Bombay High Court
M/S F. A. Construction, Mumbai And ... vs State Of Maharashtra Through ... on 22 September, 2016
Bench: S.B. Shukre
J-apl359.16&288.16.odt 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) No.359 OF 2016
1. M/s. F.A. Construction,
Plot No.112, 1st Floor, T.P.S. III,
Opp. Hotel Oriental Palace,
Khar (West), Mumbai-400 052.
2. Nisar Fateh Mohd. Khatri,
S/o. Fateh Mohammed Khatri,
Aged 50 years,ig
Residing at 275 & 291,
EM Estate Blocks, 30th Road,
Bandra (W), Mumbai-400 050. : APPLICANTS
...VERSUS...
1. State of Maharashtra,
through Superintendent of Police,
Anti Corruption Bureau, Nagpur.
2. Bank of Baroda,
Khar (West) Branch,
Mumbai-400 054,
Through its Branch Manager : NON-APPLIANTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri Shyam Dewani, Advocate for the Applicants.
Shri A.M. Deshpande, Additional Public Prosecutor for Non-applicant No.1.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
AND
CRIMINAL APPLICATION (APL) No.288 OF 2016
1. M/s. F.A. Construction,
Plot No.112, 1st Floor, T.P.S. III,
Opp. Hotel Oriental Palace,
::: Uploaded on - 23/09/2016 ::: Downloaded on - 29/09/2016 00:14:30 :::
J-apl359.16&288.16.odt 2/6
Khar (West), Mumbai-400 052.
Through Managing Partner,
Nisar Fateh Mhd. Khatri.
2. Nisar Fateh Mohd. Khatri,
S/o. Fateh Mohammed Khatri,
Aged 50 years,
Residing at 275 & 291,
EM Estate Blocks, 30th Road,
Bandra (W), Mumbai-400 050. : APPLICANTS
...VERSUS...
1. State of Maharashtra,
through Superintendent of Police,
Anti Corruption Bureau, Nagpur.
2. Canara Bank,
Khar (West) Branch,
Mumbai-400 052,
Through its Branch Manager.
3. Union Bank of India,
Santacruz (West) Branch, Mumbai,
Through its Branch Manager.
4. Bombay Mercantile Co-operative
Bank Limited,
274, Bashabhai Compound,
Off. Bandra Jama Masjid,
S.V. Road, Bandra (W), Mumbai-50,
Through its Branch Manager.
5. Indian Bank,
Bandra (West) Branch, Mumbai-50,
Through its Branch Manager. : NON-APPLIANTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri Shyam Dewani, Advocate for the Applicants.
Shri A.M. Deshpande, Additional Public Prosecutor for Non-applicant No.1.
Shri S.D. Ingole, Advocate for the Non-applicant No.3.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
::: Uploaded on - 23/09/2016 ::: Downloaded on - 29/09/2016 00:14:30 :::
J-apl359.16&288.16.odt 3/6
CORAM : S.B. SHUKRE, J.
nd SEPTEMBER, 2016.
DATE : 22
ORAL JUDGMENT :
1. Heard finally by consent of learned counsel appearing for
the parties.
2. Criminal Application (APL) No.359/2016 :
Challenges the communication, which is in fact an order
passed under Section 102 of the Code of Criminal Procedure dated
7.4.2016 directing freezing of the account bearing account
No.03990200000895 standing in the name of M/s. F.A. Construction,
with bank of Baroda, Khar (W) branch, Mumbai.
3. Criminal Application (APL) No.288/2016 :
Challenges six communications, all dated 7.4.2016 and all in
the nature of orders passed under Section 102 of the Code of Criminal
Procedure, directing the bank to freeze six accounts standing in the name
of M/s. Uke Construction with various banks. The details of these
accounts, which have been frozen as per these communications are given
on pages 4 and 5 of this application.
4. These accounts, admittedly stand in the name of M/s. F.A.
Construction and M/s. F.A. Construction has not been made an accused
in the charge-sheet filed against various persons including the managing
J-apl359.16&288.16.odt 4/6
partner of M/s. F.A. Construction in the scam popularly known as
'Irrigation Scam'. The property, in the account undoubtedly is the
property which can be seized by exercising power under Section 102 of
the Criminal Procedure Code and that means, the essential condition for
seizure of the property mentioned in Section 102 must be fulfilled, before
the power is exercised. The essential condition being that the property to
be seized must be alleged or suspected to be stolen property or must be
the property which has been acquired in the commission of the crime.
The cheques issued in this case and deposited in all these accounts were
in the name of M/s. F.A. Construction and that is the reason why they
came to be lodged in these accounts. The partnership firm M/s. F.A.
Construction now is not an accused and, therefore, it cannot be
reasonably said that the cheques issued in the name of M/s. F.A.
Construction represented the amounts which were suspected to be the
fall out of crime committed by various accused persons. Had it not been
so, M/s. F.A. Construction would have been made an accused in the
present case. It is also not the case that the cheques were issued in the
names of some of the accused persons, who utilized their position as the
partner of M/s. F.A. Construction and deposited those cheques in the
account of M/s. F.A. Construction. Such being the nature of suspected
transactions in these accounts, I am of the view that the learned counsel
for the applicant is right when he says that there is no reasonable nexus
J-apl359.16&288.16.odt 5/6
between the property in these accounts and the commission of the
alleged offences. In the result, I find that the impugned communications
deserve to be quashed and set aside.
5. Both the applications are allowed.
6. The impugned communications are quashed and set aside.
7. All the seven accounts are de-freezed.
8. The applications are disposed of in these terms.
ig JUDGE
okMksns
J-apl359.16&288.16.odt 6/6
CERTIFICATE
"I certify that this Judgment uploaded is a true and correct
copy of original signed judgment ."
Uploaded by : D.W. Wadode, P.A.
Uploaded on : 23.9.2016.
