IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.12.2021 CORAM : THE HONOURABLE MR. JUSTICE B. PUGALENDHI Crl.O.P.No.25830 of 2021 Diwagar @ Raja

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.12.2021
CORAM :
THE HONOURABLE MR. JUSTICE B. PUGALENDHI
Crl.O.P.No.25830 of 2021
Diwagar @ Raja
Proprietor of Fabbcut Technology (E-Tailor)
No.2, PM Nagar,
Seelanayakkanpatty,
Salem – 636 201. … Petitioner
Vs.
State represented by
The Inspector of Police, Economic Offences Wing, Salem District.
Crime No.4 of 2021 … Respondent
PRAYER: Criminal Original Petition filed under Section 438 of Code of Criminal Procedure to enlarge the petitioner on bail in the event of his arrest in Crime No.4 of 202 on the file of the respondent Police.
For Petitioner : Mr.J.Jayan
For Respondent : Mr.A.Gokulakrishnan
Additional Public Prosecutor
O R D E R
The petitioner, who is the sole accused in Crime No.4 of 2021 on the file of the Economic Offences Wing, Salem District, apprehends arrest for the offences under Sections 120-B, 420 IPC and Section 5 of Tamil Nadu Protection of Interest of Depositors (in Financial Establishment) Act, 1997 (“TNPID Act” for brevity) and seeks
anticipatory bail.
2.The prosecution case is that the petitioner made certain advertisement in the social media and in the YouTube, calling for applications for establishing e-Tailoring Unit. Influenced over the advertisement, the de facto complainant and others have approached the petitioner for establishing franchise units in their respective areas and also entered into an agreement with the petitioner. The petitioner had received amounts from the de facto complainant and others with an assurance that he would provide machineries as well job opportunities. However, the petitioner failed to render job and therefore, the de facto complainant requested to cancel the agreement and to return the money deposited by him. The petitioner evaded. Hence, the complaint.
3.The learned counsel for the petitioner submits that the proposed business activity of this petitioner does not come under the TNPID Act. The petitioner has invited applications for his business of e-Tailoring and provided machineries for that business. An agreement was also effected between the parties. He further submits that, if there is any violation of the terms and conditions of the agreement, the remedy available to the de facto complainant is under the protection law only before the appropriate Civil Court, however, a criminal case has been foisted as against this petitioner. He further submits that, as per the terms of the agreement, the petitioner has provided machineries to the de facto complainant and others. However, they could not arrange for the job work in view of the present pandemic situation. The complainant, with an ill intent to bypass the civil proceedings, has lodged this complaint with a criminal colour and the respondent Police has also registered a case in a mechanical manner, including the provisions under the TNPID Act, even without ascertaining whether the petitioner firm is a financial institution or not.
4.The learned Additional Public Prosecutor appearing for the respondent opposed the bail application vehemently that this petitioner has collected several Crores of rupees from various persons and cheated several persons. According to him, investigation is in the initial stage and he could not ascertain the volume of fraud committed by this petitioner and only by way of custodial interrogation, they can find out the nature of offence and the extent of the offence.
5.Considering the rival submissions made, this Court verified whether this petitioner has collected the amount with an intention to do business and in case, if this petitioner could not execute the work effectively either due to Covid-19 or for any other reasons, whether he is inclined to return the money which he has received from the de facto complainant and others. The learned counsel for the petitioner sought for a short accommodation to get instructions from his client and to file a memo to that effect. Accordingly, the case was passed over and was taken up at the end of the list.
6.The learned counsel for the petitioner submits that, since the petitioner is now at Salem, he is filing a memo on behalf of the petitioner that this petitioner is inclined to return the money, after collecting the machineries provided by him for e-Tailoring purpose. The petitioner has also agreed for appointment of an Advocate Commissioner to monitor and to facilitate the same. The memo filed by the petitioner is recorded.
7.The petitioner, with an intent to provide some job opportunities, floated a business, namely, e-Tailoring. In the process of business, he has to provide equipments for tailoring and he was expected to provide job to those members. An agreement was also effected between the parties. Accordingly, some amounts have been deposited by the de facto complainant and others with the petitioner’s firm and in turn, the petitioner has also provided them with tailoring equipments/machineries for the purpose of tailoring. The grievance of the de facto complainant is that the petitioner has not provided any job opportunity as per the terms of the agreement. The petitioner defended the same that, in view of
Covid-19, they could not get any job work at present.
8.When this Court made an offer to settle the issue, the learned counsel for the petitioner, on getting instructions, has readily accepted for the same and also filed a memo to that effect. The memo is filed at present for the purpose of passing this order. However, the petitioner shall file a separate affidavit before this Court, accepting the terms and conditions of this order.
9.Considering the nature of the offence, the memo filed by the learned counsel for the petitioner, and the petitioner’s willingness to settle the issue, this Court passes the following order :
10.The petitioner is willing to return the money to those who have paid the amount for the Scheme e-tailoring. The de facto complainant and others, who paid money to the petitioner, shall return the machineries to the petitioner, if they incline to cancel the franchise agreement, and on receipt of the machineries, the petitioner shall return them the amounts deposited by them.
11.Mr.M.Elumalai, Advocate (MS No.22/1999), No.151, Thambu Chetty Street, Chennai – 600 001, who is having 22 years of experience and also former Additional Government Pleader, is appointed as Advocate Commissioner in this issue to monitor and facilitate the process of returning the amount by the petitioner to the de facto complainant and others. He is appointed as the Advocate Commissioner with the concurrence of the learned counsel for the petitioner.
12.The Advocate Commissioner shall appoint any person(s) of his choice for secretarial assistance.
13.A dedicated mobile number and an e-mail ID shall be opened exclusively by the Advocate Commissioner.
14.The remuneration for the Advocate Commissioner is fixed at Rs.1,00,000/- (Rupees One Lakh only) per month. The petitioner shall pay the said amount to the learned Advocate Commissioner on or before
5th of every month.
15.The incidental expenses, including boarding and lodging, if any, incurred by the learned Commissioner, has to be met out by the petitioner.
Petitioner :
16.The petitioner shall furnish the details about all the persons/subscribers/customers/depositors, etc., who have taken franchise from his concern, along with copy of the agreement to the learned Commissioner.
17.The petitioner is also directed to furnish the details of the properties, assets, bank balance, deposits, etc., standing in the name of the petitioner, his firm, and also in the name of his family members to the learned Commissioner.
18.The petitioner shall also effect paper publication in two leading daily newspapers, one in English and one in Tamil in a prominent manner about the appointment of the Advocate Commissioner. The paper publication has to be vetted by the learned Advocate Commissioner.
19.The petitioner is directed to appear before the learned Advocate
Commissioner once in a month, i.e., in the first week of every month.
Investigating Agency :
20.The investigating agency shall also furnish the number of complaints/depositors (so far identified and the ones who are yet to be identified) and their details, if any to the learned Commissioner. The learned Commissioner shall ascertain whether they are willing to continue with the Scheme or willing to cancel the franchise agreement.
21.The investigating agency is also directed to keep on updating the Advocate Commissioner about the investigation, periodically.
22.The Investigating Officer is expected to render his fullest co-operation to the learned Commissioner.

De facto complainant :
23.The de facto complainant is also at liberty to submit the details of the persons/customers/depositors as well as the properties of the bank balances of the petitioner, if known to him, to the learned Commissioner.
24.The de facto complainant and / or any other depositor(s), who are aggrieved over the petitioner with regard to the e-Tailoring business, are at liberty to approach the learned Commissioner, either in person or through the dedicated mobile number / e-mail ID created by the learned Commissioner in such regard.
General Directions :
25.The learned Commissioner, after collecting the particulars from all quarters, is to identify the persons/subscribers/customers/depositors and after due verification of their identification and genuineness of the documents, derive the amount deposited by them to the petitioner towards the business.
26.The learned Commissioner shall inform the concerned persons who have taken franchise from the petitioner’s firm, ascertain their willingness to cancel the franchise or to continue with the Scheme and shall ensure that the persons get back their money on returning the machineries, if they incline to cancel the franchise agreement.
27.The petitioner and the learned Commissioner shall ensure that all the persons, who have paid the amount and have any grievance, are returned with their money, on returning the machineries.
28.The learned Commissioner is permitted to identify the properties standing in the name of the petitioner/petitioner’s firm, his family members and staff, if any, through such modes as he deems fit.
29.The petitioner shall disburse the amounts, as arrived by the learned Commissioner, to the de facto complainant and other persons, who have taken franchise from the petitioner, on receipt of the machineries provided to them, through the TNPID Court, Coimbatore.
30.If the petitioner is unable to disburse the amount to the de facto complainant or other persons, the learned Commissioner is permitted to sell the properties standing in the name of the petitioner, their family members and staff, in the open market, either by private negotiation or public tender for more consideration, as he deems fit, which amount shall
be utilized to settle the de facto complainant and other
subscribers/customers/depositors. In such case, the jurisdictional District Revenue Officers and Superintendents of Police/Commissioners of Police concerned are directed to provide all necessary assistance to the learned Commissioner for visiting the properties of the petitioner in the course of their sale.
31.Since the District Revenue Officer is the competent authority and custodian of the properties attached as per the TNPID Act, the petitioner shall give authorisation to the jurisdictional District Revenue Officers to execute the sale of the properties on his behalf. The SubRegistrars concerned shall register the documents submitted by the
District Revenue Officers regarding the properties of the above Crime Number, without raising any query. The District Registrars are directed to issue necessary instructions in this regard to the Sub-Registrars concerned.
32.The petitioner and the learned Commissioner shall ensure that the entire process is completed within a period of three months from the date of receipt of a copy of this order.
33.For any clarification / modification of the aforesaid terms of reference, it is open to the parties concerned to approach this Court. It is made clear that, in the event of any non-compliance of the aforesaid terms on the part of the petitioner, the anticipatory bail granted would be cancelled and the learned Commissioner is at liberty to bring to the notice of this Court about any such non-compliance.
34.Subject to the aforesaid terms of reference, anticipatory bail is granted to the petitioner and he is ordered to be released on bail in the event of arrest or on his appearance, within a period of fifteen days from the date of receipt of a copy of this order, before the learned Judge, TNPID Court, Coimbatore, on condition that he shall execute a bond for a sum of Rs.25,000/- (Rupees Twenty five thousand only) each with two sureties each for a like sum to the satisfaction of the learned Judge, TNPID Court, Coimbatore. (The learned counsel for the petitioner mentioned before this Court that the jurisdictional Court is the TNPID
Court, Coimbatore.)
35.Apart from the above, the following conditions are also imposed :
[a]the petitioner and the sureties shall affix their photographs and left thumb impression in the surety bond and the learned Judge may obtain a copy of their Aadhaar card or Bank pass book to ensure their identity.
[b]the petitioner shall report before respondent police every Monday at 10.30 a.m. until further orders.
[c]the petitioner shall not tamper with the evidence or witness either during investigation or trial.
[d]the petitioner shall not abscond either during investigation or trial.
[e]On breach of any of the aforesaid conditions, the learned Judge/Trial Court is entitled to take appropriate action against the petitioner in accordance with law as if the conditions have been imposed and the petitioner is released on bail by the learned Judge/Trial Court himself as laid down by the Hon’ble Supreme Court in P.K.Shaji vs. State of Kerala [(2005)AIR SCW 5560].
[f]If the accused thereafter absconds, a fresh FIR can be registered under Section 229-A IPC.
36.In the result, this Criminal Original Petition is allowed in the above terms.
Post the matter in the second week of February, 2022.
29.12.2021
mkn
Internet : Yes
To
1.The Judge,
TNPID Court, Coimbatore.
2.The Inspector of Police, Economic Offences Wing, Salem District.
3.The Public Prosecutor, High Court, Madras.
B. PUGALENDHI, J.
mkn
4.Mr.M.Elumalai,
Advocate (MS No.22/1999), No.151, Thambu Chetty Street, Chennai – 600 001.
(Mobile No.9444062425)
Crl.O.P.No.25830 of 2021
29.12.2021