KHAMAR JAHAN SHAIK Vs. STATE OF TELANGANA

JUDGEMENT

(1.) The petitioners are accused Nos.5 to 9 in crime No.170 of 2018 of CCS, DD, Hyderabad, registered for the offences punishable under Sections 406 & 420 IPC and Section 5 of Telangana Protection of Depositors of Financial Establishments Act, 1999 (for short 'the Act 1999') and also Sections 3 to 6 of the Prize Chits and Money Circulation Scheme (Banning) Act, 1978 (for short 'the Act 1978') and they are now seeking anticipatory bail under Section 438 Cr.P.C.

(2.) The crime was registered from the report of Smt. Farzanaunisa Begum W/o. Mohammed Khaja of Hyderabad dated 10.09.2018, which allegations in the report in registration of the crime reads (originally it appears crime No.870 of 2018 registered on 10.09.2018 by Banjara Hills Police Station for the offences other than under the Act 1978 and later entrusted to the Assistant Commissioner of Police, CCS, DD, Hyderabad, Division-A for investigation from transfer to CCS police by re-registration of the FIR in crime No.170 of 2018 dated 04.10.2018 supra) that her husband named supra a heart patient with hypertension who is working abroad and invested Rs.25,00,000/- in Heera Retail Private Limited and Heera Textile Private Limited by cheque bearing No.649216 dated 18.06.2018 and they issued a purchase receipt No.HG2013SA151526 of even date, whenever her husband calls the customer care of M/s. Heera entity supra to block her IBG and refund the money which is not invested, they were sending mails with false response and she and her husband went to Heera Gold at Banjara Hills on 07.07.2018 and given a written letter to give back their amount which was not invested lying with them and Mr. Jaweed, employee of entity Heera supra received the same saying they are going to refund by 45 days and issued letter to that effect with stamp and signature on behalf of the entity and after 45 days on 27.08.2018 when they went they were made to sit till evening during the whole day by assuring of they are transferring of their money back and while closing the office at 5 PM everybody left saying one or other left and asked to come on 31.08.2018 so that to transfer the amount to their account and on that day when they went they forcibly asked her to accept and sign the document to refund in 2 months by 30.10.2018 else by threat that if she goes to the police station they will not refund any money and there is also threat from the accused entity to the life of her and her husband. They have no permission of RBI in accepting deposits much less from SEBI and they were calling bouncers and rowdies in threatening her and now Heera Shaik and her associates advertised of she is MD of Heera Group of Companies induced the halal policy on Islamic religious law in assets management real estate, securities, stocks, bonds, shares and mutual funds asking gullible public to invest minimum of Rs.50,000/- for 6 months on assured benefit of 40%, 20% towards taxes to the Government with indemnity to return in cash or gold and their associates Thomas, Mouli, Amer are taking care of Banjara Hills office and fake promises and not even paying any profits and not responding to the calls to refund, they cheated and misappropriated the amount which are hard earned money and savings of them and there is big hawala racket with money laundering in cheating the innocent public of the whole country.

(3.) The contentions in the bail application vis- -vis oral submissions of the learned counsel for the petitioners Sri DH Shaik represented by senior counsel Sri CV Mohan Reddy are that under Heera Group of Companies, there are several companies incorporated under the Companies Act and of whom Heera Gold Exim Limited is one such, said company initially incorporated in 2010 as a private limited company later converted into public limited company in 2011, with the objects "to carry in India or elsewhere the business to buy, sell, import, export, wholesale, retail and to act as agent, broker, job worker, consignor, contractor, vendor, collaborator, stockiest, distributor or otherwise to deal in all shapes, sized, varieties, designs, applications, combinations and uses of apparel, ornaments, gems, jewelleries, goods, watches, clocks, cutleries, articles and materials thereof made partly or wholly of gold and other related business activities." In the course of its business activities Heera Gold Exim Limited announced a scheme inviting the purchasers to buy the gold units @ Rs.25,000/- per unit to utilize the amount by the company for purchase and sale of gold in conducting gold trade and the gross trade declaration will be generated every quarterly viz., August, November, February and May of every year and gross trade declaration derived will be shared between the company and the customer in the ratio of 60:40 and there is lock-in period of one year for getting the benefit of gross trade declaration and any customer willing to withdraw the money within the lock-in period will be allowed for withdrawal remittance after 5th month from the date of purchase of gold unit, without the benefit of gross trade declaration, the entire transactions relating to purchase of gold units or withdrawal remittance will be through online bank transaction, the process of confirmation of purchase of gold units will be done by the company within one month from the date of remittance of purchase money from customer, for each purchase, the customer will be issued a valid receipt and the withdrawal remittance also should be made online. The defacto-complainant's husband purchased 100 gold units from Heera Gold Exim Limited on 18-06-2018 by issued cheque for Rs.25,00,000/- and he was issued a purchase receipt by the company and even before confirmation of said purchase, started demanding for withdrawal orally without making any request for withdrawal remittance online and lodged complaint on 10-09-2018 with untrue averments. The defacto-complainant herself was one of the customers who purchased 62 gold units on 14-02-2018 and she was benefited with gross trade declaration and the amounts transferred to her periodically and she and her husband knows the procedure and the terms and conditions of purchase of gold units and having aware started demanding for refund and chosen to give complaint for reasons best known, that too falsely though there are remedies available under law to enforce any civil rights in appropriate civil forum and the giving of police complaint with publicity and created panic among other customers is untenable. It is also contended that even on face value of the allegations no offence made out and police without conducting preliminary enquiry registered the crime. The accused No.1 as the Managing Director of the company was arrested on 15-10-2018 and later was granted regular bail in Crl.M.P.No.3229 of 2018 by Metropolitan Sessions Judge, Hyderabad, and by virtue of the registration of other crimes, she was produced on PT warrants in other Courts and bail granted in Crl.M.P.No.3229 of 2018 was cancelled by another bench of this Court in Crl.P.No.11354 of 2018 and SLP(Crl).No.10285 of 2018 filed by A.1 before the Apex Court was dismissed on 14-12-2018 and while stood thus, the petitioners and another by name Molly Thomas were issued notices by the C.C.S., D.D., Hyderabad police under sections 91/160 Cr.P.C. on 06-11-2018 and they filed Crl.M.P.No.3464 of 2018 for anticipatory bail and Molly Thomas pursuant to the notice appeared was arrested and she was remanded to judicial custody and her anticipatory bail became infructuous and the application of the petitioners was dismissed by the learned Sessions Judge on 03-12-2018. The offences for which the crime registered under Sections 406 & 420 IPC and Section 5 of the Act, 1999 and Sec.3 to 6 of the Act, 1978 no way applies to the facts on hand much less against the petitioners who are Directors of the company and if all they are also being arrested, the entire business activities of the company become stand still which may lead to forcible winding up, which is impermissible under law. It is also contended that in the year 2012, crime No.154 of 2012, dated 14-08-2012 registered by the C.C.S. police under section 420, 406 r/w section 34 of IPC against accused No.1 on the complaint of one Member of Parliament dated 01-08- 2012, where accused No.1 was granted anticipatory bail by the Metropolitan Sessions Judge, Hyderabad in Crl.M.P.No.3460 of 2012 by order dated 27-09-2012 and later the company activities continued all through and several customers benefited by purchase of gold units and the company is lawfully carrying the business activities. The learned Sessions Judge did not properly consider the facts supra in dismissal of the anticipatory bail application referred supra and there is no any illegal activities to register any crime for the sin of pursuing the business activities as part of fundamental right and the company never cheated its customers and the allegations of the defacto complainant are untrue and the police under the guise of issuing notices are bent upon to arrest on appearance. If at all there is any offence there are penal provisions under Sections 211 & 212 of the Companies Act 2013 and the present crime no way survives and as such, the petitioners are entitled to anticipatory bail.