Andhra Pradesh High Court - Amravati

I.V.R. Krishnam Raju vs Additional Sp Of Police on 8 December, 2021

          THE HON'BLE SRI JUSTICE D.RAMESH

        CRIMINAL REVISION CASE NO.528 OF 2021

ORDER:

This Criminal Revision Case under Sections 397 and 401 of

the Code of Criminal Procedure, 1973 (for short „Cr.P.C.‟) is filed

with a prayer to set aside the order dated 17.8.2021 in

Crl.M.P.No.62 of 2021 in Cr.No.RC/04(A) of 2018 on the file of the

Principal Special Judge for CBI Cases, Visakhapatnam and to

relax the condition „shall submit the petition document as and

when required before this Court‟, imposed in the order dated

04.02.2021 passed in Crl.M.P.No.3 of 2021 in crime No.RC/04(A)

of 2018 by learned Principal Special Judge for C.B.I. Cases,

Visakhapatnam.

2. The case of the petitioner is that respondent-C.B.I registered

a case in RC 04(A)/2018 against the accused with an allegation

that some bank officials of IDBI Bank, Bheemavaram, West

Godavari District along with some other persons, valuers and

auditors entered into criminal conspiracy, abused their official

position and dishonestly sanctioned kisan credit card loans in

favour of 226 borrowers arranged by eight aggregators on the basis

of fake documents in respect of lease deeds. In the course of

investigation, the officials conducted search at the residential

premises of the petitioner in Hyderabad and his office premises by

name All India, Prawn Farmer Association in Bheemavaram on

28.03.2018 and seized original sale deed document bearing

No.6051 of 2017 as shown in serial No.1 of the search list. The

case of the petitioner is that he availed loan from the bank in the

year 2011 and he had completely repaid the said amount, as such

he is no way concerned with the above crime. As the petitioner was

in need of the said document for his business activities he filed a

petition under Section 451 read with 457 Cr.P.C. before learned

Special Judge for CBI Cases, Visakhapatnam for return of the

original sale deed bearing document No.6051 of 2017 pertaining to

plot No.948 admeasuring 1095 square meters in S.No.120 (new) of

Shaikpet village and S.No.102/1, Hukkumpet village, Hyderabad,

which was seized by search memo dated 28.03.2018 and stated

that the petitioner will not sell or mortgage and to produce the

document before the Court as and when required.

3. The Court below while allowing and directing the respondent-

C.B.I. to return the subject document has imposed conditions that

the petitioner shall substitute the document with self attested

Photostat copy and shall file a written undertaking before the

Court that he shall produce the petition schedule document before

the Court as and when directed for the purpose of investigation or

trial. Assailing the condition that „the petitioner shall produce the

petition schedule document as and when required before the

Court‟, the present revision is filed.

4. Heard Smt. Jami Madhavi, learned counsel for the petitioner

and Sri A.Channakeshavulu, learned Public Prosecutor for CBI.

5. Learned counsel for the petitioner submits that the

residential premises of A4, in Hyderabad and the office premises of

All Prawn Farmers Association, Bhimavaram were searched along

with the petitioner‟s house and some documents including the

documents which are no way related to the above crime were

seized. He submits that the Court below though observed that the

petitioner is a third party and there are no evidence recorded

against him, has imposed the above condition without assigning

any reasons. He further submits that the entire investigation is

completed and the subject document is not related to the present

crime and hence, the petitioner need not produce the same for

investigation or for trial.

6. Learned counsel for the petitioner places reliance on order

dated 20.03.2021 passed by this Court in W.P.Nos.9338 of 2020

and batch and submits that in the said judgment the Court

observed that as the property is purchased before the commission

of the offence, it does not fall under the definition of "proceeds of

crime" and therefore it cannot be attached or confiscated under

the Act and consequently, the attachment and subsequent

proceedings before the Adjudicating Authority for confiscation of

the properties would have to be struck down.

7. Subsequently, the petitioner filed Criminal Revision Case

no.386 of 2021 questioning the conditions imposed in the order

dated 04.02.2021 passed in Crl.M.P.No.3 of 2021 in Crime

No.RC/04(A) of 2018 by the Principal Special Judge for

C.B.I.Cases, Visakhapatnam and the same was disposed of with

the following order:

"The Court below has passed the order by imposing conditions basing on the application filed by the petitioner and this Court finds no error on the face of the order passed by the Court below and this revision deserves to be dismissed. However, learned counsel for the petitioner submits that in view of the order passed by this Court in W.P.Nos. 9338 of 2020 and batch, they will file an appropriate application seeking modification of the order before the Court below"

8. Basing on the observations in the above said order, the

petitioner has filed Crl.M.P.No.62/2021 in Crime No.RC/04(A) of

2018 by the Principal Special Judge for C.B.I.Cases,

Visakhapatnam requesting the Court to relax the condition

imposed in Crl.M.P.No.3/2021 dated 04.02.2021 to effect that

the petitioner shall submit the petition schedule document as

and when required before the bank for the purpose of

investigation or trial.

9. The contention of the petitioner is that he is only a borrower

of loan from the bank in the year 2011 and completely repaid the

same and the petition schedule document is no way concerned

with the crime and the petitioner is a third party to the crime and

the property mentioned in the documents is neither inter

connected with the crime nor proceeds of trial. On perusal of the

petition and affidavit filed by the petitioner, the Court below has

considered the entire facts and passed an elaborate order by

rejecting the claim of the petitioner with the following

observations:

"The plea of the petitioner is nothing but seeking the sanction of the Court for dealing with the property under the petition which is completely against the procedure particularly were the under lying investigation is still pending. The conditional custody of document, pending investigation, perse does not gravitate the permission to dispose the property. There are no considerable change in circumstances convincing the Court either on facts or law. The investigation in this case is undisputedly pending. The question whether the document under discussion forms the part of relevancy or not shall be determined only at appropriate stage. The fact that the crime under discussion is a white collar offence involving misappropriation of huge amount of public money cannot be circumvented. The plea of petitioner therefore, to relax the condition to produce the document before this court as and when required for the purpose of investigation or trial cannot be relaxed permitting him to deal with the property by way of sale or mortgage as prayed for. Accordingly this Court is of the opinion that there

are no reasonable grounds to allow the petition as prayed for specifically at this premature stage of investigation. The petition is hence liable to be dismissed."

10. Assailing the same, the present revision is filed. The sole

ground urged by the petitioner while assailing the impugned

orders are that the Court below has not considered the

observations of the High Court in earlier round of litigation in

Criminal Revision Case No.386 of 2021 that in view of the orders

passed by this Court in W.P.No.9338 of 2020 and batch, they will

file an appropriate application seeking modification of the orders

before the Court below. Basing on the said observations made by

the High Court, the petitioner has filed the present application

before jurisdictional Court for relaxation of the condition by

considering the orders passed by the High Court in W.P.No.9338

of 2020 and batch. But the Court below has not considered the

orders passed by the High Court in the said writ petition without

discussing about the orders of the High Court the same was

rejected which is contrary to the directions of the High Court in

Criminal Revision Case No.386 of 2021.

11. Another contention of the petitioner is that the petitioner is

no way concerned with the crime and the subject property

acquired by the petitioner was much prior to the registration of

the crime. In fact a batch of writ petitions were allowed by the

High Court and the attachment order of the respondent herein

dated 31.12.2019 and all consequential proceedings to the

impugned provisional attachment including notice issued by R3

dated 06.02.2020 in O.C.No.1253 of 2020 to the extent of the

properties attached under Table-I are set aside. In view of the

said orders, the present subject property is an attachment under

Table-I. Hence at any rate, the respondents are not entitled to

hold the document of the petitioner, in view of the same, the

condition imposed by the Court below needs to be relaxed in view

of the orders passed by the High Court in W.P.No.9338 of 2020

and batch.

12. After notice, the respondents have filed their counter

wherein they have stated that the case was registered in RC 04

(A)/2018 on 27.3.2018 by C.B.I, ACB, Visakhapatnam basing on

the complaint given by Sri Prafulla Kumar Behera, General

Manager and Senior Regional Head, IDBI Bank Ltd. Regional

Office, Visakhapatnam. The allegations are that A1 and A2 who

worked as Chief General manager and Deputy General Manager

of IDBI Bank during the period 2009 to 2012, directed the

branch level officers in processing and recommendation of loans

to the extent of 159.24crores by way of kisan credit cards/short

term loans relating to 226 borrowers arranged by A3 to A10 who

are said to be aggregators, without conducting pre and post

sanction inspection, wherein bank panel valuers i.e. A11 to A17

over valued the collateral properties in pursuance of criminal

conspiracy. Other accusation against A3 to A10 is that they

created documents as if fish tanks were existence in the names of

the borrowers and thereby caused wrongful loss to the bank.

They further averred that during the course of investigation, the

officials of the C.B.I conducted search at the residential premises

of accused Sri I.P.R.Mohan Raju (A4) on 28.3.2018 and seized

certain documents including documents mentioned in the

petition vide search list dated 28.3.2018.

13. Learned counsel appearing on behalf of the petitioner heavily

relied on the observations of the Court in earlier criminal revision

that liberty is given to the petitioners to file a petition before the

Court below in view of the orders passed by this court in

W.P.No.9338 of 2020 and batch. Despite giving liberty by the

High Court, the Court below has not considered the orders of this

Court in W.P.No.9338 of 2020 and batch though the attachment

orders were set aside by the High Court in the said batch.

Without considering the said aspect, the Court below has not

relaxed the condition imposed on the orders dated 04.02.2021.

14. Learned counsel further submitted that the properties are

acquired by the petitioner even prior to the initiation of the crime

against A4 and the petitioner is a third party and he has nothing

to do with the crime. Hence the condition imposed by the Court

below may be relaxed.

15. Per contra, learned standing counsel appearing on behalf of

the respondent submitted that initially the petitioner has filed an

application under section 451 r/w 457 Cr.P.C. requesting the

court to direct the investigating officer to return the original sale

deed bearing document no.6051/2017 seized vide search list

dated 28.3.2018 at the house of the petitioner at Hyderabad in

RC 4(A)/2018, to the petitioner. Along with the said petition, the

petitioner has also made a conditional undertaking in the

petition to produce the document before this Court when and as

required without entering into transaction as well mortgage.

Considering the said undertaking given by the petitioner, the

Court has considered and passed an order on 04.02.2021. Now

the petitioner cannot entitle to file the present application

contrary to the undertaking given in the earlier occasion. As far

as the third plea is concerned, the petitioner is not entitled to

seek such plea in view of the definition under section 5 of the

Money Laundering Act. „Proceeds of Crime‟ is defined in section

2(1)(u) of the Act which reads as follows:

"2(u): Proceeds of crime means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property [(3) or where such property is taken or held outside the country, then the property equivalent in value held within the country] [(4) or abroad];

[(5) Explanation: for the removal of doubts, it is hereby clarified that „proceeds of crime‟ including property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence;] (3) Inseerted by the Finance Act, 2015 (20 of 2015), Section 145(i) (w.e.f.14.5.2015);

(4) Inserted by Act 13 of 2018, Section 208(a) (w.e.f.19.4.2018), vide G.S.R.

383 (E) dated 19.4.2018) (5) Inserted by the Finance (No.2) Act, 2019,section 192(iii)(w.e.f.01.08.2019)

In view of the above provision, if any property derived or

obtained directly or indirectly by any person comes under the

meaning of proceeds of trial. In the instant case though the

property is in the name of the petitioner, but the same was seized

in residential premises of A4 at the time of search. In the said

circumstances, it comes under the definition of section 2(1)(u) of

the Act.

16. Further learned standing counsel has submitted that as

against the orders passed by this Court in W.P.No.9338 of 2020

and batch the respondents have preferred appeal vide

W.A.No.311 of 2021 and the said orders were suspended by the

Division Bench vide its orders dated 18.7.2021 of the orders

passed by the learned Single Judge in W.P.No.9338 of 2020 and

batch. Apart from the above, learned standing counsel has also

relied on the judgment of the Madras High Court in State

Represented by Inspector of .... Vs Renuka Devi 1 wherein in

an identical issue was crept up and the High Court has held that:

While going into the reasonings and the nature of the relief granted by the trial Court, I am of the view that the trial Court by directing the C.B.I, police to return the documents, has virtually, accepted the plea of the respondent, who is the wife of the accused, stating that those documents relating to her properties.

Furthermore, it is noticed that the trial Court has gone to the extent of directing the C.B.I. to take xerox copy of all those documents and return the originals to the respondent and that those true xerox copies could be marked as exhibits even during the course of trial.

I am at a loss to understand as to how this could be done, especially when these original documents are very much essential for further investigation by the C.B.I. police whose case is that all the properties including the properties [mentioned in the documents in question were illegally acquired by the accused in his name and in the name of his wife and children.

This is virtually the defence plea put forward by the accused through her wife in these applications. On consideration of the said plea, if the applications under Section 457, Cr.P.C. are allowed by deciding that the respondent/wife of the accused is entitled to the same, it would amount to accepting the plea of the defence, even during the course of investigation, consequently, there would be a serious prejudice to the prosecution. The Investigating Agency, as laid down by the Apex Court time and again, must be allowed to have a free hand in the collection of materials on the basis of the original documents already seized, in order to substantiate the charge under Sections 13(2) and 13(l)(e) of the Prevention of Corruption Act.

In view of the observations made in the above said judgment,

the Court should not allow the petitions filed under section 457

of Cr.P.C for interim custody of the documents which hamper

investigation.

1999 CrlLJ 2955

17. Considering the submissions made by both the counsel and

on perusal of the record, the fact remains that whatever the

reliance made by the petitioner in orders in W.P.No.9338 of 2020

and batch was already interdicted by the Division Bench of this

Court in W.A.No.311 of 2021 dated 18.7.2021 and the fact

remains that the Court below has allowed the application made

by the petitioner at the earlier instance based on the undertaking