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TMI Blog2013 (9) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... imated that the petitioner company is not going to raise any fund in future from the public under the collective investment scheme and is going to wind up the company and going to return the money to the investors. 3. Ld. Counsel for the petitioner submitted that, thereafter, the respondent filed a complaint case in the Court of ACMM, Delhi without having territorial jurisdiction which was subsequently re-numbered as CC No.19/5 on 26.11.2009. 4. Vide its order dated 16.09.2009 the ld. Trial Court dispensed with the statement of the accused under Section 313 of the Cr.PC and fixed the case for D.E. 5. Being aggrieved, the petitioner filed a Revision Petition bearing No.51/2009 in the Court of District and Sessions Judge, Delhi. The same was dismissed vide order dated 19.10.2010. 6. Ld. Counsel for the petitioner submitted that had the respondent filed the complaint case at Lucknow, the petitioner would have produced all the investors who have received their amount but they are not ready to come to Delhi to depose in favour of the petitioner. In fact, the Delhi Courts have no jurisdiction to try and adjudicate upon the complaint case filed by the respondent because of the fact th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing up and repayment report) has not been filed by the accused till date. The cause of action therefore, has accrued in Delhi. 11. Ld. Counsel for the Respondent No.1 has further contended that it is also pertinent to mention that the Accused Company also had its office at New Delhi at B-30, Safdurjang Enclave, New Delhi, within territorial jurisdiction of Delhi Courts. The Communication received on the letter head of the company thereby disclosing the office of the accused company is on record. 12. It is also pertinent to mention that the SEBI vide its public notice dated 18.12.1997 had informed the respective entities to furnish the requisite details to the respective regional offices of the SEBI, and in the present case it happened to be the Northern Regional office at New Delhi. 13. Ld. Counsel for the Respondent No.1 has pointed out that the Present petition is hopelessly time bared as the complaint was filed before the Ld. ACMM on 24.12.2001, and the present petition is preferred in the year 2011 when the case is at fag end of trial and when the matte is fixed for defence evidence. The Petition is liable to be dismissed on this account alone. 14. Ld. Counsel for the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d till date have not complied with the provisions of the SEBI (CIS) Relegations 1999 by filing of the requisite report with SEBI as laid down in the regulation 73. 19. Ld. Counsel for the Respondent No. 1 submitted that the present case against the petitioner and the co accused is for violation of provision of SEBI Act, non compliance of SEBI Collective investment schemes and non compliance of the directions issued by SEBI under section 11B of the SEBI Act. The said compliance was to be done at New Delhi and not at Lucknow. Therefore, the Section 181(4) Cr. P.C. has no bearing or application in the present case and section 179 of the Cr. P.C. shall apply in the present facts and circumstances. That the Hon'ble Supreme Court in the matter titled as K. Bhaskaran v. Sankaran Vaidhyan Balan [1999] 7 SCC 510 in Para 11 and 12 have held as under:- "11. We fail to comprehend as to how the trial court have found so regarding the jurisdiction question. Under Section 177 of the Code "every offence shall ordinarily be enquired into and tried in a court within whose jurisdiction it was committed". The locality where the Bank (which dishonoured the cheque) is situated cannot be regarded as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. As per Section 12(1B) of the Act, no person shall sponsor or cause to be sponsored or carry on or cause to be carried on any venture capital funds or collective investment scheme including mutual funds, unless he obtains a certificate of registration from the SEBI in accordance with the Regulations. The proviso to this sub-section provides that any person sponsoring or cause to be sponsored, carrying or causing to be carried on any venture capital fund or Collective Investment Scheme operating in the securities market immediately before commencement of the Securities Law (Amendment) Act, 1995 for which no certificate of registration was required prior to such commencement, may continue to operate till such time regulations are made under Clause (b) sub-Section (2) of Section 30. Regulations 68(1) provides that any person who has been operating a C.I.S. at the time of commencement of these regulations, shall be deemed to be an existing CIS and shall also comply with the provisions of this chapter. Sub-clause (2) directs the applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormation memorandum shall be sent to the investors within one week from the date of the information memorandum. (6) The information memorandum shall explicitly state that investors desirous of continuing with the scheme shall have to give a positive consent within one month from the date of the information memorandum to continue with the scheme. (7) The investors who give positive consent under sub-regulation (6) shall continue with the scheme at their risk and responsibility: Provided that if the positive consent to continue with the scheme, is received from only twenty-five per cent or less of the total number of existing investors, the scheme shall be wound up. (8) The payment to the investors shall be made within three months of the date of the information memorandum. (9) On completion of the winding up, the existing collective investment scheme shall file with the Board such reports, as may be specified by the Board. Existing scheme not desirous of obtaining registration to repay 74. An existing collective investment scheme which is not desirous of obtaining provisional registration from the Board shall formulate a scheme of repayment and make such repayment to the existing i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction of Delhi Courts. More so, the communication received on the letter head of the company thereby disclosing the office of accused company is on record, at Delhi. 29. It is pertinent to mention here that respondent no. 2 SEBI vide its public notice dated 18.12.1997, had informed the respective entities to furnish the requisite details to the respective Regional Offices of the SEBI, from Delhi itself. 30. In the present case, even the Lucknow happens to be in Northern Region, therefore, Delhi courts have no jurisdiction. It is also an important factor that SEBI do not have its Office at Lucknow. The petitioner and the co-accused sponsored and caused to be sponsored Collective Investment Schemes called as CIS without getting the mandatory registration from Complainant/Respondent SEBI, and thereby violated the provisions of section 12 (1B) of the SEBI Act, 1992. 31. The petitioner and other person persons in charge of the affairs of the Accused Company, were required to wind up the existing Collective Investment Schemes and after repayment to the investors in the process prescribed in Regulation 73, the company was required to file a report with the SEBI on prescribed for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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