Calcutta High Court (Appellete Side)
Securities And Exchange Board Of India … vs M/S. Mps Greenery Developers Limited … on 26 June, 2025
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IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 3066 of 2023
Securities and Exchange Board of India (SEBI)
Vs.
M/s. MPS Greenery Developers Limited and Ors.
For the Petitioner : Mr. Sandipan Ganguly, Sr. Adv.
Mr. Karan Dudhewala,
Ms. Akansha Yadav.
For the Opposite Party : Mr. Pawan Kumar Gupta,
Nos. 1, 2, 4, & 10 to 13 Mr. Santanu Chatterjee,
Ms. Sofia Nesar,
Mr. Rajendra Kumar Nandi.
For the Opposite Party : Ms. Rajnandini Das.
No.5
Hearing concluded on : 12.06.2025
Judgment on : 26.06.2025
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Shampa Dutt (Paul), J.:
1. The revisional application has been preferred against an order dated
09.02.2023 and 30.06.2023 passed by the learned Judge, 5th Special
Court, Kolkata in Special Case No. SEBI/72 of 2017 under Sections
11(4)/11B/12 (1B) of the Securities and Exchange Board of India Act,
1992 and Regulation 5(1) read with Regulation 68(1)/68(2)/73/74 of
the SEBI (Collective Investment Schemes) Regulations, 1999 and for
offences punishable under sections 24(1)/27 of the Securities and
Exchange Board of India Act thereby allowing the petition under
Section 91 of the Code of Criminal Procedure preferred by the accused
persons and directing the petitioner to produce and handover
documents mentioned in the said petition to the accused persons.
2. Vide the order dated 09.02.2023, the Judge, 5th Special Court, Kolkata
allowed the application under Section 91 Cr.P.C. filed by the accused
persons.
3. The relevant part of the said order is reproduced here:-
―Order No. 57 dated 09.02.2023
……….Upon going through the list of documents are
mentioned in paragraph ‘3’ of the petitioner under
consideration I find that these documents are all supposed to
be in the custody of SEBI itself since it is their own documents.
There is no concrete explanation of SEBI as to why these
documents have not been handed over to the accused
petitioners.
It is the fact that the instant case has been filed by SEBI on
the basis of WTM Order and other documents. However the
petitioners have every right to demand the official documents of
SEBI to dispose of the discharge petition since such official
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documents are in the custody of SEBI and by refusing to hand
over the same to the petitioners, right of the petitioners to
perhaps succeed in the discharge petition cannot be taken
away.
On the last occasion SEBI has handed over some documents
to the petitioners. Upon going through those documents I
find that they are not the said documents which have
been categorically mentioned in the paragraph 3 of the
petition U/s.91 Cr.P.C. It is surprising as to why the
prosecution is not willing to hand over such documents to the
petitioners. The contention of the prosecution that they have
complied with the direction of the prosecution Sec.207 Cr.P.C.
cannot be sustained since the present petition under
consideration is U/s.91 Cr.P.C. and there is obviously a basis
difference between the two provisions of law.
In the light of above discussion I am of the view that the
petition U/s.91 Cr.P.C needs to be allowed. However since the
prosecution is already contesting the matter there is no question
of summoning them.
Hence
Ordered.
The petition U/s.91 Cr.P.C is allowed on contest.
Prosecution is hereby directed to produce and
handover all the documents mentioned categorically in
paragraph 3 of the petition U/s.91 Cr.P.C to the accused
petitioners by date fixed.
To l2.04.2023 for hearing of discharge petition U/s. 227
Cr.P.C. and producing and handing over of documents to the
accused petitioners in the mean time.
Sd/-
5th Spl. Court Kolkata‖
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4. The prosecution submitted that all documents relied upon by the
prosecution has been supplied to the petitioners/accused persons.
5. It appears that the documents as prayed for in paragraph 3 of the
application under Section 91 Cr.P.C. was directed to be handed over to
the accused/petitioners.
6. Para 3 of the application filed by the accused is as follows:-
“1. The instant application has been filed under Section 91
of Code of Criminal Procedure, inter-alia, praying for
issuing summons and/or directions upon the appropriate
authorities of SEBI situate, inter-alia, at Eastern Regional
office at L & T Chambers, 3 door, at 16, Camac Street,
Kolkata – 700 017 and also CBI at CGO Complex, Salt
Lake, Bidhannagar, Kolkata for production of documents
at the time of hearing of application for discharge of
accused nos. 1 to 4, 6, 7 and 10 to 13 in respect of
documents particularised hereunder for the ends of justice;
failing which the effective defence of the
accused/applicants abovenamed would be frustrated.
2. At all material times, the dispute between the parties
emanate from the interpretation and applicability of
provisions of SEBI Act, 1992 vide Section 32 read with
Section 30, and, inspite thereof SEBI insisting condition(d)
of Regulation 71(1) of SEBI (Collective Investment Scheme)
Regulation and 1999 with full knowledge of embargo in
Section 14Y of W.B Land Reform Act, 1955 and also the
interpretation of the documents exchanged and/or
transpired by and between the accused and/of MPS GDL
with the appropriate authorities of SEBI, being the
Manager, at Eastern Regional office at L & T Chambers,
3rd floor at 16, Camac Street, Kolkata and/or whole time
Member of Chairman at SEBI Bhawan, Bandra Kurla
Complex, Mumbai-400051 in connection therewith and
instituting diligently W.P. No. 27927(W) of 2012 (MPS GDL
– Vs SEBI & Ors.) challenging the refusal of SEBI to grant
final registration under SEBI (CIS) Regulation, 1999 to
protect the land”, acquired and improved upon, from the
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fund raised from bond holders. In this connection, copy of
W.P. No. 27927(W) of 2012 (MPS GDL -Vs- SEBI & Ors.) are
annexed hereto as part hereof and marked “J” and filed
separately as the same in voluminous.
3. Full particulars of the writ petitions including WP
No. 27927(W) of 2012 instituted by MPS GDL through
its Directors, inter-alia, being the accused herein and
the aforesaid letters with their respective reference nos,
and date before the said complaint dated November 23,
2013, and also the orders and letters subsequent to the
said complaint dated November 23, 2013, are stated
hereunder.
(1) Letter dated 08.10.2010 by MPS to SEBI regarding
payment of sum of Rs. 2.48 crores and Rs. 175 stores
to IL & FS towards their trusteeship L & FS 1 services
(as sought for by IL & FS vide their letter dated
18/1/2010 for tristceship Acceptance Fee of Rs. 1.5
crore, one time documentation fee and Rs. 73 lacs &
Annual Fee of Rs. 1.75 crores) [copy whereof is
annexed and marked “A” hereto as part hereof];
(2) Letter dated 24/03/2010 by MPS to SEBI –
submitting consent letter of the trustees, IL & FS Co.
Ltd., and Form “C”, as per Regin. 18(2) of SEBI (CIS)
Regla, 1999 [copy whereof is annexed and is
marked annexure II of annexure “P-43”, pg 524 of
WP. No. 27927(W) of 2012];
(3) Letter dated 10/05/2010 by MPS to SEBI intimating
that the land, held beyond celling limit, relating to
existing exemption u/s 14Y WBLR Act, 1955, was not
transferable. To solve the deadlock, necessary
permission be accorded, and the land be
acquired/purchased in the name of MPS Co. and the
CO, in tum, will create a charge in favour of the Trust
Company as an equitable mortgage and get the
charge reed, with ROC. The Trustees will then hold
the original documents i.e, title-deeds of the scheme
properties at custodian, as per Trust Deed [copy
whereof is annexed and marked “P-47″at [age 597
of WP No. 27927(W) of 2012];
(4) Letter dated 09/07/2010 by MPS to SEBI furnishing
further documents in support of its prayers for grant
of final Regn, enclosed therewith, also furnished
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photo copy of Trust Deed dt. 16/06/10 created in
favour of MPS GDL CIS Trust and appointment of IL &
FS Trust Co. Ltd. As Trustee executed and duly read
on 16/06/2010 [copy whereof is annexed and
marked “P-49” page 601 of WP No. 27027(W) of
2012];
(5) Letter dated 08.09.2010 by SEBI to MPS intimating
that the issues raised by MPS in their letter dated
10.07.2010 and 10.05.2010 respectively, inter alia
regarding transfer of land in the name of
trust/trustees and segregation of CIS related
activities from other business is under legal
examination & SEBI shall revert back in due course
(copy whereof is annexed and marked P-50 page
603 of W.P. No. 27927 (W) of 2012);
(6) Letter dated 08.11.2010 by SEBI to MPS referring to
letters dt 10.05.2010, 09/07/10 & 8/9/10,
respectively for grant of final regn. Under SEBI (CLS)
Regin. 1999 and referring to Sec. 16(2) of SEBI (CIS)
Regn. 1999 and which states that CIMC (Collective
Investment Management Company) shall appoint a
Trustee who shall held the assets of the scheme for
benefit of the unit holders” MPS thereby, are required
to transfer all the assets properties of the Co. in the
name of the Trustee who will held the properties in
trust for benefit of the unit holders. The Deed of
Conveyance would be required to be executed in
favour of the Trustee (copy whereof annexed and
marked P-53 at page 615 of W.P. No. 27927(W) at
2012);
(7) Letter dated 24.11.2010 by MPS to L.R. Department
of W.B. (14Y) referring to the exemption u/s 14Ydt.
05/05/2005 for 421 acres of land out of the project of
1200 acres at West Midnapore and also referring to
the guideline SEBI(CIS) Regn. 1999 and exemption
needs to be transferred in the name of Trustee as
transfer is possible as per law when kindly grant the
same. [copy whereof is annexed and marked “B‟‟
hereto as part hereof];
(8) Letter dated 24.11.2010 by MPS to L.R. Department
of W.B. (14Y) referring to the exemption u/s 14Y dt.
05/05/05 for 421 acres of land out of the project of
1200 acres at West Midnapore and also referring to
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the guideline SEBI (CIS) Regn. 1999 and exemption
needs to be transferred in the name of Trustee as
transfer is possible as per law when kindly grant the
same. [copy whereof is annexed and marked “C”
hereto as part hereof];
(9) Letter dated 09/02/2011 by SEBI to MPS reiterated
to transfer all assets and properties of the Co. in the
name of Trustees who shall hold the same in Trust for
the benefit of unit holders, and Deed of Conveyance
would be required to be executed in favour of Trustee.
Also reiterated that it is MPS‟s responsibility for (1)
grant of land ceiling exemption in favour of Trustee.
[copy whereof is annexed and marked “P-56” at
page 626 of W.P. No. 27927(W) of 2012);
(10) “Information slip” in Title Suit No. 618 of 2012 at
Nadia filed by Biswajit Mukherjee against MPS GDL
& Ors., inter-alia, showing injunction continues till the
year 2015. [copy whereof is annexed and marked
“D” hereto as part hereof);
(11) Letter of SEBI dated June 2, 2000 seeking
amendment of and/or insertion to the main objects of
the Company‟s Memorandum of Association for
raising funds and/or SEBI (Collective Investment
Scheme) Regulations, 1999. [copy whereof is
annexed and marked “E” hereto as part hereof];
(12) The reverse side of the Bonds, containing printed
terms and conditions of the Bonds concealed/ignored
by SEBI and also by CBI/Police, though, Clause 6 of
the “Agro” and /or „Orchard‟ Bonds specifically
stipulated-Through the Company has taken adequate
precautions to protect the plantation and sustain the
growth and yield, it shall bit be responsible for any
damage or depreciation caused by natural disaster,
God‟s act, governmental policies and such other
matters beyond the control of the Company”.
Therefore, impossibility of performance u/s 55 and 56
of the Indian Contract Act, 1872 applies in full force
and presence of the element of alleged „criminality‟
and/or „mens rea‟ is fully absent by any stretch of
imagination. [copy whereof is annexed and marked
“F” hereto us part hereof];
(13) Letter dated 19/05/14 by MPS Greenery Developers
Ltd. through accused no.1 to SEBI agreeing to the
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impounding by the authorities in compelling
circumstances stated therein. [copy whereof is
annexed and marked “G” hereto];
(14) W.P. No. 27921(W) of 2012, challenging the Order of
SEBI, inter alia, REFUSING FINAL REGISTRATION,
PENDING in Hon‟ble High Court [Copy where of is
annexed and marked “J” hereto as part hereof];
(15) Settlement vide Order dated 23rd December, 2015
passed by Hon‟ble Division Bench presided by the
then Hon‟ble Chief Justice Manjula Chellur in Class
Action/PIL upon suggestions of the parties where
SEBI as also CBI were parties respondents
respectively [copy whereof is annexed and marked
“H” hereto as part hereof];
(16) Notice by around or over 25% of the Bond-holders of
MPS GDL under Regulation 73(7) of SEBI (CIS)
Regulations, 1999 giving positive consent under
Regulation 73(6) for continuation with CIS of the
Company at their risk and responsibility and thereby
CIS of the Company need not be wound up as
directed by SEBI. [copy whereof is annexed and
marked “I” hereto as part hereof]……….”
7. There are in all 16 documents.
8. Copies of the documents from no. 1 to no. 16 have been annexed by
the accuseds to the writ application (W.P. No. 27927(W) of 2012) filed
by them and also under Section 91 Cr. P. C. and as such the said
documents called for are already in their possession.
9. Document at number 10 & 11 are also available in the public domain.
10. Both parties have relied upon the judgment of the Supreme Court in
Sarla Gupta & Anr. -vs- Directorate of Enforcement, (2025 SCC
OnLine SC 1063).
11. The petitioner/complainant has relied upon Para 31 and 32 of the
judgment:-
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―31. Now, we come to the decision of this Court in the
case of Criminal Trials Guidelines Regarding
Inadequacies and Deficiencies, In Re . This Court, in
1paragraph 11 of the said decision, held thus:
―11. The Amici Curiae pointed out that at the
commencement of trial, accused are only furnished with
list of documents and statements which the prosecution
relies on and are kept in the dark about other material,
which the police or the prosecution may have in their
possession, which may be exculpatory in nature, or
absolve or help the accused. This Court is of the
opinion that while furnishing the list of
statements, documents and material objects under
Sections 207/208 CrPC, the Magistrate should also
ensure that a list of other materials, (such as
statements, or objects/documents seized, but not
relied on) should be furnished to the accused. This
is to ensure that in case the accused is of the view
that such materials are necessary to be produced
for a proper and just trial, she or he may seek
appropriate orders, under CrPC for their
production during the trial, in the interests of
justice. It is directed accordingly; the Draft Rules
have been accordingly modified. [Rule 4(i)]‖
(emphasis added)
Accordingly, Rule 4(i) of the Draft Criminal Rules of
Practice, 2021 was formulated, which reads thus:
―4. Supply of documents under
Sections 173, 207 and 208 CrPC.–
(i) Every accused shall be supplied with statements of
witness recorded under Sections 161 and 164 CrPC and
a list of documents, material objects and exhibits seized
during investigation and relied upon by the investigating
officer (IO) in accordance with
Sections 207 and 208 CrPC.”
Explanation : The list of statements, documents,
material objects and exhibits shall specify
statements, documents, material objects and
exhibits that are not relied upon by the
investigating officer”
(emphasis added)
Therefore, it is held that a copy of the list of statements,
documents, material objects and exhibits that are not
relied upon by the investigating officer must also be
furnished to the accused. As held by this Court, the
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object is to ensure that the accused has knowledge of
the documents, objects, etc. in the custody of the
investigating officer which are not relied upon so that at
the appropriate stage, the accused can apply by
invoking the provisions of Section 91 of
the CrPC (Section 94 of the BNSS) for providing copies of
the documents which are not relied upon by the
prosecution. This decision upholds the right of the
accused to apply for the supply of copies of the
documents which are not relied upon by the prosecution
at an appropriate stage by making an application to the
Court.
32. This requirement was again quoted with approval in
a decision of the Coordinate Bench of this court in the
case of Manoj v. State of Madhya Pradesh5. Paragraphs
208 and 209 of the said decision read thus:
“208. This view was endorsed in a recent three-Judge
Bench decision of this Court in Criminal Trials
Guidelines Regarding Inadequacies & Deficiencies, In
re v. State of A.P. [Criminal Trials Guidelines Regarding
Inadequacies & Deficiencies, In re v. State of
A.P., (2021) 10 SCC 598 : (2022) 1 SCC (Cri) 100] This
Court has highlighted the inadequacy mentioned above,
which would impede a fair trial, and inter alia, required
the framing of rules by all States and High Courts, in
this regard, compelling disclosure of a list containing
mention of all materials seized and taken in, during
investigation–to the accused. The relevant draft
guideline, approved by this Court, for adoption by all
States is as follows : (SCC p. 608, para 21)
“21. … „… 4. Supply of documents under Sections 173,
207 and 208CrPC.–(1) Every accused shall be supplied
with statements of witness recorded under Sections 161
and 164CrPC and a list of documents, material objects
and exhibits seized during investigation and relied upon
by the investigating officer (IO) in accordance with
Sections 207 and 208CrPC.
Explanation : The list of statements, documents,
material objects and exhibits shall specify statements,
documents, material objects and exhibits that are not
relied upon by the investigating officer.” This extract is
taken from Manoj v. State of M.P., (2023) 2 SCC 353 at
page 452
209. In view of the above discussion, this Court
holds that the prosecution, in the interests of
fairness, should as a matter of rule, in all
112025:CHC-AS:1138
criminal trials, comply with the above rule, and
furnish the list of statements, documents,
material objects and exhibits which are not relied
upon by the investigating officer. The presiding
officers of courts in criminal trials shall ensure
compliance with such rules.”
(emphasis applied)
Therefore, what can be deduced from the above
decisions is that the accused has the right to ask for the
supply of documents not relied upon by the prosecution
by making an application to the Court. The question is at
what stage the accused can demand copies of the
documents.”
12. The opposite party/accused relies upon Para 45 and 54:-
―45. Therefore, at the stage of entering upon defence,
an accused can apply for the issue of process for the
production of any document or thing. At this stage, he
can also apply for the production of a document or a
thing that is in the custody of the prosecution but has
not been produced. A fair trial is a part of the right
guaranteed to an accused under Article 21 of
the Constitution. The right to a fair trial of the accused
includes the right to defend. The right to defend consists
of the right to lead the defence evidence by examining
the witnesses and producing the documents. Therefore,
the accused is entitled to exercise his right at the stage
of entering upon defence by compelling the prosecution
or a third party to produce a document or a thing in their
possession or custody. The Court can decline the
request of the accused for issuing process for the
production of documents only on the limited grounds set
out in sub-section (3) of section 233 of the CrPC.
54. We have seen a major shift in the interpretation of
rights conferred by Article 21 of
the Constitution after A.K. Gopalan’s case. When the
Legislature has felt a need to bring out a legislation like
the PMLA, it is the duty of the Court to interpret Article
21 in such a way that the right of a fair trial available to
the accused is not affected. The object of the provisions
of Section 24 or 45(1)(ii) is not to take away the
fundamental right of fair trial conferred on the accused.
These provisions are different in the sense that they put
a burden on the accused. When such a burden is put on
the accused, it is all the more necessary that the right of
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fair trial guaranteed under Article 21 to the accused is
protected by permitting the accused to lead defence
evidence by seeking the production of witnesses and
documents not relied upon by the prosecution. Similarly,
for discharging the burden under Section 45(1)(ii), the
accused has the right to invoke
Section 91 of CrPC (Section 94 of the BNSS) for seeking
production of documents at the stage of hearing of bail
application.”
13. In the present case, it is clearly seen that the copies of documents
prayed for by the accuseds/opposite parties herein have been
annexed to the writ application and under Section 91 Cr. P.C. by the
accuseds/ opposite parties themselves. Two of the documents at
number 10 and 11 are also available in the public domain.
14. As such the direction passed by the Court dated 09.02.2023 was
not necessary.
15. Order dated 30.06.2023 was passed rejecting the petitioners/
complainants prayer for recall of order dated 09.02.2023 allowing the
application under Section 91 Cr.P.C. filed by the accuseds/opposite
parties herein.
16. CRR 3066 of 2023 is allowed.
17. The Orders dated 09.02.2023 and 30.06.2023 are set aside and
quashed.
18. The application under Section 91 Cr.P.C. stands rejected as the same
is not necessary at this stage as discussed and is thus not
maintainable.
19. Trial Court to first consider and dispose of the application filed by the
accuseds/opposite parties under Section 277 Cr.P.C. expeditiously.
20. All connected application, if any, stands disposed of.
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21. Interim order, if any, stands vacated.
22. Urgent Photostat certified copy of this judgment, if applied for, be
supplied to the parties, expeditiously after complying with all
necessary legal formalities.
(Shampa Dutt (Paul), J.)
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