Ezulix Software Pvt. Ltd., Thr Its ... vs State Of Maharashtra, Thr Pso Ps ...
2021 Latest Caselaw 6378 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH : NAGPUR

               CRIMINAL APPLICATION (APL) NO. 811 OF 2020

  Ezulix Software Pvt. Ltd. through its
  Managing Director Arvind Kumar Saini
  (CIN No. U72900RJ2018PTC060266)
  having its Registered Office at Plot No. 54,
  Padmavati, B Colony, Kings Road,
  Nirman Nagar, Jaipur-302019,
  Rajasthan.                                                   . . . APPLICANT

                         ...V E R S U S..

  1. State of Maharashtra through
     Police Station Officer,
     Police Station Pratap Nagar,
     Rana Pratap Nagar, Nagpur.

  1a. State of Maharashtra through
      Cyber Cell, Crime Branch,
      Nagpur.

  2. ICICI Bank Limited,
     through its Branch Manager,
     Jaipur Nirman Nagar,
     Shiv Gyan Enclave,
     Goutam Marg, Nirman Nagar,
     Kings Road, Jaipur - 302019.

  3. Mr. Padinjakra S/o. Rajgopalan Menon,
     Aged about 78 years, Occ. Retired,
     R/o. 501, Poonam Pride,
     Above State Bank of India,
     Pande Layout, Khamla,
     Nagpur-440025.


  4. Mr. Amarjeet Kumar,
     Aged about 31 years,
     R/o. Ward No. 38, Main Market,
     Dumanhill, Sonawani Colly,
     Chirimiri, Koriya,                                 . .NON-APPLICANTS
     Chattisgarh-497557


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 Shri Apurv De, Advocate for applicant.
 Shri T. A. Mirza, A.P. P. for non-applicant no. 1 and 1a/State.
 Shri M. R. Joharapurkar, Advocate for non-applicant no. 2.
 Shri U. P. Dable, Advocate for non-applicant no. 3.
 Shri Mahesh Rai, Advocate for non-applicant no. 4.
 -----------------------------------------------------------------------------------------------
                               CORAM :- Z. A. HAQ AND
                                        AMIT B. BORKAR, JJ.

DATED :- 09.04.2021

JUDGMENT (PER : AMIT B. BORKAR, J.) :-

1. Heard.

2. Rule. Rule made returnable forthwith.

3. By this application under Section 482 of the Code of

Criminal Procedure, the applicant has challenged the order dated

26.05.2020 passed by the non-applicant no. 1 and 1a, thereby

directing freezing of bank account of the applicant in view of

registration of Crime No. 99/2020 under Sections 419, 420 of the

Indian Penal Code and 66C and 66D of the Information Technology

Act, 2000.

4. The non-applicant no. 3 registered the First Information

Report (FIR) against the unknown persons alleging that unknown

persons have called him on his cell-phone and by sending link they

persuaded the non-applicant no. 3 to download an application and

after downloading the said application, an amount of Rs. 7,50,000/-

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was illegally withdrawn from his account without his knowledge. It

appears that the non-applicant nos. 1 and 1a carried out investigation

and during the course of investigation, it is allegedly revealed that the

applicant along with others were the beneficiaries of the amount

withdrawn from the account of the non-applicant no. 3. The non-

applicant no. 1 therefore, issued order directing the non-applicant no.

2-Bank to freeze the bank account of the applicant. The applicant has

therefore challenged the registration of the FIR by filing the present

application. This Court on 15.12.2020 issued notice to the non-

applicants and the non-applicant no. 2 filed his reply stating that it had

to freeze the bank account of the applicant in view of the directions

issued by the non-applicant no. 1 on 26.05.2020.

5. The non-applicant no. 4 has filed reply stating that he is

retailer, who used the e-wallet portal of the applicant's software to top-

up his wallet, which is equivalent to the amount transferred in the

bank account of the applicant after deducting service charges of the

applicant. It is alleged that one Hiteshbhai Raiyabhai Bambhava,

resident of Rajkot, who had cheated the non-applicant no. 2 and others

but, the non-applicant no. 1-Investigating Agency instead of taking

action against the said Hiteshbahi Bambhava had directed freezing of

account of the applicant. It is stated that role of the applicant ends as

soon as it tops-up the wallet of the non-applicant no. 4. It is further

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stated that the non-applicant no. 1 has not reported freezing of bank

account to the concerned Magistrate, which is mandatory as per

Section 102(3) of the Code of Criminal Procedure (in short "the

Code").

6. It appears that during course of investigation, the non-

applicant no. 3 had file Misc. Criminal Application No. 2259/2020

before the Judicial Magistrate First Class, No. 9 at Nagpur on

14.08.2020 stating that the non-applicant no. 3 has received an

amount of Rs. 7,50,000/-, which is subject matter of the crime and

therefore, it is prayed before the learned Magistrate that account of the

applicant be de-froze.

7. The non-applicant no. 1-Investigating Agency has not filed

its reply. We have carefully considered the impugned order dated

26.05.2020. At this stage it will be relevant to note Section 102 of the

Code, which reads as under:-

"102. Power of police officer to seize certain property.

(1) Any police officer, may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.

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                (2)            Such police officer, if subordinate to the officer

in charge of a police station, shall forthwith report the seizure to that officer.

(3) Every police officer acting under sub- section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same."

8. On careful consideration of Section 102 of the Code of

Criminal Procedure shows that Police Officer in the course of

investigation can seize any property under Section 102 of the Code, if

such property is alleged or anticipated to have stolen or which may be

found under circumstances which creates suspicion of commission of

any offence. As per Section 102(1) of the Code, it is obligatory upon

the Investigating Agency to show that the property, which is attached,

is under circumstance which creates suspicion of commission of

offence.

9. Taking into consideration the offence, which are alleged

against the applicant, it was necessary for the Investigating Agency to

show that the amount in the account of the applicant, which had been

froze, is in connection with the offence alleged against the applicant.

From the material produced by the applicant, it appears that the

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applicant is owner of the software, designed and developed by it to do

the business with it's agent who needs money in digital form. As per

the procedure, the agent is required to request the applicant to top-up

the amount required in their bank account and role of the applicant

ends as soon as it tops-up the wallet of a person making the request

equivalent to the amount transferred in its bank account. It is not in

dispute that the amount of Rs. 7,50,000/- has been repaid to the non-

applicant no. 3-Complainant. The non-applicant no. 4 on oath has

stated that it is one Hiteshbhai Bhambhave, who has cheated them and

therefore, it was necessary for the non-applicant no. 1-Investigating

Agency to investigate role of the said person. The non-applicant no. 1

has failed to file reply to explain the role of the applicant. There is no

material to show that the amount in the account of the applicant is in

connection with the offence alleged against the applicant. The

prosecution has not been able to show that ingredients of sub-Section

3 of Section 102 of the Code of reporting seizure to the Magistrate had

been complied with. We are therefore satisfied that the impugned

communication dated 26.05.2020 deserves to be quashed and set

aside.

10. We, therefore, pass the following order :-

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              (i)            The impugned communication dated 26.05.2020 issued by

the non-applicant no. 1 and 1a attaching account of the applicant is

quashed and set aside.

(ii) The non-applicant no. 1 and 1a are directed to de-freeze the

ICICI Bank Account No. 674905600638 of the applicant forthwith.

Rule is made absolute in the above terms.

                             JUDGE                                           JUDGE

RR Jaiswal