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G. Rajasuria, J.—Crl. O.P. (MD) Nos. 8294 and 11135 of 2010 are focussed to get anticipatory bail for A2 to A6 in Crime No. 28 of 2010 and Crl. O.P. (MD) No. 10477 of 2010 is focussed to get quashed the F.I.R. in Crime No. 28 of 2010.
Heard the learned Counsel for the Petitioners as well as the learned Government Advocate (Criminal side) for the State and the learned Counsel for the interveners.
A re''sume'' of facts absolutely necessary and germane for the disposal of this petition would run thus:
The police registered the case in Crime No. 28 of 2010 under Sections 406, 420 and 120B I.P.C. and Section 5 of Tamil Nadu Protection of Interests of Depositors (In Financial Establishments) Act, 1997, on the ground that the company under the name and style ''Paramount Marketing Corporation Limited, Madurai, of which A1 and A3 are said to the Directors, published advertisements inviting the customers to deposit amounts for the purpose of purchasing Thirukkural Books and if they do so, they would be provided with monthly payments for 37 months. In response to it, huge numbers of customers deposited huge amounts Subsequently, the aggrieved customers approached the police with the complaint that they have not been paid such monthly payments as promised earlier by the said company. It is also the prosecution case that A2 is the wife of A1, A3 and A4 are the sons of A1 and A5 is the brother-in-law of A1 and A6 is the employee of the company. A1 was arrested and he was subsequently released on default bail. The other accused persons have not been arrested; as such A2 to A6 have filed Crl. O.P.(MD) Nos. 8294 and 11135 of 2010 for anticipatory bail.
Mr. R. Anand, the learned Counsel for the Petitioners in Crl. O.P.(MD) Nos. 8294 and 11135 of 2010 would put forth and set forth his arguments to the effect that absolutely there is no iota or shred of evidence to fasten A2 to A6 with criminal liability and A2 to A5 happened to the relatives of A1 and A6 happened to be the employee of A1 and nothing more and for mulcting them with the criminal liability, there should be prima-facie materials available, otherwise they are entitled to anticipatory bail. According to him no materials are available as against the Petitioners.
He would further submit that A1 might have purchased certain properties in the name of his wife A2 and that it does not mean that A2 conspired with A1 to cheat the other customers. There is nothing to indicate that the accused persons shared the common intention with A1 or conspired with A1 for cheating the public. By incarcerating A2 to A6, after letting out A1 on bail, no purpose is going to be served.
Mr. R. Anand, the learned Counsel for the Petitioners in Crl. O.P. (MD) Nos. 8294 and 11135 of 2010 would further submit that the properties worth Rs. 50 Crores belonged to A1 were attached by the competent authority under TANPID Act and in such a case, absolutely there could be no objection from the investors as against A2 to A6, in getting anticipatory bail.
Mr. G.R. Swaminathan, learned Counsel for the Petitioners in Crl. O.P. (MD) No. 10477 of 2010 would put forth and set forth his arguments to the effect that even for arguments sake, if the narration in the F.I.R. is taken as true, it does not disclose a case under TANPID Act and for that matter it would not amount to cheating also; Section 420 and 406 I.P.C. would not go hand in hand; in the advertisements which form part of the typed set of papers, there were no assurances found given by the accused that the original deposit amount would be returned and simply because the accused could not honour the commitment in paying the monthly amounts for 37 months, that would not amount to any offence in the peculiar circumstances of case and that too in the absence of any commitment on the part of the accused in paying such amounts to the customers. Accordingly, he prays for quashing the F.I.R. itself.
By way of torpedoing and pulverising the aforesaid arguments on the side of the Petitioners, the learned Counsel for the intervenors in unison would submit that absolutely there is no merit in these applications for the reason that any deposit by the customers with the accused in this case would tantamount to deposit with in the meaning of Section 2 of the TANPID Act. The accused persons conjointly with the common intention and common object collected deposits from the customers by giving assurances. However, subsequently, they had a volte face and turned turtle and refused to honour their commitments and the customers felt that they were cheated by the accused. According to the counsel for the intervenors, the public have been cheated to a tune of several Crores and it is not a fit case for quashment as well as for granting anticipatory bail.
The learned Government Advocate (Criminal side would submit that the accused collected amounts to a tune of Rs. 220 Crores from the public and yet a sum of Rs. 65 Crores have to be repaid to the public. Further, the learned Government Advocate would submit that even now complaints are being received by the investigating agency as against the accused in relation to the aforesaid transactions.
The learned Counsel for the intervenors also would submit that earlier several criminal original petitions were filed seeking anticipatory bail for A2 to A6, but they were dismissed as withdrawn and these petitions also deserve dismissal.
The points for consideration would run thus:
(i) Whether the F.I.R. has to be quashed on the ground that no prima-facie case is made out?
(ii) Whether the Petitioners/A2 to A6 are entitled to anticipatory bail?
Point No. (i): At the outset itself I would like to hark back to the following decisions of the Honourable Apex Court in
1 Jeffrey J. Diermeier and Another Vs. State of West Bengal and Another, and
2 Preeti Gupta and Another Vs. State of Jharkhand and Another, .
3 Shakson Belthissor v. State of Kerala reported in (2010) 1 SCC 1412.
A mere reading of those decisions would unambiguously highlight and spotlight the fact that only in rarest of rare cases alone Section 482 of Code of Criminal Procedure could be invoked to quash the F.I.R.
Further, I recollect and call up the maxim Quando aliquid mandatur, mandatur et omne per quod pervenitur ad illud (When anything is commanded, everything by which it can be accomplished is also commanded) which constitute the bed rock of Section 482 of Code of Criminal Procedure No doubt, I am also aware of one other maxim vana est illa potentia quae nunquamvenitinactum (Vain is that power that never comes into action).
Section 482 of Code of Criminal Procedure is meant for power being exercised. When I observe so, it means that it should be exercised in proper cases and that too when there is failure of justice. The narration of events as set forth and put forth by the counsel on either side would amply make the point clear that it is a case where the company in which A1 and A3 are Directors made the public to believe as though by paying certain amount by purchasing Thirukkural Books, they would be getting every month a fixed amount for 37 months. Subsequently, all ended in a fiasco thereupon alone this case has arisen.
Mr. G.R. Saminathan, learned Counsel for the Petitioners in Crl. O.P. (MD) No. 10477 of 2010 would submit that absolutely there was no promise on the part of A1 or the company or any other accused to the customers that they would pay certain amount for 37 months but the company assured that so long as the company earns profit the company would pay certain amount, on the other hand if there is no income, then the company will not be able to pay such amount for 37 months to the customers.
Mr. R. Anand, the learned Counsel for the Petitioners in Crl .O.P. (MD) Nos. 8294 and 11135 of 2010 also would submit that it is not a case of any one that the company was not being run properly and in such a case non sharing of profit would not amount to cheating. He would further submit that because of the Reserve Bank of India directive not to issue cheques to the companies, this company could not issue cheque to its huge numbers of customers and the customers of the company wrongly understood that they would not get the amounts and they stopped contributing further. In view of the customers having stopping contributions further, the company was not in a position to pay the monthly payments further.
For the purpose of invoking Sections 420 and 406 I.P.C. there should be cheating on the part of the individual. The well known maxim is that even a devil not understand what is there in the mind of a person. Only, from his conduct his real intention could be understand. Here, in this case for some time it appears the accused was paying some amounts to the customers. Indisputably and indubitably, the customers subsequently were not paid the amounts and that was why they lodged a complaint with the police.
The customers deposited the amount with the company with the avowed expectation that they would be getting per month substantial amount for 37 months and for some alleged reason the accused did not pay the amount as assured earlier, whereupon naturally the customers were aggrieved by it. Their approach cannot be labelled and dubbed as wrong in lodging the complaints. Their complaints that they have been cheated should necessarily be taken note of. The explanation furnished on the part of the accused that owing to unfortunate circumstances alone the dividend could not be paid cannot be ex-facie taken as justifiable reason at this stage and in my opinion it is too big a pill to swallow. Ex-facie and prima-facie the grievances of the interveners including the complainants would show that their case involves the offence of cheating and the provisions of TANPID is also attracted as the deposits were made by the customers in view of the assurances made by the said company. As such, prima-facie there is nothing to display and indicate, expatiate or convey that there is no case at all for the investigator to proceed further with the case and as such the quashment is a well nigh impossibility and the F.I.R. cannot be quashed. Accordingly, this point is answered against the Petitioners.
Point No. (ii): Mr. R. Anand, the learned Counsel for the Petitioners in Crl. O.P. (MD) Nos. 8294 and 11135 of 2010 would submit that A2, the wife of A1 being a lady could be considered sympathetically for the grant of anticipatory bail as per Section 438 r/w 439 of Code of Criminal Procedure The learned Counsel would further submit that absolutely there is no documentary evidence to show that A2 to A6 have committed the offence.
On the side of the prosecution, it has been unequivocally pointed out that the accused, so to say A2 to A6 also invited the customers to deposit amounts and out of the amounts collected from the customers, various properties were purchased in the name of A2 to A4. The learned Government Advocate (Criminal side) would further submit that so far the police gathered evidence that every month certain amounts from the company were transferred to the personal accounts of A2 to A4.
For constituting the offences under the provisions of TANPID and Section 420 and for 406 I.P.C., there need not be anything to show that the accused were the directors of the said company. But it is sufficient, if there are prima-facie averments as well as materials to exemplify and demonstrate that they also participated in the crime. Here, on the prosecution side it has been pointed out that A2 to A6 also participated in inviting the customers to deposit amounts and in such a case there is no question of granting anticipatory bail to A2 to A6 would arise.
Anticipatory bail is a facility that could be accorded to a person, if there is suspicion that owing to personal vendetta or ulterior motive a false complaint has been lodged. But in this case, the above discussion would show ex-facie and prima-facie show that there is enough materials to evince and project that A2 to A6 also participated in the Crime. Trite the proposition of law is that while considering the anticipatory bail petition, the gravity of the offence should be considered. Here, my discussion supra would reveal that not less than 62 Crores are yet to be recovered from the accused as per police who gathered materials. In fact, it is also not the case of accused that they paid the customers the assured amounts without any default. Learned Government Advocate (Criminal side) would submit that only a portion of the amount, due payable, security is available in view of attachment of the properties secured. As such, I am of the view that they are not entitled to anticipatory bail. Accordingly, this point is also answered against the Petitioners.
In the result, these Criminal Original Petitions are dismissed.
Consequently, connected M.P. (MD) No. 1 of 2010 in Crl. O.P. (MD) No. 10477 of 2010 is dismissed.