IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT: HYDERABAD
CORAM:
* THE HON'BLE SRI JUSTICE K. LAKSHMAN
+ CRIMINAL PETITION No.3598 OF 2021
% Delivered on: 11-08-2021
Between:
# Mr. Syed Taruj Ahmed .. Petitioner
Vs.
$ The State of Telangana, rep.by Public Prosecutor
High Court of Telangana, Hyderabad & another .. Respondents
! For Petitioner : Mr. Mahesh Raje
^ For Respondent No.1 : Learned Public Prosecutor
For Respondent No.2 : ---
< Gist :
> Head Note :
? Cases Referred :
1. Crl.Appeal No.1576 of 2005 & batch, decided on 01.04.2015
2. (2005) 12 SCC 628
3. (2017) 16 SCC 126
4. (1992) Supp. 1 SCC 335
5. Crl.M.C. Nos.3844/2015 & Crl.M.A. Nos.13675-13676/2015,
decided on 28.09.2015
6. Crl. M.C. No.1656/2011, decided on 24.08.2011
7. 1990 Crl.L.J. 1110
8. 1979 Crl.L.J. 446
9. 2015 SCC OnLine Cal..3372
10. AIR 2012 SC 364
11. 1986 C Cr. L.R. (Cal) 269
12. (2013) 10 SCC 627
13. (2012) 8 SCC 524
14. (2011) 3 SCC 436
15. (1986) 4 SCC 531
KL,J
2 Crl.P. No.3598 of 2021
HON'BLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.3598 OF 2021
ORDER:
This Criminal Petition is filed under Section - 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') to quash the proceedings in C.C. No.6 of 2004 on the file of Metropolitan Sessions Judge, Nampally, Hyderabad.
2. The petitioner herein is accused in C.C. No.6 of 2004. The offences alleged against him are under Sections - 409 and 420 of IPC and Section - 5 of the Telangana Protection of Depositors of Financial Establishments Act, 1999 (Act, 1999') and Section - 45S read with 58B (5) (a) of the Reserve Bank of India Act, 1934 (for short 'Act, 1934').
3. Heard Mr. Mahesh Raje, learned counsel for the petitioner and learned Public Prosecutor appearing on behalf of respondent No.1
- State. Despite sending the notice to respondent No.2, it was returned undelivered.
4. As per charge sheet, the allegations against the petitioner herein are as follows:
i) The petitioner herein started a Magazine in the year 1991 under the name and style 'city Real Estate Bulletin' at Hyderabad.
ii) After inception of the said magazine, the petitioner came in contact with several persons doing in real-estate business in KL,J 3 Crl.P. No.3598 of 2021 Hyderabad City, and used to settle real-estate disputes and started amassing wealth.
iii) With the said background of his business, the petitioner in persecution of his object, conceived the idea of floating registered companies. Accordingly, he floated two registered companies viz., 1) Tanuraj Iron & Steel Private Limited on 20.02.1995, which was intended to manufacture of steel; and 2) Tanuraj Publishers Private Limited on 16.05.1995, which deals with real-estate business. Both the said companies have registered with the Registrar of Companies, Hyderabad, vide registration Nos.01-23274 and 01-20342 respectively.
iv) During the month of November, 1995, the petitioner started another unregistered company under the name and style 'Franzaan & Co.' (a Unit of Asanzubi Group of Industries) and gave advertisements in leading Urdu Daily Newspapers of Hyderabad City, named 'The Munsif' and 'Siasat' and requested the public to invest money in the said company for good returns. The response from the public was not according to the expectation of the petitioner, that is to say, nobody came forward to invest even a single paise in the said company.
v) The petitioner herein having miserably failed to attract money from the public touched the religious feelings of Muslim Community and started giving wide publicity in the leading daily KL,J 4 Crl.P. No.3598 of 2021 Urdu Newspapers, like 'The Munsif' and 'Siasat' by advertising as 'Halal Munafa' (profit from investment) and the profits would be distributed to the subscribers every month. With the said advertisement touching the religious feelings of Muslim Community, the gullible public of Muslim Community came forward in multitude and started investing their hard earned money in Franzaan & Co.
vi) On account of touching the religious feelings of Muslim Community, the petitioner received money from the innocent public to a tune of Crores and thereafter started another 10 Companies which were registered with the Registrar of Companies, Hyderabad by inducting the members other than his family members and received money from the public and kept them in Franzaan & Co. only while the other said companies are only for the namesake to cheat the public.
vii) The petitioner with an intention to grab more money from the gullible public floated different schemes carrying different rates of interest in the name of 'Halal Munafa (As per Holly Quaran giving money for interest is a sin, but taking money as profit out of the money invested is not a sin). The schemes opened by the petitioner are; 1). A1 Rahat-II, 2). A1 Rahat-III, 3). Lakhpathi, 4). Lakhpati-II,
5). Lakhpati-IIB, 6). Amanat-I, 7). Amanat-II, 8). Amanat-III, 9). Hayat, 10). A-2, 11). A-3 (Sl.Nos.1 to 11 schemes covered Franzaan Finco), 12). Lakhpati-III (this scheme is covered by Franzaan Fincap),
13). Redemption Note (this scheme was covered by Franzaan KL,J 5 Crl.P. No.3598 of 2021 Enterprises), 14). P-4, 15). 121 days, 16). Barkarar, 17). Promissory Note (Sl. Nos.14 to 17 Schemes covered by Franzaan & Co.), 18). A1 Aman, 19). F.I.H., 20). A1 Rahat Commercials and 21). A1 Commercials.
viii) The petitioner collected deposits from the public under the above schemes, issued investment certificates with his signature in the name of financial establishments 1). Franzaan & Co., 2). Franzaan Finco, 3). Franzaan Fincap and 4). Franzaan Enterprises pertaining to the years 1996 to April, 1999.
ix) The petitioner failed to get the above said financial establishments registered either with the Registrar of Companies or Reserve Bank of India. Thus, the petitioner without registering the financial institutions with the appropriate authority and without getting permission from the RBI to do the business as NBFC made the gullible public, particularly the Muslim Community and others in general to believe that the financial companies are registered with the appropriate authority and also obtained permission from the RBI to do business as NBFC and also made the Muslim Community depositors that the amount distributed to them is Halal Munafa, but not interest, secured deposits to a tune of Rs.8,60,05,576/- from 1619 investors, purchased properties in his name and in the names of his family members to a tune of Rs.2,86,16,239/- and lead a luxurious life with his family members at the detriment of public money and, thereby he has committed the aforesaid offences.
KL,J 6 Crl.P. No.3598 of 2021
5. SUBMISSIONS ON BEHALF OF PETITIONER:
i) Mr. Mahesh Raje, learned counsel for the petitioner, referring to Rule - 5 (2) of the Telangana Protection of Depositors of Financial Establishment Rules, 1999 (for short 'Rules, 1999'), which was brought in vide G.O.Ms.No.347, Home (General-B), dated 29.10.1999, would submit that it envisages where the Competent Authority is satisfied or has reason to believe that a Financial Establishment has committed a default punishable under Section - 5 of the Act, the Competent Authority shall be competent to launch prosecution before the Special Court against the financial Establishment and any person responsible for the management of the affairs of the Financial Establishment including the promoter, manager or member of the Financial Establishment for levy of penalty under Section - 5 of the Act.
ii) He has also referred to Section - 4 of the Act, 1999, which deals with 'competent authority'. Placing reliance on G.O.Ms.No.193, Home (General-B), dated 23.08.2001, learned counsel would submit that the Government has issued the said G.O. in exercise of the powers conferred under Sub-Section - (1) of Section - 4 of the Act, 1999 (Act No.17 of 1999) appointing the Additional Director General of Police, CID, or Inspector General of Police, CID, as the case may be, also as Competent Authority to exercise control over the properties attached by the Government under Section - 3 and such other powers and discharge such other functions as may be KL,J 7 Crl.P. No.3598 of 2021 prescribed under Sub-Section (2) of Section - 4 of the Act, 1999 in the entire jurisdiction of the State insofar as the cases being investigated by CID or concerned.
iii) Referring to the said G.Os. and the principle laid down by a learned Judge in Yousuf Bin Awad Yousuf v. The State of Andhra Pradesh through the Inspector of Police, WCO Team III CCS, Hyderabad1, learned counsel for the petitioner would submit that the Inspector of Police, EOW, CID, Hyderabad is not having power to investigate and lay charge sheet under the provisions of Act, 1999. According to him, the said judgment was delivered on 01.04.2015 and the same was confirmed by the Hon'ble Supreme Court in SLP (Crl.) No.002982 - 002995 of 2017 vide order 24.03.2017.
iv) Referring to Circular Memorandum No.2564/C14/CID/ 92, dated 08.09.1992 issued by the Director General of Police, CID, Railways, R&T, Hyderabad, learned counsel would submit that according to the said Circular, no Court shall take cognizance of any offence punishable under the Act, 1934 except upon a complaint in writing made by an Officer of the Bank generally or specially authorized in writing in this behalf by the State Government and the Government vide G.O.Ms.No.39, Fin.&Plg.(PLG.IF-I) Department, dated 02.07.1986, has authorized all Inspectors to make a complaint. All the Government of AP Officers should ensure that the provisions 1 . Crl.Appeal No.1576 of 2005 & batch, decided on 01.04.2015 KL,J 8 Crl.P. No.3598 of 2021 contained under Sections - 45 and 58B of the Act, 1934 are strictly complied with.
v) Referring to the above Circular, G.Os., and principle laid down in the above decisions, learned counsel for the petitioner would submit that the contents of the charge sheet lacks the ingredients of offences alleged against the petitioner and, therefore, he sought to quash the proceedings in C.C. No.6 of 2004.
6. SUBMISSIONS ON BEHALF OF PROSECTUION:
i) On the other hand, learned Public Prosecutor, referring to the principle laid down by the Apex Court in State of M.P. v. Ramesh C. Sharma2 and R.A.H. Siguran v. Shankare Gowda3, would submit that just because investigation was not done by a Competent Authority, trial will not vitiate. He would further submit that there is abnormal delay in filing the present petition under Section - 482 of Cr.P.C. The proceedings in C.C. No.6 of 2004 are at judgment stage. There are several triable issues. All the allegations raised herein can be raised before the trial Court in C.C. No.6 of 2004.
ii) With the aforesaid submissions, learned Public Prosecutor sought to dismiss the present criminal petition.
7. FINDING OF THE COURT:
i) A perusal of the record would reveal that the Inspector of Police, EOW, CID, Hyderabad, filed charge sheet in C.C. No.6 of 2 . (2005) 12 SCC 628 3 . (2017) 16 SCC 126 KL,J 9 Crl.P. No.3598 of 2021 2004 on 21.12.2004. The petitioner herein has received copy of the charge sheet and all other relevant documents on 18.05.2004. The petitioner herein has filed the present petition under Section - 482 of Cr.P.C. only on 22.04.2021. Thus, there is a delay of about 17 years in filing the present petition by the petitioner herein.
ii) In the entire grounds of present petition, there is no explanation, much less plausible explanation by the petitioner for the said abnormal delay in filing the present petition under Section - 482 of Cr.P.C.
iii) Learned counsel for the petitioner placed heavy reliance on the judgment in Yousuf Bin Awad Yousuf1 and would submit that the present case is squarely covered by the said judgment as the same was confirmed by the Apex Court also on 24.03.2017. In view of the said submission, it is relevant to note that the Calendar Cases in the judgment in Yousuf Bin Awad Yousuf1 were of 2003 and 2004 years respectively. The accused therein were faced trial and got convicted for the offence under Section - 5 of the Act, 1999. They have preferred the appeals in the year 2005, and the same were allowed vide common judgment dated 01.04.2015. Whereas, in the case on hand, the proceedings are at judgment stage. The C.C. is of the year 2004. Even the petitioner herein has filed the present petition six (06) years after the judgment in Yousuf Bin Awad Yousuf1. The trial Court has posted the C.C. No.6 of 2004 for judgment. The petitioner herein having faced the entire trial and when the matter is posted for KL,J 10 Crl.P. No.3598 of 2021 judgment, has chosen to file the present petition after lapse of seventeen years. Thus, there is an inordinate and abnormal delay in filing the present petition under Section - 482 of Cr.P.C. which was not explained by the petitioner.
iv) It is relevant to note that the inherent powers of this Court under Section - 482 of Cr.P.C. are meant to prevent the abuse of process of law and to meet ends of justice. The principle was also laid down by the Apex Court in State of Haryana v. Bhajan Lal4.
v) It is relevant to note that the Delhi High Court in Neerja Bhargava v. State of NCT, Delhi5, considering the said aspect of delay in filing the application under Section - 482 of Cr.P.C., held that after a long delay and laches, Section - 482 of Cr.P.C. need not to be exercised to curb the delay caused on the part of the petitioner in not challenging the law by invoking the express provisions of Cr.P.C. In the said case, there was delay of 19 years in filing a petition under Section - 482 of Cr.P.C. Therefore, the Delhi High Court held that the petitioner therein is not entitled to have any relief under Section - 482 of Cr.P.C. More the reason, inherent powers of the High Court are meant to prevent the abuse of process of law and to meet the ends of justice, which is available to an aggrieved person to avoid unnecessary delay and to put an end to the proceedings and in the present case it is otherwise. With the said findings, the Delhi High Court dismissed the 4 . (1992) Supp. 1 SCC 335 5 . Crl.M.C. Nos.3844/2015 & Crl.M.A. Nos.13675-13676/2015, decided on 28.09.2015 KL,J 11 Crl.P. No.3598 of 2021 application filed under Section - 482 of Cr.P.C. Challenging the same, the State approached the Hon'ble Supreme Court vide S.L.P. (Crl.) Nos.2982 - 2995 of 2017, and the Apex Court dismissed the same vide order dated 24.03.2017.
vi) In Rajesh Chetwal v. State6, the Delhi High Court dealing with a petition under Section - 482 of Cr.P.C. challenging an order which is revisional to circumvent the delay in filing the said revision, referring to various judgments, held that Section - 482 of Cr.P.C., starts with a non-obstante Clause and that being unfettered by any provision of law contained in Cr.P.C., the High Court is conferred with the powers to pass orders to prevent the abuse of process of law or to secure the ends of justice. There is also no dispute about the fact that no period of limitation has been prescribed by the Limitation Act within which a petition under Section - 482 of Cr.P.C. ought to be filed. But the contention which the learned counsel for the petitioner has failed to address convincingly is that the principle of laches or inordinate delay is not applicable to a petition under Section
- 482 of Cr.P.C. Therefore, the Delhi High Court by disagreeing with the contention of learned counsel for the petitioner therein that the principle of laches or inordinate delay is not applicable to the provisions of Section 482 of Cr.P.C., discussed the petition filed by the petitioner therein on the ground of delay. The Delhi High Court had also referred to the principle laid down by it in Bata @ 6 . Crl. M.C. No.1656/2011, decided on 24.08.2011 KL,J 12 Crl.P. No.3598 of 2021 Batakrushna Behera v. Anama Behera7, wherein the Orissa High Court observed that "though for filing an application under Section - 482 of Cr.P.C., there is no limitation, the application should be filed within a reasonable time, so that the progress of the case is not disturbed at a belated stage. A revision petition challenging an order can be filed within 90 days from the date of the order similarly a period of 90 days which is at par with a revision petition should be treated as reasonable time for filing an application under Section - 482 of Cr.P.C., and if it is filed beyond the period of 90 days the applicant would have to explain the cause of the delay."
a) The Delhi High Court has also referred to the decision in Gopal Chauhan v. Smt. Satya8 rendered by the Himachal Pradesh High Court to the effect that a petition under Section - 482 of Cr.P.C. and Article - 227 of the Constitution of India filed after expiry of 3 years from the date of summoning ought not to be entertained when the case is fixed for the stage of evidence and that too, when the petitioner has approached the Revisionist Court.
b) Thus, although the question of inordinate delay and laches has not been dealt with in many cases but the fact remains that a party who invokes the jurisdiction of the High Court for the purpose of quashing of FIR and the consequent proceedings by embarking on to show that the ingredients of Section - 409 or 420 of IPC are not made 7 . 1990 Crl.L.J. 1110 8 . 1979 Crl.L.J. 446 KL,J 13 Crl.P. No.3598 of 2021 out, is not only required to meet the test of expeditious dispatch of approaching to the Court but he should also be able to show that the facts are so glaring that it calls for interference of the High Court rather than raising the disputed questions of fact. In the said case, there was a delay of 11 years in filing an application under Section - 482 of Cr.P.C. and, therefore, the said application was dismissed on the ground that there was inordinate delay and laches on the part of petitioner for which not even an iota of explanation is forthcoming in the petition. With the said observations, the Delhi High Court has dismissed the application filed by the petitioner under Section - 482 of Cr.P.C. on the grounds of delay and laches.
vii) In Vandana Agarwal v. The State of West Bengal9, a similar question fell for consideration before the Calcutta High Court. In the said case, there was four years delay in filing the application under Section - 482 of Cr.P.C. challenging the summoning order, and the Calcutta High Court on examination of facts of the said case and also considering that the petitioner therein / accused has actively participated cannot approach High Court under Section - 482 of Cr.P.C. at any time as per his / her choice, caprice or whim. The Calcutta High Court has also discussed that there was no limitation prescribed in filing a petition under Section - 482 of Cr.P.C. The Calcutta High Court has referred to the principle laid down by the 9 . 2015 SCC OnLine Cal..3372 KL,J 14 Crl.P. No.3598 of 2021 Apex Court in State of Punjab v. Davinder Pal Singh Bhullar10, wherein the Apex Court held that power under Section - 482 of Cr.P.C. cannot be resorted to if there is a specific provision in the Cr.P.C. for redressal of the grievance of the aggrieved party or where alternative remedy is available. Such powers cannot be exercised as against the express bar of the law and engrafted in any other provision of the Cr.P.C. Such powers can be exercised to secure the ends of justice and to prevent the abuse of the process of Court. However, such expressions do not confer unlimited/unfettered jurisdiction on the High Court as the "ends of justice" and "abuse of the process of the Court" have to be dealt with in accordance with law including the procedural law and not otherwise. Such powers can be exercised ex debito justitiae to do real and substantial justice as the Courts have been conferred such inherent jurisdiction, in absence of any express provision, as inherent in their constitution, or such powers as are necessary to do the right and to undo a wrong in course of administration of justice as provided in the legal maxim "quando lex aliquid alique, concedit, conceditur et id sine quo res ipsa esse non potest". However, the High Court has not been given nor does it possess any inherent power to make any order, which in the opinion of the Court, could be in the interest of justice as the statutory provision is not intended to by-pass the procedure prescribed. 10
. AIR 2012 SC 364 KL,J 15 Crl.P. No.3598 of 2021
a) It further held that the provisions of Section - 482 of Cr.P.C. closely resemble Section - 151 of Code of Civil Procedure, 1908 and, therefore, the restrictions which are there to use the inherent powers under Section - 151 of CPC are applicable in exercise of powers under Section - 482 of Cr.P.C. and one such restriction is that there exists no other provision of law by which the party aggrieved could have sought relief.
b) The Calcutta High Court referring to the said principle, held that though there was no period of limitation in filing petition under Section - 482 of Cr.P.C., but it does not mean that a party can approach High Court under Section - 482 of Cr.P.C. at any time as per his choice, caprice or whim. Certainly, the answer would be in the negative. He / she must seek the refuge of Section - 482 of Cr.P.C. at the earliest opportunity or within a reasonable time.
c) The Calcutta High Court also referring to the principle in Anama Behera7 and Gopal Chauhan8 held that the inherent powers contemplated under Section - 482 of Cr.P.C. are not mean to help the litigant who had slept over his supposed grievances for more than three years.
d) In Jamuna v. S. Panja @ Samaresh Panja11, the Calcutta High Court held that Section - 482 of Cr.P.C. being discretionary relief should not be granted to a person who has deliberately delayed 11 . 1986 C Cr. L.R. (Cal) 269 KL,J 16 Crl.P. No.3598 of 2021 in coming to the Court and has also failed to file an application under Section - 397 of Cr.P.C.
e) The Calcutta High Court also referred to the decision in Londhe Prakash Bhagwan v.Dattatraya Eknath Mane12, wherein the Apex Court held that if no time-limit has been prescribed in a statute to apply before the appropriate forum, in that case, he has to come before the Court within a reasonable time. The Apex Court on a number of occasions, while dealing with the matter of similar nature held that where even no limitation has been prescribed, the petition must be filed within a reasonable time. The period of 9 years and 11 months, is nothing but an inordinate delay to pursue the remedy of a person and without submitting any cogent reason therefor. The Court has no power to condone the same in such case.
f) In Cicily Kallarackal v. Vehicle Factory13, State of Orissa v. Mamata Mohanty14 and K.R. Mudgal v. R.P. Singh15 , the Apex Court held that the application should be rejected on the ground of inordinate delay. By referring to the same, the Calcutta High Court in Vandana Agarwal9 held that the clear picture reflected is that an application under Section - 482 of Cr.P.C. must be filed within a reasonable time and it should not be vitiated by inordinate delay or laches on the part of the petitioner. It is a phrase incapable of any set definition, but whose meaning varies with context. Generally, it refers 12 . (2013) 10 SCC 627 13 . (2012) 8 SCC 524 14 . (2011) 3 SCC 436 15 . (1986) 4 SCC 531 KL,J 17 Crl.P. No.3598 of 2021 to the amount of time that is fairly required to do whatever is required to be done, conveniently under the permitted circumstances. The term is entirely relative and dependent on circumstances. So much time as is necessary under the circumstances for a reasonably prudent and diligent man to do, conveniently, what the contract or duty requires should be done having regard to the rights and possibilities of loss, if any, to the other party to be affected. Reasonable time means any time which is not manifestly unreasonable under the circumstances. This is defined as that amount of time, which is fairly necessary, conveniently to do what the situation requires to be done. The reasonableness or unreasonableness of time used or taken by a party may be the subject of judicial review in the light of the nature, purpose and circumstances of each case. The term reasonable is a generic and relative one and applies to that which is appropriate for a particular situation. In the law of Negligence, the reasonable person's standard is the standard of care that the reasonably prudent person would observe under a given state of circumstances. An individual who subscribes to such standard can avoid liability for negligence. Similarly, a reasonable act is that which might fairly and properly be required of an individual.
8. CONCLUSION:
i) As discussed above, there is an inordinate delay of about 17 years in filing the present petition under Section - 482 of Cr.P.C. There is no explanation, much less plausible explanation from the KL,J 18 Crl.P. No.3598 of 2021 petitioner with regard to the said inordinate delay. Calendar Case No.6 of 2004 is posted for judgment. The petitioner herein after facing trial filed the present petition under Section - 482 of Cr.P.C. to quash the said proceedings after lapse of 17 years.
ii) As discussed supra, the object of Section - 482 of Cr.P.C. is to prevent abuse of process of Court and to meet ends of justice. The accused cannot be put to hardship. In the case on hand, the petitioner herein has faced the trial and matter is posted for judgment, and no hardship would be caused to him.
iii) In view of the above discussion and the law laid down by various High Courts and the Apex Court, according to this Court, without expressing any opinion on merits including the contentions raised by the petitioner herein that the Inspector of Police, EOW, CID, Hyderabad, is not competent authority to investigate and file charge sheet and that there is no written authorization to maintain offences under Sections - 45S and 58B (5) (a) of the Act, 1934, the present criminal petition is liable to be dismissed, on the ground of inordinate delay of 17 years in filing the criminal petition.
iv) The present Criminal Petition is accordingly dismissed. However, liberty is granted to the petitioner to take all the contentions raised in the present petition before the Court below in C.C. No.6 of 2004.
KL,J 19 Crl.P. No.3598 of 2021 As a sequel, miscellaneous petitions, if any, pending in the Criminal Petition shall stand closed.
_________________ K. LAKSHMAN, J 11th August, 2021 Note:
L.R. Copy to be marked.
(B/O.) Mgr