Calcutta High Court (Appellete Side)
Bidesh Basu vs Securities & Exchange Board Of ... on 9 September, 2022
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
CRR 2181 of 2022
With
I.A. No. CRAN/1/2022
Bidesh Basu
-Vs-
Securities & Exchange Board of India
For the Petitioner: Mr. Ayan Basu, Adv.,
Mr. D.N. Maiti, Adv.,
Mr. Sumit Routh, Adv.
For the S.E.B.I:- Mr. Sandipan Ganguly, Ld. Sr. Adv.,
Mr. Sudip Kr. Dutta, Adv.
Heard on: 17 August, 2022.
Judgment on: 09 September, 2022.
BIBEK CHAUDHURI, J. : -
1.
The petitioner is the accused No.4 in connections with SEBI Case
No.32 of 2018.
2. The aforesaid case has been registered in the 5th Special Court
(SEBI) at Calcutta on the basis of a complaint for prosecution for violation
of Sections 56/60/67/68/70 read with Sections 2(36)/73 of the
Companies Act, 1956 read with Section 40 of the Companies Act, 2013
and Regulation 3 of the Securities and Exchange Board of India
(Prohibition of Fraudulent and Unfair Trade Practices relating to
Securities Market) Regulations, 2003 and Regulations
6/19/4(2)/5(2)(b)/8 of the Securities and Exchange Board of India (Issue
and Listing of Debt Securities) Regulations, 2008 read with Sections 117B
and 117C of the Companies Act, 1956 and Section 12 of the Securities
and Exchange Board of India Act, 1992.
3. It is alleged in the petition of complaint that the complainant, a
statutory body, conducted an examination with respect to illegal fund
mobilization by the accused No.1/company available from the
correspondences exchanged between the complainant and the said
company along with the documents contained therein, information
obtained from the Ministry of Corporate Affairs website under the name
and style of "MCA 21 Portal" and it was found that during the financial
years 2011-12, 2012-13 and 2013-14, the accused No.1/company had
raised an amount of at least Rs.4.34 crore, Rs.14.20 crore ad Rs.19.36
crore respectively by issuing Non-Convertible debentures to huge number
of investors during each of the said financial year. Therefore, the accused
No.1 on an aggregate had allotted Non-Convertible Debentures to at least
14256 persons, thereby making it a public issue of securities. This was
done without complying with the regulatory provisions applicable to
public issue.
4. The learned Special Judge took cognizance of offence against the
accused persons including the present petitioner who has been arrayed as
accused No.4 on the allegation that at the relevant point of time he was
one of the directors of accused No.1/company.
5. Learned Judge issued warrant of arrest against the accused
persons following the ratio of decision of this Court passed in CRR
No.1137 of 2015 (Shibamoy Dutta & Ors. vs. Monoj Kumar).
Subsequently, some of the accused person other than the present
petitioner surrendered before the trial court and were granted bail.
6. The petitioner, on the other hand filed an application under Section
70(2) of the Code of Criminal Procedure praying for recalling the warrant
of arrest issued against him by the Trial Judge. The learned Judge by
passing a reasoned order rejected the said application.
7. Being aggrieved, the petitioner has assailed the order dated 6th May,
2022 in the instant revision.
8. It is submitted on behalf of the petitioner that at the relevant point
of time when the accused No.1/company was said to have committed
offence, the petitioner was not a director of accused No.1/company.
9. Such contention of the petitioner is not sustainable in view of the
fact that the petitioner himself has filed a document uploaded in the
official portal of the Ministry of Corporate Affairs wherefrom it is
ascertained that the petitioner was appointed as a director of accused
No.1/company on 4th November, 2013 and he remained as director till
23rd August, 2014. Thus, the petitioner was one of the directors of
accused No.1/company during the financial year 2012-13 and 2013-14.
10. It is rightly observed by the learned Trial Judge that an offence
under the SEBI Act is punishable for imprisonment which may extend to
ten years.
11. It is submitted on behalf of the petitioner that in view of the
decision of the Hon'ble Supreme Court in Satender Kumar Antil vs.
Central Bureau of Investigation & Anr. reported in (2021) 10 SCC 773
the initial order passed by the learned Trial Judge issuing warrant of
arrest against the petitioner and other accused persons after taking
cognizance is bad in law because ordinarily summons ought to have been
issued at the first instance against the petitioner permitting him to appear
through his lawyer. If the petitioner failed to appear before the trial court
the learned Judge was empowered to file bailable warrant. At the third
stage, if the petitioner failed to surrender before the court in pursuance to
bailable warrant, the trial court was empowered to pass an order issuing
non-bailable warrant against the accused/petitioner. On the same
analogy, it is submitted on behalf of the petitioner that the impugned
order dated 6th May, 2022 is illegal, inoperative and the learned trial judge
failed to act within his power vested under the law.
12. In Satender Kumar Antil (supra) the Hon'ble Supreme Court has
categorized the offences into four groups:-
A) Offences punishable with imprisonment of 7 years or less not
falling in Categories B and D.
B) Offences punishable with death, imprisonment for life, or
imprisonment for more than 7 years.
C) Offences punishable under Special Acts containing stringent
provisions for bail like NDPS (Section 37), PMLA (Section 45),
UAPA [Section 43s-D(5)], Companies Act [Section 212(6)], etc
D) Economic offences not covered by Special Acts.
13. Obligation to issue summons against the accused persons after
filing of charge-sheet/complaint taking of cognizance arises in respect of
the offences falling under Category-A mentioned hereinabove. In respect
of the offences mentioned in Categories-B, C and D, the guideline made by
the Hon'ble Supreme Court in respect of Category-A is not applicable.
14. For the reasons stated above, I do not find any illegality or material
irregularity in the order dated 6th May, 2022 passed by the learned
Special Judge, 5th Court at Calcutta.
15. The instant criminal revision is devoid of any merit and accordingly
dismissed on contest.
16. The parties are at liberty to act on the server copy of this order.
(Bibek Chaudhuri, J.)
