CHAPTER V

OFFENCES AND PENALTIES

27. Penalties

If a default is made--

(a)        in filing under section 23, the particulars of every transaction of any securitisation or asset reconstruction or security interest created by a securitisation company or reconstruction company or secured creditor; or

(b)        in sending under section 24, the particulars of the modification referred to in that section; or

(c)        in giving intimation under section 25,

every company and every officer of the company or the secured creditor and every officer of the secured creditor who is in default shall be punishable with fine which may extend to five thousand rupees for every day during which the default continues.

COMMENTS

Default in filing of transactions of securitisation, reconstruction and creation of security interest as required under s. 23 would attract punishment with fine extending to five thousand rupees for every day during which the default continues.

Every company and every officer of the company or the secured creditor or every officer of the secured creditor is punishable under s. 27 if the particulars of the modification of security interest registered under the Act are found to be not sent to the Central Registrar appointed under s. 21.

Sec. 25 requires securitisation company or reconstruction company or secured creditor to report satisfaction of the security interest, non-compliance whereof also would invite application of s. 27.

28. Penalties for non-compliance of direction of Reserve Bank

If any securitisation company or reconstruction company fails to comply with any direction issued by the Reserve Bank under section 12 or section 12A, such company and every officer of the company who is in default, shall be punishable with fine which may extend to five lakh rupees and in the case of a continuing offence, with an additional fine which may extend to ten thousand rupees for every day during which the default continues.

COMMENTS

Sec. 12 of the Act invests powers with the Reserve Bank to determine the policy and issue directions for the purposes mentioned therein.  Failure to comply with such policy determined or directions issued attracts penalty under s. 28.

29. Offences

If any person contravenes or attempts to contravene or abets the contravention of the provisions of this Act or of any rules made thereunder, he shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both.

COMMENTS

An "attempt" ordinarily means an intent combined with an act falling short of the thing intended.  It may be described as an endeavour to do an act, carried beyond mere preparation, but short of execution.

In criminal law, an intent to commit a crime coupled with an act taken toward committing the offence.  An effort or endeavour to accomplish a crime, amounting to more than mere preparation or planning for it, which, if not prevented, would have resulted in the full consummation of the act attempted, but which, in fact, does not bring to pass the party's ultimate design.  The requisite elements of an "attempt" to commit a crime are: (1) an intent to commit it, (2) an overt act toward its commission, (3) failure of consummation, and (4) the apparent possibility of commission.

Sec. 511 of the Indian Penal Code, providing for punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment says that whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment for any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.

Illustrations

(a) A makes an attempt to steal some jewels by breaking open a box and finds, after so opening the box, that there is no jewel in it.  He has done an act towards the commission of theft, and therefore is guilty under this section.

(b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z's pocket. A fails in the attempt in consequence of Z's having nothing in his pocket. A is guilty under this section.

Abetment

Abetment is an act of encouraging, inciting or aiding another.  One can incite by any means of language, direct or indirect, whether it takes the form of express solicitation or insinuation.

To `instigate' another person to commit a crime, to goad or urge forward or to provoke or encourage the doing of an act.  What acts would amount to instigation or incitement will depend upon the particular facts of each case--State of Bihar v. Ranen Nath Roy Chowdhary, AIR 1958 Pat. 259

Sec. 107 of the Indian Penal Code says that a person abets the doing of a thing, who--

First--Instigates any person to do that thing; or

Secondly--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly--Intentionally aids, by any act or illegal omission, the doing of the thing.

A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes of procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing Explanation 1

A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represent to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.

Whoever, whether prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and hereby facilitate the commission thereof, is said to aid the doing of that act Explanation 2.

30. Cognizance of offence

No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try an offence punishable under this Act.

COMMENTS

The offence can be tried in any Court not inferior to that of a Matropolitan Magistrate or Judicial Magistrate.