period or periods not
exceeding six months in the aggregate as the State Government may, on
application made to it in this behalf, allow.
(2)
An application for the purpose of obtaining a sanction under sub-section (1)
shall be made by the foreman in such form and in such manner as may be
prescribed.
(3)
The previous sanction referred to in sub-section (1) may be refused, if the
foreman,—
(a)
had been convicted of any offence under this Act or under any other Act
regulating chit business and sentenced to imprisonment for any such offence; or
(b)
had defaulted in the payment of fees or the filing of any statement or record
required to be paid or filed under this Act or had violated any of the
provisions of this Act or the rules made thereunder; or
(c)
had been convicted of any offence involving moral turpitude and sentenced to
imprisonment for any such offence unless a period of five years has elapsed
since his release: Provided that before refusing any such sanction, the foreman
shall be given a reasonable opportunity of being heard.
(4)
The order of the State Government, and, subject to the provisions of
sub-section (5), the order of the officer empowered under sub-section (1),
issuing or refusing previous sanction under this section shall be final.
(5)
Any person aggrieved by the refusal to issue previous sanction by any officer
empowered under sub-section (1) may appeal to the State Government within
thirty days of the date of communication to him of such refusal and the
decision of that Government on such appeal shall be final.
Section 11 in the Chit Funds Act, 1982
11.
Use of the words “chit”, “chit fund”, “chitty” or “kuri”.—
(1)
No person shall carry on chit business unless he uses as part of his name any
of the words “chit”, “chit fund”, “chitty” or “kuri” and no person other than a
person carrying on chit business shall use as part of his name any such word.
(2)
Where at the commencement of this Act,—
(a)
any person carrying on chit business without using as part of his name any of
the words specified in sub-section (1); or
(b)
any person not carrying on chit business is using any such word as part of his
name, he shall, within a period of one year from such commencement, add as part
of his name any such word or, as the case may be, delete such words from his
name: Provided that the State Government may, if it considers it necessary in
the public interest or for avoiding any hardship, extend the said period of one
year by such further period or periods not exceeding one year in the aggregate.
Section 76 in the Chit Funds Act, 1982
76.
Penalties.—
(1)
Whoever contravenes or abets the contravention of any of the provisions of
sections 4, 5, 8, 9, 11, 12, 13, 14, 19, 20, 22, 24, 30, 31, sub-section (4) of
section 33, sections 46, 47 or sub-section (5) of section 61 shall, on
conviction, be punishable with imprisonment for a term which may extend to two
years, or with fine which may extend to five thousand rupees, or with both.
(2)
Any foreman, —
(a)
who fails to file any document required to be filed under this Act within the
period specified therefor or within such further time as may be allowed; or
(b)
who fails to comply with the requirements of the chit agreement regarding the
date, time and place at which the chit is to be drawn or who fails to comply
with the requirements of any direction given under sub-section (3) of section
38; or
(c)
who contravenes or fails to comply with any other requirement under this Act,
shall, on conviction, be punishable with fine which may extend to three
thousand rupees.
(3)
Whoever willfully makes a statement in any document required to be filed under
this Act which is false in any material particular shall, on conviction, be
punishable with imprisonment for a term which may extend to two years or with
fine which may extend to five thousand rupees or with both.
Section 3 of The Prize Chits and Money Circulation Schemes
(Banning) Act, 1978
3.
Banning of prize chits and money circulation schemes or enrolment as members or
participation therein.—No person shall promote or conduct any prize chit or
money circulation scheme, or enrol as a member to any such chit or scheme, or
participate in it otherwise, or receive or remit any money in pursuance of such
chit or scheme.
Section 4 of The Prize Chits and Money Circulation Schemes
(Banning) Act, 1978
4.
Penalty for contravening the provisions of section 3.—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.
Section 5 in The Prize Chits and Money Circulation Schemes
(Banning) Act, 1978
5.
Penalty for other offences in connection with prize chits or money circulation
schemes.—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,—
(a)
prints or publishes any ticket, coupon or other document for use in the prize
chit or money circulation scheme; or
(b)
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
(c)
prints, publishes or distributes, or has in his possession for the purpose of
publication or distribution—
(i)
any advertisement of the prize chit or money circulation scheme; or
(ii)
any list, whether complete or not, of members in the prize chit or money circulation
scheme; or
(iii)
any such matter descriptive of, or otherwise 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
(d)
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
(e)
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
(f)
causes 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 in The Prize Chits and Money Circulation Schemes
(Banning) Act, 1978
6.
Offences by companies.—
(1)
Where an 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, 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 anybody corporate and includes a firm or other association of
individuals; and
(b)
“director”, in relation to a firm, means a partner in the firm.
Since,
this is individual act as stated hereinabove, the Applicant cannot be imposed
liability of any kind of this offence.
R.
It is further submitted that there is no
evidence against the Applicant about the complicity in the alleged offence.
Furthermore, there is no pointer of involvement of the Applicant in the present
case, as such Applicant is entitled for grant of anticipatory bail.
S.
That the Applicant cannot be roped in the
present case on the principal of vicarious liability and there is no evidence
against the Applicant which can suggest aiding instigating, engaging in the
said commission of the alleged offence.
T.
That the Applicant cannot be made an accused
in the present case only on the bases of false presumption.
U.
In view of the guidelines passed by the
Hon’ble Supreme Court in a matter titled as SATENDER
KUMAR ANTILVS CBI, AND RYAN AUGUSTINE PINTO VS STATE OF HARYANA; (2017) SCC
ONLINE P&H 3063 Applicant is entitled for grant of
anticipatory bail.
V.
That sending the Applicant to jail would
not solve any meaningful purpose and same would be in defiance of every known
notion of justice. It is submitted that the Applicant is honest and innocent and
have been falsely implicated in the present FIR with malafide dishonest and
phony intentions to fleece the money from the Applicant. It is submitted that
the Applicant may be enlarged on anticipatory bail in order to live a
respectful and dignified life in Society.
W.
Because if the initial action is not in
consonance with law principle has been stated in a catena of judgments by the
Hon’ble Supreme Court.
X.
That it is settled law that “Bail is the
rule and jail is an exception.” The object of bail is neither punitive nor
preventive but is meant to secure presence of the accused during the trial.
Y.
It is settled law that bail is a rule and
jail is an exception. This principle is recognized since the days of Magna
Carta. Provision for bail is therefore age old and the liberal interpretation
to the provision of bail is almost a century old, going back to colonial days.
Z.
That it may
not be out of context to point out that the Hon’ble Supreme Court in the matter
of Sanjay Chandra Vs. CBI (2012) 1 SCC
40 has again upheld the fundamental principle of criminal jurisprudence
“bail and not jail” and has observed that time and again is has stated that
bail is the rule and committal to jail an exception. It is also observed that
refusal of bail is a restriction on the personal liberty of the individual
guaranteed under Article 21 of the Constitution.
AA.
That in the case of Siddharam Satlingoppa Meheto Vs.
State of Maharashtra (2011) 1SCC 694 Hon’ble Court observed
“Personal liberty is a very
precious fundamental right and it should be curtailed only when it becomes
imperative according to the peculiar facts and circumstances of the case.”
BB.
Hon'ble the Apex Court in
the case of Vaman Narain Ghiya Vs. State
of Rajasthan [reported in (2009)2 SCC 281], which reads as under:-
"8. The law of
bail, like any other branch of law, has its own philosophy, and occupies an
important place in the administration of justice and the concept of bail
emerges from the conflict between the police power to restrict liberty of a man
who is alleged to have committed a crime, and presumption of innocence in
favour of the alleged criminal. An applicant is not detained in custody with
the object of punishing him on the assumption of his guilt."
CC.
That the grant or refusal to grant bail lies within
the discretion of the Court. The grant or denial is regulated, to a large
extent, by the facts and circumstances of each particular case. But at the same
time, right to bail is not to be denied merely because of the sentiments of the
community against the Applicant. The primary
purposes of bail in a criminal case are to relieve the Applicant of imprisonment, to relieve the
State of the burden of keeping him, pending the trial, and at the same time, to
keep the Applicant
constructively in the custody of the Court, whether before or after conviction,
to assure that he will submit to the jurisdiction of the Court and be in
attendance thereon whenever his presence is required.
DD.
That
there is no good reason to detain the accused in custody, that too, after the
completion of the investigation. That Hon’ble Supreme Court, in the case of State of Kerala Vs. Raneef (2011) 1 SCC
784, has stated that
“in deciding bail
applications an important factor which should certainly be taken into
consideration by the court is the delay in concluding the trial. Often this
takes several years, and if the accused is denied bail but is ultimately
acquitted, who will restore so many years of his life spent in custody? Is
Article 21 of the Constitution, which is the most basic of all the fundamental
rights in our Constitution, not violated in such a case? Of course this is not
the only factor, but it is certainly one of the important factors in deciding
whether to grant bail. In the present case the respondent has already spent 66
days in custody (as stated in Para 2 of his counter-affidavit), and we see no
reason why he should be denied bail.”
EE.
In the case of
State of Rajasthan v.
Balchand, (1977) 4 SCC
308, Hon’ble Supreme Court opined:
“That the basic rule may perhaps be tersely put as bail, not jail,
except where there are circumstances suggestive of fleeing from justice or
thwarting the course of justice or creating other troubles in the shape of
repeating offences or intimidating witnesses and the like, by the Applicant who
seeks enlargement n bail from the Court. We do not intend to be exhaustive but
only illustrative.
It is true that the gravity of the offence involved is likely to induce
the Applicant to avoid the course of justice and must weigh with us when
considering the question of jail. So also the heinousness of the crime. Even
so, the record of the Applicant in this case is that, while he has been on bail
throughout in the trial court and he was released after the judgment of the
High Court, there is nothing to suggest that he has abused the trust placed in
him by the court; his social circumstances also are not so unfavorable in the
sense of his being a desperate character or unsocial element who is likely to
betray the confidence that the court may place in him to turn up to take
justice at the hands of the court. He is stated to be a young man of 27 years
with a family to maintain. The circumstances and the social milieu do not
militate against the Applicant being granted bail at this stage. At the same
time any possibility of the absconsion or evasion or other abuse can be taken
care of by a direction that the Applicant will report himself before the police
station at Baren once every fortnight.”
FF.
That Applicant
is a reputed business man and has got clean antecedents and also has got no
influence over the prosecution witnesses and there is no likelihood of tempering with the same as the prosecution.
GG.
That as per the jurisprudence of bail, aim is to
be kept for achieving a balance between personal liberty and social security.
The first time offender having no criminal antecedence is to be considered
separately. However, where the Applicant has deep roots in the
society his detention should be avoided.
HH.
That the Applicant
did not commit any crime. It is sheer out of vengeance by the complainant who
has vendetta with the Applicant and prevailed to make false statement regarding
the Applicant / accused has also been falsely implicated in the present case.
5. That the Applicant is
ready to furnish the surety to the entire satisfaction of this Hon’ble court.
6. That Section 438 Cr.P.C.
itself provides that the court can impose the condition while granting
anticipatory bail that such person shall not commit an offence similar to the
offence of which he is accused or suspected, of the commission of which he is
suspected.
7. That it may be submitted
that the Applicant has a clean record. The Applicant has never been convicted
in past in any case. It cannot be construed under any circumstances that the Applicant
has a bad record which suggests that he is likely to commit, similar
or serious offenses while on bail.
8. That the Applicant has deep roots in the
society and there is absolutely no chance of the Applicant running away from the
course of justice or tampering with evidence.
NON-FILING
PARA :-
9. That no similar petition has been filed
before this
10. That the annexures to the
petition are true copies of their respective originals.
P
R A Y E R
It is, therefore, most respectfully
prayed that this Hon’ble Court may graciously be pleased to:-
a)
Grant anticipatory bail to the Applicant in the event of arrest
in FIR No. XXXX under Section 406 IPC, 4/11/76
Chit Fund Act & 3/4/5/6 Prize Chits & Money Circulating Act registered
with P.S XX, Delhi, in the interest of justice and on any
terms and condition that the Hon’ble court may deem fit and proper; and
b)
Any other order as this Hon’ble Court may
deem necessary in the circumstances of the present case.
FOR
THIS ACT OF KINDNESS THE APPLICANT SHALL ALWAYS PRAY.
DELHI
APPLICANT
THROUGH
DATED: ADVOCATE
