9911796707
TMI Blog2001 (4) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... rs filed a petition under section 239 of the Code of Criminal Procedure, 1973, to discharge them from the case. Act No. 44 of 1997 came into force with effect from 7-8-1997. The period of commission of offence alleged in the final report is prior to 29-7-1993, and lasted up to 16-12-1996. There cannot be any retrospective effect to the penal law and as such Act No. 44 of 1997 is not applicable to the case of the petitioners. Offences under section 120B read with sections 420 and 409 of the Indian Penal Code, could be tried by ordinary criminal courts, while so, trial of such offences by the Special Court will cause prejudice to the accused as if they are aggrieved by the outcome of the trial, they have to go in appeal only to the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . After hearing the parties, the learned judge, dismissed the application and aggrieved against this, the present revision is filed. 5. Heard learned counsel for the parties. 6. The points that arise for consideration are : ( i )whether Act No. 44 of 1997 can be made applicable to the case of the petitioners ? ( ii )whether the order passed by the court below is proper and correct? Points : The petitioners are A4 and A6 in C.C. No. 13 of 1998 on the file of the trial court. They along with the other accused have been charge-sheeted for the offence under sections 120B, 409 and 420 of the Indian Penal Code and also under section 5. According to the charge-sheet, prior to 29-7- 1993, at Chennai, A1 to A11 have entered into a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 came into force on 7-8-1997, whereas the period of offence was prior to 29-7-1993, and as such they cannot be charged for the offence under section 5. If that is so, then the petitioners can be tried by a regular criminal court and there is no necessity for them to face the trial before the Sessions Court and first petitioner being a doctor and the second petitioner being a housewife had retired from the partnership, they cannot be made liable for the offences. Even as per section 5 the persons who are responsible for the management alone are liable to be prosecuted. There is no nexus to implicate them in the alleged offences. The learned Special Judge erred in calling in aid the provisions of section 13(1). Hence, the application filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave entered into conspiracy or committed offences of cheating and breach of trust. 8. The learned senior counsel for the revision petitioners relied on Rao Shri Bahadur Singh v. State of Vindhya Pradesh AIR 1953 SC 394; R.S. Kalakpur v. State of Karnataka [1994] Crl. LJ. 2696 and Soni Devrajbhai Babubhai v. State of Gujarat AIR 1991 SC 2173, and these decisions are not applicable to the case on hand. Article 20(1) reads as follows : " Protection in respect of conviction for offences. (1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a District and Sessions Judge. 12. According to sub-section (3), any pending case in any other court to which the provisions of the Act apply shall stand transferred to the Special Court. 13. Section 13(1) relates to procedure and powers of the Special Court regarding offences. The Special Court may take cognizance of the offence without the accused being committed to it for trial and in trying the accused person, shall, follow the procedure prescribed in the Code of Criminal Procedure, for the trial of warrant cases by magistrates. The provisions of the Code of Criminal Procedure, shall, so far as may be, apply to the proceedings before a Special Court and for the purpose of the said provisions a Special Court shall be deemed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial institution is not an offence committed by any deposit holders. Only if the deposit amount is not returned on the matured date or if the financial company failed to pay the interest on the due date, then alone section 5 is attracted. Now, the period mentioned in the charge-sheet is only the period of deposit made by the deposit holders. Although 675 deposits have been collected by the financial company, yet the charge-sheet has been laid only in respect of 144 deposit holders because their amount of principal as well as interest matured only after 7-8-1997, and admittedly, the petitioners and other accused have failed to make repayment. A plain reading of section 5 itself clearly indicates that where any financial establishment de ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
