IN THE MATTER OF :-
MR. Applicant's name
S/o Sh. Applicant's father's name,
R/o Applicant's house address,
Applicant's locality,
Delhi-1100Applicant's PIN code (last digits).: APPLICANT
VERSUS
THE STATE OF
(NCT OF DELHI): RESPONDENT
FIR No. FIR number
U/s.: 406 IPC
Sec. 4/11/76 Chit Fund Act
3/4/5/6 PC&MC Act
P.S.: Police station
ANTICIPATORY BAIL APPLICATION UNDER SECTION 438 OF THE CODE OF CRIMINAL PROCEDURE ON BEHALF OF THE APPLICANT, NAMELY MR. Applicant's name Applicant's surname, FOR GRANT OF ANTICIPATORY BAIL IN F.I.R. No. FIR number UNDER SECTION 406 OF THE I.P.C. R/W SECTION 4/11/76 OF THE CHIT FUNDS ACT, AND SECTION 3/4/5/6 OF THE PRIZE CHITS AND MONEY CIRCULATION SCHEMES (BANNING) ACT, 1978, REGISTERED AT POLICE STATION Police station, DELHI.
TO,
---
THE CHIEF JUSTICE OF THE DELHI HIGH COURT AND HIS COMPANION JUDGES OF THE SAID HON'BLE COURT.
The humble application of the above-named Applicant.
MOST RESPECTFULLY SHOWETH:-
1.That the Applicant is a reputed businessman, the owner of M/S Jewellery firm name Jewellers, and a law-abiding citizen having deep roots in 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 FIR No. FIR number under Section 406 IPC, Section 4/11/76 of the Chit Fund Act and Sections 3/4/5/6 of the Prize Chits & Money Circulation Act, registered at P.S. Police station, Delhi. A copy of FIR No. FIR number is annexed as Annexure P-1. Pertinently, the complainant filed a complaint under Section 156(3) CrPC before the Ld. M.M.-05, Police station of MM court, Distt. District court district name Courts, Delhi, and the same was allowed vide order dated Date of the order allowing the complaint under Section 156(3) CrPC, whereupon the said complaint was converted into the present FIR, wherein the name of the Applicant was mentioned. A copy of the order dated Date of the order allowing the complaint under Section 156(3) CrPC passed by the Ld. M.M. Magistrate court number, 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 Complainant No. 1, Mr. Complainant no.1's name, and Complainant No. 2, Mr. Complainant no.2's name, proprietors of M/s Complainant's jewellery firm name Jewellery House at Complainant's shop address, Delhi-1100Complainant's PIN code (last digits), lodged the FIR against the Applicant on Date and time of registration of the FIR in respect of non-delivery of items purchased on Date of purchase of the undelivered items, and in respect of an amount of Rs. Cash amount invested in the chit funds invested by Complainant No. 1 and his relatives in the chit funds run by the Applicant's father.
B.It is further the case of the complainant that he was engaged in the business of jewellery as a goldsmith and was running his shop under the name and style of M/s Complainant's jewellery firm name Jewellery House, and that Mr. Applicant's father's name was also engaged in the same business of goldsmith and had business relations with the complainant.
C.It is further the case of the complainant that, during the course of the business relations between Applicant's father's name and the complainant, payments were made by way of RTGS/NEFT, cheques and other modes for orders.
D.It is further the case of the complainant that Mr. Applicant's father's name supplied gold jewellery weighing Weight of gold jewellery supplied grams vide Invoice No. Invoice number dated Date of the invoice for Rs. Invoice amount including SGST and CGST, inclusive of SGST and CGST. The complainant made a payment of Rs. Amount of the first payment made by the complainant on Date of the first payment through RTGS to Bank A/c No. Bank account number of Bank name Bank Ltd., Bank branch name Branch, Delhi. Thereafter, the complainant placed a further order for jewellery with the Applicant and deposited an advance payment of Rs. Advance payment amount through RTGS of the same bank on Date of the advance payment, by means of which the complainant made a total payment of Rs. Total payment made by the complainant to Mr. Applicant's father's name. Thereafter, the complainant did not receive the jewellery, and, after deducting the jewellery amount of Rs. Invoice amount including SGST and CGST from the total payment of Rs. Total payment made by the complainant, a sum of Rs. Outstanding amount due remained outstanding against the Applicant's father. The complainant accordingly seeks recovery of the said outstanding payment together with interest @ Rate of interest claimed on the outstanding amount p.a. from the date of payment, i.e., Date of the advance payment, until realisation.
E.It is further the case of the complainant that, in the meantime, Complainant No. 1 and Complainant No. 2 also invested a substantial amount in the chit fund being run by M/s Chit fund firm name Jewellers (the Applicant's office), having its office at Chit fund office address, Delhi-1100Chit fund office PIN code (last digits), as they were assured high returns on their investment.
F.It is further the case of the complainant that, knowing of the risks involved and relying upon the assurances provided, the complainants invested a huge amount after due inquiry, as they found no ground for suspicion regarding the said chits.
G.It is further the case of the complainant that Complainant No. 1 and Complainant No. 2, in addition to Rs. Advance payment amount paid by RTGS, also made cash payments amounting to Rs. Cash amount invested in the chit funds (Rupees Cash amount in words Only) towards chit funds, pursuant to the representations made by Mr. Applicant's father's name. Complainant No. 1, namely Mr. Complainant no.1's first name Complainant no.1's surname, along with Complainant No. 2, namely Mr. Complainant no.2's name, made the said cash payments in the following manner:
(a)Payments made under Scheme No. 29, deposited in the name of Complainant No. 2, i.e., Mr. Complainant no.2's name:
| S.No. | Price Money | Date | Amount |
|---|
| 1 | 1,00,000 | 25/02/2016 | 20,000/- |
| 2 | 1,00,000 | 25/03/2016 | 20,000/- |
| 3 | 1,00,000 | 25/04/2016 | 20,000/- |
| 4 | 1,00,000 | 25/05/2016 | 20,000/- |
| 5 | 1,30,000 | 25/06/2016 | 20,000/- |
| 6 | 2,10,000 | 25/07/2016 | 20,000/- |
| 7 | 2,10,000 | 25/08/2016 | 20,000/- |
| 8 | 2,10,000 | 25/09/2016 | 20,000/- |
| 9 | 2,10,000 | 25/10/2016 | 20,000/- |
| 10 | 2,40,000 | 25/01/2017 | 20,000/- |
| 11 | 3,20,000 | 25/02/2017 | 20,000/- |
| 12 | 3,20,000 | 25/03/2017 | 20,000/- |
| 13 | 3,20,000 | 25/04/2017 | 20,000/- |
| 14 | 3,20,000 | 25/05/2017 | 20,000/- |
| 15 | 3,50,000 | 25/06/2017 | 20,000/- |
| 16 | 4,30,000 | 25/07/2017 | 20,000/- |
| 17 | 4,30,000 | 25/08/2017 | 20,000/- |
| 18 | 4,30,000 | 25/09/2017 | 20,000/- |
| 19 | 4,30,000 | 25/10/2017 | 20,000/- |
| 20 | 4,60,000 | 25/11/2017 | 20,000/- |
| 21 | 5,40,000 | 25/12/2017 | 20,000/- |
| 22 | 5,40,000 | 25/01/2018 | 20,000/- |
| 23 | 5,40,000 | 25/02/2018 | 20,000/- |
| 24 | 5,40,000 | 25/03/2018 | 20,000/- |
(b)Payments made under Scheme No. 31, deposited in the name of Complainant No. 2, i.e., Mr. Complainant no.2's name:
| S.No. | Price Money | Date | Amount |
|---|
| 1 | 1,00,000 | 25/02/2016 | 20,000/- |
| 2 | 1,00,000 | 25/03/2016 | 20,000/- |
| 3 | 1,00,000 | 25/04/2016 | 20,000/- |
| 4 | 1,00,000 | 25/05/2016 | 20,000/- |
| 5 | 1,30,000 | 25/06/2016 | 20,000/- |
| 6 | 2,10,000 | 25/07/2016 | 20,000/- |
| 7 | 2,10,000 | 25/08/2016 | 20,000/- |
| 8 | 2,10,000 | 25/09/2016 | 20,000/- |
| 9 | 2,10,000 | 25/10/2016 | 20,000/- |
| 10 | 2,40,000 | 25/01/2017 | 20,000/- |
| 11 | 3,20,000 | 25/02/2017 | 20,000/- |
| 12 | 3,20,000 | 25/03/2017 | 20,000/- |
| 13 | 3,20,000 | 25/04/2017 | 20,000/- |
| 14 | 3,20,000 | 25/05/2017 | 20,000/- |
| 15 | 3,50,000 | 25/06/2017 | 20,000/- |
| 16 | 4,30,000 | 25/07/2017 | 20,000/- |
| 17 | 4,30,000 | 25/08/2017 | 20,000/- |
| 18 | 4,30,000 | 25/09/2017 | 20,000/- |
| 19 | 4,30,000 | 25/10/2017 | 20,000/- |
| 20 | 4,60,000 | 25/11/2017 | 20,000/- |
| 21 | 5,40,000 | 25/12/2017 | 20,000/- |
| 22 | 5,40,000 | 25/01/2018 | 20,000/- |
| 23 | 5,40,000 | 25/02/2018 | 20,000/- |
| 24 | 5,40,000 | 25/03/2018 | 20,000/- |
H.It is further the case of the complainant that payments were made through RTGS into the account of M/s Jewellery firm name Jewellers, details of which are as follows:
| Date | Amount (Rs.) |
|---|
| 06/09/2017 | 4,55,000/- |
Out of the total amount of Rs. 8,05,000/-, bills and gold amounting to Rs. 4,49,000/- were received by the complainant, leaving an amount of Rs. 3,56,000/- due and outstanding.
I.It is further the case of the complainant that Shri Applicant's father's name and his son started a committee/chit amounting to Rs. 30,00,000/- (Rupees Thirty Lakh only) for a total period of 15 months, and induced the complainants to invest their money in the said committee with the assurance that it would fetch them huge profits.
J.It is further the case of the complainant that, accordingly, the complainants invested in the said committee, and an amount of Rs. 2,00,000/- (Rupees Two Lakhs) per month was invested by both the complainants from 1st August, 2017 to 1st August, 2018, i.e., for a period of 8 months (8 months × Rs. 2,00,000/- × 2 = Rs. 16,00,000/-). The entire payment of Rs. 16,00,000/- was made in cash.
K.It is further the case of the complainant that, after coming to know that the aforesaid committees were illegal and unregistered, the complainants stopped making further payments in the month of April and asked for the return of the amount already paid by them. However, the said amount is being illegally retained by Shri Applicant's father's name, his wife and their son.
L.It is further the case of the complainant that Shri Applicant's father's name and his son started another committee/chit amounting to Rs. 18,00,000/- (Rupees Eighteen Lakhs only) for a total period of 15 months, and again induced the complainants to invest money in the same. The inducement extended to persuading the complainants' relatives also to invest money in the said chit.
M.It is further the case of the complainant that, accordingly, the complainants spoke to their other relatives, namely Shri Relative investor 1's name and Shri Relative investor 2's name, to invest money in the said chit. Both the complainants invested Rs. 1,20,000/- each (Rupees One Lakh Twenty Thousand only) from 12th April, 2017 to 13th March, 2018, i.e., for a period of 12 months (12 months × Rs. 1,20,000/- × 2 = Rs. 28,80,000/-), whereas Shri Relative investor 1's name and Shri Relative investor 2's name jointly paid Rs. 1,20,000/- per month from 12th April, 2017 to 13th March, 2018, totalling Rs. 14,40,000/-.
N.It is further the case of the complainant that the complainants, along with their two relatives, namely Shri Relative investor 1's name and Shri Relative investor 2's name, invested a sum of Rs. 43,20,000/- (Rs. 28,80,000/- + Rs. 14,40,000/- = Rs. 43,20,000/-) in the said scheme, which payment was made in cash.
O.It is further the case of the complainant that, after coming to know that the aforesaid committees were illegal and unregistered, the complainants stopped making further payments in the month of April and asked for the return of the amount already paid by them. However, the said amount is being illegally retained by Shri Applicant's father's name, his wife and their son.
P.It is further the case of the complainant that Shri Applicant's father's name and his son started another committee/chit amounting to Rs. 9,00,000/- (Rupees Nine Lakhs only) for a total period of 9 months.
Q.It is further the case of the complainant that the complainants were again induced, and they invested in the third chit fund an amount of Rs. 60,000/- (Rupees Sixty Thousand only) per month from 5th May, 2017 to 5th March, 2018, i.e., for a period of 11 months (11 months × Rs. 60,000/- = Rs. 6,60,000/-).
R.It is further the case of the complainant that the complainants invested in the said scheme, wherein Rs. 6,60,000/- each, totalling Rs. 13,20,000/-, was paid by the complainants in cash.
S.It is further the case of the complainant that, after coming to know that the aforesaid committees were illegal and unregistered, the complainants stopped making further payments in the month of April and asked for the return of the amount already paid by them.
T.It is further the case of the complainant that the said amount has also not been paid, and on the other hand, the applicant threatened the complainants with implication in false cases should they dare to demand any amount from him.
4.That when the Applicant came to know about the registration of the present FIR, the Applicant immediately moved an application for grant of anticipatory bail before the Ld. Sessions Court at Rohini, Delhi; however, the said application was declined and dismissed by the Ld. Sessions Court vide order dated 29.04.2022. A copy of the order dated 29.04.2022 passed by the Ld. Sessions Judge is annexed hereto as Annexure P-3.
5.That the Applicant is filing the present bail application before this Hon'ble Court on the following, amongst other, grounds, which are taken without prejudice to one another:
-: GROUNDS :-
A.That the transactions alleged in the FIR were purportedly made in cash by complainant no. 1 and complainant no. 2; no such payment was in fact made, and there is no proof of any of the transactions falsely alleged in the present FIR.
B.That the Applicant is a reputed businessman and is not involved in any kind of chit fund business as alleged in the FIR.
C.That the Applicant is the owner of M/s Jewellery firm name Jewellery, and the entire control of the firm was with him. It is therefore necessary to state that no such chit fund scheme was conducted by the Applicant.
D.That the complainant is a business rival of the Applicant, and the present FIR has been lodged at his instance with motivated intent.
E.That the complainant has failed to prove payment of the alleged huge amount of Rs. 83.25 Lakhs towards the chit funds.
F.That the facts stated in the FIR against the Applicant are civil in nature and do not constitute any criminal offence whatsoever.
G.That the Applicant is ready to undertake to assist in the investigation and shall always make himself available as and when required by the investigating agency or directed by the Court.
H.That in the facts and circumstances of the present case, it is respectfully submitted that no case is made out against the Applicant. It is well-settled law that even where a prima facie case is established, the approach of the Court in the matter of anticipatory bail is not to detain the accused in jail by way of punishment, but to consider whether the presence of the accused is readily available for investigation, or whether the accused is likely to abuse the concession of bail by hampering the evidence. The discretion conferred upon this Hon'ble Court under Section 438 of the Cr.P.C. is wide, and is to be exercised in accordance with the established principles of law.
I.That the allegations against the Applicant are absurd and inherently improbable, and on the basis thereof no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the Applicant. Hence, viewed from any angle, the vague accusations against the Applicant constitute a sheer and complete misuse and abuse of the process of law.
J.That it is pertinent to note that in the case of ARNESH KUMAR VS. STATE OF BIHAR, reported in MANU/SC/0559/2014, 2014 (3) Bom C.R. (Cri) 262, the Hon'ble Apex Court laid down certain guidelines to be followed by the police and the courts, holding that under Section 41D of the Cr.P.C. the police are bound to issue notice, and categorically observed that the respondent police ought not to arrest accused persons without due notice or summons. Hence, the Applicant is entitled to pre-arrest bail. The Hon'ble Apex Court observed: "Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrates do not authorize detention casually and mechanically."
K.That it is to be noted that the intention to commit an offence is the main ingredient constituting the offence under any statute 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 enunciates that a criminal act cannot constitute an offence without a guilty mind. In the instant matter, the prosecution has failed to point out that the Applicant acted in furtherance of any common intention or object as alleged. Hence, the Applicant not only lacks mens rea but also the ulterior object in the commission of the alleged offence, which is known as "motive".
L.That the manner in which the Applicant is alleged to have been involved in the commission of the offence has not been made out by the prosecution, and the material collected during the investigation casts a serious doubt on the prosecution's story itself;
M.That the custodial interrogation of the Applicant is not required in this alleged false, concocted and frivolous complaint; further, the prosecution has nowhere spelled out any wrong committed by the Applicant, and hence the custody of the Applicant is not warranted;
N.That it is a basic principle of criminal jurisprudence that the Applicant is to be considered innocent until held guilty.
O.That the Hon'ble Supreme Court has recently held in a case as follows:-
“The law of bail dovetails two conflicting interests, namely, on the one hand, the requirements of shielding society from the hazards of those committing crimes and the potentiality of repeating the same crime while on bail, and on the other hand, absolute adherence to the fundamental principle of criminal jurisprudence regarding the 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 an earlier occasion. The court should also examine 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, strict action will be taken against him in accordance with law. If connivance between the complainant and the investigating officer is established, action shall be taken against the investigating officer in accordance with law.
(ii)The gravity of the 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 may 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 evaluate the facts of the case carefully and with meticulous precision. 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, is fully cooperating with the investigating agency, and is not likely to abscond, custodial interrogation ought to be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but also 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 and arrest at a post-conviction stage.
(iv)There is no justification for reading into [Section 438](https://indiankanoon.org/doc/1783708/)
CrPC the limitations mentioned in [Section 437](https://indiankanoon.org/doc/848468/)
CrPC. The plentitude of [Section 438](https://indiankanoon.org/doc/1144664/)
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. Such a requirement would virtually reduce the salutary power conferred by [Section 438](https://indiankanoon.org/doc/1783708/)
CrPC to a dead letter. A person seeking anticipatory bail is still a free person entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom by accepting such conditions as 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 is that, after evaluating the averments and accusations available on the record, if the court is inclined to grant anticipatory bail, 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 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 of, or for modification of the conditions of, the anticipatory bail at any time if the 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 bail also has the power to cancel it. The discretion to grant or cancel bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, upon 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, it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.
(viii)The 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 in the court under [Section 438](https://indiankanoon.org/doc/1783708/)
CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and to 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 laid down for the grant or refusal of anticipatory bail, because all circumstances and situations of the future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention, the grant or refusal of anticipatory bail must necessarily depend upon the facts and circumstances of each case.
(x)We shall also reproduce paragraph 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 fleeing from justice;
(d)The possibility of the accused's likelihood to repeat similar or other offences;
(e)Whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(f)The impact of the 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. In cases where the accused is implicated with the help of [Sections 34](https://indiankanoon.org/doc/37788/)
and [149](https://indiankanoon.org/doc/999134/)
of the Penal Code, 1860, the court should consider the matter with even greater care and caution, because over-implication in such 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, that no prejudice should be caused to a free, fair and full investigation, and that there should be prevention of harassment, humiliation and unjustified detention of the accused;
(i)The court should consider any reasonable apprehension of tampering with the witnesses, or any apprehension of threat to the complainant;
(j)Frivolity in the prosecution must always be taken into account, and it is only the element of genuineness that must be considered in the matter of grant of bail. Where there exists some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
P.That the Applicant / accused is a permanent resident of City where the accused is a permanent resident having deep roots in society and is residing at the above-mentioned address. There is, therefore, no likelihood of the Applicant / accused absconding or tampering with the prosecution evidence.
Q.It is further submitted that the alleged offence being an act of an individual nature, the Applicant cannot be roped into the present matter under the garb of Section 406 of the IPC, Sections 4/11/76 of the Chit Fund Act, and Sections 3/4/5/6 of the Prize Chits & Money Circulation 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.
Inasmuch as the alleged act, as set out hereinabove, is attributed to an individual, no liability of whatsoever nature under the said offence can be fastened upon the Applicant.
R.It is further submitted that there is no evidence against the Applicant disclosing any complicity in the alleged offence. Furthermore, there is no material whatsoever indicating the involvement of the Applicant in the present case, and hence the Applicant is entitled to be granted anticipatory bail.
S.That the Applicant cannot be roped into the present case on the principle of vicarious liability, and there is no evidence against the Applicant suggesting that he aided, instigated or engaged in the commission of the alleged offence.
T.That the Applicant cannot be arrayed as an accused in the present case merely on the basis of false presumptions.
U.In view of the guidelines laid down by the Hon'ble Supreme Court in the matters of SATENDER KUMAR ANTIL VS. CBI and RYAN AUGUSTINE PINTO VS. STATE OF HARYANA; (2017) SCC ONLINE P&H 3063, the Applicant is entitled to the grant of anticipatory bail.
V.That sending the Applicant to jail would serve no meaningful purpose and would be in defiance of every known notion of justice. It is submitted that the Applicant is honest and innocent, and has been falsely implicated in the present FIR with mala fide, dishonest and bogus intentions to extort money from the Applicant. It is submitted that the Applicant may be enlarged on anticipatory bail so as to enable him to live a respectful and dignified life in society.
W.Because, if the initial action is not in consonance with law, the principle laid down in a catena of judgments of the Hon'ble Supreme Court applies.
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 the presence of the accused during the trial.
Y.It is settled law that bail is a rule and jail is an exception. This principle has been recognised since the days of the Magna Carta. The provision for bail is therefore age-old, and the liberal interpretation of the provisions relating to 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 once again upheld the fundamental principle of criminal jurisprudence of "bail and not jail", and has observed that it has been stated time and again that bail is the rule and committal to jail an exception. It has also been observed that the 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 Mhetre Vs. State of Maharashtra (2011) 1 SCC 694, the 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.The Hon'ble Apex Court, in the case of Vaman Narain Ghiya Vs. State of Rajasthan Citation of Vaman Narain Ghiya case, held 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 of bail lies within the discretion of the Court. The grant or denial thereof is regulated, to a large extent, by the facts and circumstances of each particular case. At the same time, the 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 in custody pending the trial, and at the same time to keep the Applicant constructively in the custody of the Court, whether before or after conviction, so as to assure that he will submit to the jurisdiction of the Court and remain in attendance thereon whenever his presence is required.
DD.That there is no good reason to detain the accused in custody, more particularly after the completion of the investigation. The Hon'ble Supreme Court, in the case of State of Kerala Vs. Raneef (2011) 1 SCC 784, has observed 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, the 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 on 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 the Applicant is a person of reputed standing in business, enjoys clean antecedents, and holds no influence over the prosecution witnesses; there is, therefore, no likelihood of tampering with the said witnesses.
GG.That, as per the settled jurisprudence relating to bail, the endeavour of the Court is to maintain a balance between personal liberty and societal security. A first-time offender having no criminal antecedents is required to be considered on a different footing. Further, where the Applicant has deep roots in society, his detention deserves to be avoided.
HH.That the Applicant has not committed any offence. The present case is a sheer outcome of the vendetta harboured by the complainant against the Applicant, who has prevailed upon the witnesses to make false statements, and the Applicant / accused has accordingly been falsely implicated in the present case.
5.That the Applicant is ready and willing to furnish surety to the entire satisfaction of this Hon'ble Court.
6.That Section 438 Cr.P.C. itself provides that, while granting anticipatory bail, the Court may impose conditions that such person shall not commit an offence similar to the offence of which he is accused or suspected of having committed.
7.That it is respectfully submitted that the Applicant bears a clean record and has never been convicted in any case in the past. It cannot, under any circumstances, be construed that the Applicant has a bad record which suggests that he is likely to commit similar or serious offences while on bail.
8.That the Applicant has deep roots in society, and there is absolutely no chance of the Applicant absconding from the course of justice or tampering with the evidence.
NON-FILING PARA :-
9.That no similar petition has been filed by the Applicant before this Hon'ble Court, the Hon'ble Supreme Court of India, or any other Court.
10.That the annexures filed along with 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 his arrest in FIR No. FIR number under Section 406 IPC, 4/11/76 Chit Fund Act & 3/4/5/6 Prize Chits & Money Circulating Act registered at P.S. Police station, Delhi, in the interest of justice, and on such terms and conditions as this Hon'ble Court may deem fit and proper; and
b)Pass any other order as this Hon'ble Court may deem necessary and appropriate in the facts and circumstances of the present case.
FOR THIS ACT OF KINDNESS, THE APPLICANT SHALL, AS IN DUTY BOUND, EVER PRAY.
DELHIAPPLICANT
THROUGH
DATED:ADVOCATE