JUDGMENT 1. The present application is preferred under Section 439 of the Criminal Procedure Code, 1973 in connection with EOW Bhubaneswar P.S. Case No.17 of 2019 corresponding to C.T. Case No.8 of 2019, pending in the court of the learned Presiding Officer, Designated Court under the O.P.I.D. Act, Cuttack, for alleged offences under Sections 406, 420, 467, 468, 471, 120-B of the Indian Penal Code along with Sections 4, 5, and 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 read with Section 6 of the Odisha Protection of Interests of Depositors (in Financial Establishment) Act, 2011. 2. The succinct facts of the case are that Q Net Limited is a Company incorporated for more than 17 years in Hong Kong and it is operating in more than 150 countries. It deals in as many as 80 products, including education, holiday packages, personal care, nutrition, cosmetics, home care etc. It allegedly has six million customers worldwide and about 3 lakh members in India. It's Indian subsidiary is Vihaan Direct Selling India Pvt. Ltd. (hereinafter referred to as the 'Company'). The Products marketed by the Company are subjected to stringent quality checks and have 30 days' return policy. A customer willing to supplement his income has the option of enrolling as an 'independent representative'. Both the Petitioner herein and the informant were enrolled as such independent representatives. 3. The said Company has a Refund Policy which prescribes that if there is a customer/Independent Representative, that has purchased a product and if he/she is not satisfied with the product, he is free to return the product within 30 days from the date of purchase of the goods. In addition, each and every registered Independent Representative is free to opt out or cancel his registration within thirty days from registration, in case he feels that he is unable to commit his time towards the business. 4. The relationship between an Independent Representative and the Company is wholly governed by the registration form and declaration form signed by the Independent Representative and is binding on both the Company as well as the Independent Representative. The products were offered for sale by the Company through it's web portal www.qnetindia.in and payments are accepted only through electronic mode. On receipt of payment, the Company raises a purchase order to one Transview and procures the product from it. The products were offered for sale by the Company through it's web portal www.qnetindia.in and payments are accepted only through electronic mode. On receipt of payment, the Company raises a purchase order to one Transview and procures the product from it. On receipt of purchase order, the said Transview then supplies the products to the Company which in turn delivers to the customers at the delivery address provided by the customers at the time of purchase. On receipt of a product, if the customer is not satisfied with the product, then he is entitled to return the said product to the Company by raising a request for exchange within seven days from receipt of the product. The customer is also entitled to raise a request for refund of money within a period of thirty days from receipt of product. On the conclusion of a sale, the commission from the sale is credited to the account of the Independent Representative. The commission is arrived at through algorithmic calculations and paid out to the Independent Representative after TDS deductions. The compensation plan is part and parcel of the Policy and Procedure of the Company which is available on the website. 5. The independent representatives before their enrolment as independent representatives, are allegedly required to sign a declaration which provides for as follows: "I acknowledge that QNET's business is not a 'get-rich-quick scheme' and there is no guarantee or promise that an Independent Representative (including me) will make a certain level of income. Such things will differ to each individual since there is a strong connection to a person's personal efforts, diligence, dedication, motivation and personal skills. I have purchased a product/service of QNET for my personal usage and not for resale. Purchasing this product does not guarantee that I will earn any commission/ income. QNET pays commission based on my hard work performance and success in the marketing activities. Commissions are paid for selling products and not for recruiting people." 6. The informant desirous of being an Independent Representative voluntarily registered himself as an Independent Representative with the Company on 18.08.2018. On 19.08.2018, the informant purchased holiday packages from the Company for Rs.5,00,000.00. QNET pays commission based on my hard work performance and success in the marketing activities. Commissions are paid for selling products and not for recruiting people." 6. The informant desirous of being an Independent Representative voluntarily registered himself as an Independent Representative with the Company on 18.08.2018. On 19.08.2018, the informant purchased holiday packages from the Company for Rs.5,00,000.00. Over the course of next few months, informant marked and sold through his reference and earned a substantial commission to the tune of Rs.2,31,440.93 of which Rs.1,99,600.00 was transferred to his bank account on his request and balance was credited to his virtual account and continues to be there. However, later, the informant made a request for refund of the product price. The said request, being made beyond 30 days, which made the Company to refuse to such request as per its policy. The said informant had paid to the Company through the account of the petitioner. Records show that there is only one transaction in the petitioner's account. 7. Mr. Gautam Mukherji, learned Senior Advocate appearing for the Petitioner has submitted that the Company does not require any permission from the Reserve Bank of India and hence would not come within the meaning of 'Financial Establishment' under the OPID Act. Way back in 2017, the business model of the petitioner's Company was subjected to similar prosecution and the Karnataka High Court vide its judgment dated 15.02.2017 held that a Company is a multi-level direct marketing agency and consequently quashed the criminal cases. Certain independent representatives of Karnataka including the famous snooker player, Micheal Joseph Ferriera were arrested and the Hon'ble Apex Court by its order dated 27.03.2017 granted bail to the accused persons and stayed operations of all the FIRs therein. It is submitted that the direct selling business is governed by the Direct Selling Guidelines, 2016 dated 26.10.2016 issued by the Government of India as well as the Orissa Direct Selling Guidelines Order, 2017 dated 05.10.2017 notified by the State of Orissa. Thus, the Company's business is fully compliant of the Guidelines issued by the Central Government as well as those issued by the Respondent State. 8. Per Contra, Mr. Thus, the Company's business is fully compliant of the Guidelines issued by the Central Government as well as those issued by the Respondent State. 8. Per Contra, Mr. Bibekananda Bhuyan, learned counsel has appeared for the State vehemently objected the instant petition on the ground that the accused petitioner being an independent representative of the Company which had duped a multitude of gullible investors, it is a fit case for rejection of the bail. It has also been submitted that the Company was not registered as direct selling entity as per the direction in guidelines in force which provides safeguards to check against the cheating of gullible investors. It has been submitted that the investigation of the case had been kept open in terms of Section 173 (8) Cr.P.C. after submission of charge-sheet against Devabrat Harichandan, Sarat Kumar Parida, Chandan Kumar Mohallik and M/s Vihaan Direct Selling (India) Private Ltd. 9. It has been submitted by the learned Counsel for the Petitioner that no new materials has come to the fore between the date of the preliminary chargesheet and the petitioner's arrest. It has been submitted that between the date of arrest and the submission of final charge-sheet, the Petitioner was never taken on remand, nor was he interrogated. It has been submitted that the business model of the Company does not pay commission to independent representatives for inducting new independent representatives, instead pays commission only on products sold by referral mode and therefore does not fall under the Pyramid Scheme as prohibited by the Model Guidelines on Direct Selling. It is submitted that it is evident from the Company's policy that in the event a customer returns his product/service within the refund period, the amount is reversed to his account. The commission paid to the referred independent representative is also reversed to the Company. Thus, commission is entirely dependent on the conclusion of the sale and not on induction of independent representatives. It has been submitted that the Company's business model is plain sale of goods involving sale and purchase for consideration through the mode of e-commerce. There is no element of deposit. The money received by the Company is in the nature of consideration for purchase of product and therefore falls under the exceptions enumerated in Section 2(c) of the PCMCS Act. 10. There is no element of deposit. The money received by the Company is in the nature of consideration for purchase of product and therefore falls under the exceptions enumerated in Section 2(c) of the PCMCS Act. 10. The nature of transaction between the Company and the customer being that of sale and purchase of products and services, the same does not fall under the provisions of the PCMCS Act as it does not fall under the definition of circulation scheme or the deposit Act. 11. The instant petitioner had earlier moved this Court for anticipatory bail by way of ABLAPL No.14737 of 2019 which was rejected by order dated 20.01.2020 on the ground that the same might hinder the ongoing investigation which might necessitate the presence of the accused. However, records reveal that, in the meantime, the interrogation has been completed and charge-sheet has been submitted on 27.01.2020. The petitioner had also moved the Designated Court under the OPID Act on 10.09.2020 seeking bail which was rejected. 12. Learned counsel for the petitioner submits that the Hon'ble Supreme Court has already granted bail to two other accused persons who were similarly placed. He contended that the accused has not misappropriated any amount deposited by the informant nor had he given any false assurance to any person. He also submitted that except the informant no one else has complained against the accused petitioner and the amount of the informant deposited in the account of the accused was transferred immediately to the account of the Company on the following day and there was absolutely no possibility that an allegation for money circulation could be made out. Learned counsel for the petitioner vehemently argued that the nature of business of the accused Company is not that of a pyramid scheme rather is a simple direct selling business having multilevel marketing and thus the offences alleged in the instant case are not made out. 13. Heard the learned Counsel for the parties. It is seen that the Hon'ble Supreme Court in Special Leave Petition titled Sarat Kumar Parida v. State of Odisha[1] and Chandan Kumar Mahalik v. State of Odisha[2] vide order dated 17.8.2020 have been pleased to enlarge the accused therein on regular bail. 13. Heard the learned Counsel for the parties. It is seen that the Hon'ble Supreme Court in Special Leave Petition titled Sarat Kumar Parida v. State of Odisha[1] and Chandan Kumar Mahalik v. State of Odisha[2] vide order dated 17.8.2020 have been pleased to enlarge the accused therein on regular bail. Insofar as co-accused Devabrat Harichandan is concerned, it is also seen that this Court had rejected the bail application of the accused person which was challenged by preferring a Special Leave Petition before the Hon'ble Supreme Court. The Hon'ble Supreme Court vide order dated 12.10.2020[3] has set aside the order of this Court rejecting the bail of the accused person therein and has allowed the petition by enlarging the accused person on bail. [1] SLP (Crl) No. 3321 of 2020 [2] SLP (Crl) No. 3314 of 2020 [3]SLP (Crl.) No. 4286/2020 It is noted that there is yet another order passed by the Hon'ble Supreme Court preferred by the Company i.e. M/s. Vihaan Direct Selling (I) Pvt. Ltd. wherein by order dated 27.03.2017[4] the Hon'ble Supreme Court has directed that the further proceedings with respect to 20 FIRs in terms of the prayer in the petition be stayed and has further directed that the petitioners therein i.e. Michael Joseph Ferriera and Malckolm Nozer Desai be released on bail. The accused persons therein who were also named in the original FIR along with the petitioner herein have been enlarged on bail by the Apex Court. From the facts and records of the case, it unfolds that the accused persons who have been granted bail by the Hon'ble Supreme Court stand on a similar footing as the petitioner. There is no ground whatsoever to distinguish or differentiate between them insofar as the role of the accused persons as far as the prosecution version is concerned. 14. In the case of Vihaan Direct Selling (India) Pvt. Ltd v. Union of India[5] which has been tagged with Writ Petition (Crl) No.31 of 2017, it has been ordered that no coercive action shall be taken against the Petitioners therein like similar order protecting the petitioners in Writ Petition (Criminal) No.322 of 2019 dated 22.11.2019 (Venkata Krishnakanth Balmidi v. Union of India) by the Hon'ble Supreme Court. [4] Writ Petition (Crl) No.31 of 2017 [5] Writ Petition No.17 of 2019 dated 25.01.2019 15. [4] Writ Petition (Crl) No.31 of 2017 [5] Writ Petition No.17 of 2019 dated 25.01.2019 15. At this juncture, it is noted that one of the complainants has filed an objection in the present petition. In substance, the objection supports the prosecution's version and states additionally that it was this informant deposited a sum of Rs. 4,40,000/- directly into the bank account of the petitioner. Reliance has been placed on a number of judgments which deal with such economic offences and its destructive effects on the society at large to bring home the point that the present application should not be allowed and the prayer for bail should be rejected. It has also been stated that the bail applications of the three other accused persons were rejected by this Court earlier viz. in the case of Devabrata Harichandan v State[6], Chandan Kumar Mohallik v. State[7] and Sarat Kumar Parida v. State[8]. However, it seems that the informant/complainant who has filed the objection seems to be oblivious of the fact that in each of these aforesaid matters, the Hon'ble Supreme Court has already been pleased to enlarge the accused persons/petitioners therein on bail. [6] BLAPL No. 9320/2019 [7] BLAPL No. 9479/2019 [8] BLAPL No. 9480/2019 16. It has been submitted at the bar that the Ministry of Consumer Affairs, Food and Public Distribution Department of Consumer Affairs by its office memorandum on Direct Selling Guidelines, 2016 dated 26.10.2016 issued by the Government of India which has also been enforced by the State Government by introducing Direct Selling Guidelines Order, 2017 dated 05.10.2017. It is hoped that the same shall be vigorously enforced so that such type of incidents can be checked in future. 17. Lastly, it is noted that in the case of Naresh Balasubramaniam vs. State of Karnataka[9], the Hon'ble High Court of Karnataka while dealing with a similar issue has held that it seems to be a case of deficiency in service which could at best be labelled as a consumer dispute and no criminal case was made out in the facts and circumstances of the case. The same has been strenuously relied upon as it deals with the same Company dealing with the same scheme. The same has been strenuously relied upon as it deals with the same Company dealing with the same scheme. The finding given by the High Court is that a perusal of the FIR and charge-sheet revealed that the ingredient of the offences under Sections 417, 419 and 420 of the IPC are not made out. It was held that the allegations regarding the payment of certain monies (rather non-payment thereof) in anticipation of certain services and in the event of a deficiency of service, the appropriate course of action would be to initiate proceedings under the Consumer Protection Act, 1986 and not to initiate criminal prosecution under the provisions of the IPC. The advisory of the Central Government in terms of the Model Framework Guidelines on Direct Selling also recognizes this fact and specifies that the entire activity of direct sellers and direct selling entities should be guided by the provisions of Consumer Protection Act, 1986. The Hon'ble High Court has quashed the FIR as well as the charge-sheet with such an observation. Although the aforesaid view is not necessarily subscribed to but same has a bearing in so far as the fact that divergent view on this issue can be possible. [9] Criminal Petition No. 9308 of 2016 decided on 15.02.2017 18. In view of the aforesaid discussions, submissions made and taking into account a holistic view of the facts and circumstances of the case at hand, it is held that the present petitioner deserves to be enlarged on bail on the ground of parity. Hence, this Court hereby directs that the petitioner be released on bail in connection with EOW Bhubaneswar P.S. Case No.17 of 2019 corresponding to C.T. Case No.8 of 2019 by the learned Presiding Officer, Designated Court under the O.P.I.D. Act, Cuttack, on such terms and conditions as deemed just and proper. It is, however, clarified that the above observations are limited for the purposes of the present application only and the learned Trial Court shall proceed to arrive at its own decision in the trial, uninfluenced by the observations made hereinabove. The Bail Application is accordingly disposed of.