Bombay High Court
Rajiv S/O. Ramkumar Mishra vs The Superintendent State Cid ... on 10 February, 2021
Bench: Z.A. Haq, Amit B. Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL)NO.684 OF 2018.
Rajiv S/o. Ramkumar Mishra,
Aged about 59 years,
Occ. Legal Practitioner,
Resident of 194, Cement Road,
Dharampeth Extension,
Shivaji Nagar, Nagpur-10 . . . . APPLICANT
. . . VERSUS . . .
1. The Superintendent,
State CID (Crimes),
Jafar Nagar Road, Nagpur.
2. State Bank of India,
Dharampeth Branch,
West High Court Road,
Dharampeth, Nagpur-440010
Through its Branch Manager.
3. Andhara Bank,
Dharampeth Branch,
West High Court Road,
Dharampeth, Nagpur-440010
Through its Branch Manager.
4. Tahsildar,
Nagpur (Rural),
Civil Lines, Nagpur-440001
5. The Collector,
Civil Lines, Nagpur-440001.
6. The State of Maharashtra
through Principal Secretary (Special),
Home Department,
2nd Floor, Mantralaya,
Madam Cama Road,
Hutatma Rajguru Chowk,
Mumbai-400032. . . . NON-APPLICANTS
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...
Shri Shyam Dewani, Advocate for applicant.
Shri T.A.Mirza, APP for non-applicants nos. 1, 4, 5 and 6
State.
...
CORAM : Z. A. HAQ AND AMIT B. BORKAR, JJ.
DATED : 10.02.2021.
ORAL JUDGMENT (PER : AMIT B. BORKAR, J.) :
1. Rule. Rule is made returnable forthwith.
2. This is an application under Section 482 of Code of
Criminal Procedure challenging the communications dated
27th November 2018 and 5th December 2017 issued by the
non-applicant no.1 to the non-applicant nos. 2 and 3 freezing bank
account and the locker of the applicant and also letter dated 16 th
December 2017 and the Notification dated 2 nd August 2019 issued
by the non-applicant no.6 published in the Official Gazette dated 6 th
August 2019.
3. The First Information Report came to be registered
against the applicant bearing Crime No.338 of 2007 with Sitabuldi
Police Station, Nagpur for offences punishable under Sections 406,
408, 409, 467, 468, 471, 420, 201, 120-B and 109 read with Section
34 of the Indian Penal Code, 1860 and Section 65 of the Information
Technology Act, 2000 alongwith Section 3 of the Maharashtra
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Protection of Interest of Depositors (In Financial Establishments) Act,
1999 (for short "the Act of 1999").
4. The First Information Report came to be registered
against the applicant and others with the accusation that the
applicant being the Managing Committee member of the Cooperative
Bank alongwith other Managing Committee members disbursed loans
to the borrowers without following procedure prescribed and without
taking securities for the loans. It is further alleged that the applicant
alongwith other Managing Committee members have done acts,
which were detrimental to the interest of the bank, resulting into
huge losses to the bank and have defrauded and misappropriated the
account holders of the bank, of an amount of
Rs.145,60,56,332/-. It is alleged that the said misappropriation took
place between the period from 30 th March 1997 till 31st March
2006.
5. The applicant - petitioner had challenged registration of
the First Information Report by way of filing Writ Petition No.11 of
2020. This Court by way of the judgment and order dated 10 th
February 2021 allowed the said Petition and quashed the First
Information Report No.338 of 2007 and consequent charge-sheet
filed against the applicant.
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6. By way of present application, the applicant has
challenged order of freezing Saving Account of the applicant dated
27th November, 2018 and 5th December, 2017 and the Notification
dated 2nd August 2019.
7. The impugned communications dated 27th November
2018, 5th December 2017 and 16th December 2017 have been issued
in exercise of power under Section 102 of Code of Criminal
Procedure. Section 102 of the Code of Criminal Procedure empowers
the Police Officer to seize any property, which is found under
circumstances which create suspicion of the commission of any
offence. It is settled law that the power under Section 102 of the
Code of Criminal Procedure can be exercised, if the Investigating
Officer comes to prima facie conclusion that the amount in the
account has any connection with the offence alleged against the
accused. By the recent judgment, this Court in Writ Petition No.11 of
2020 has quashed First Information Report No.338 of 2007 and
consequent charge-sheet dated 30th June 2010 in R.C.C.No.2190 of
2008, as ingredients of offences registered against the applicants
were not fullfilled. We are therefore satisfied that the order of
attachment under Section 102 of Code of Criminal Procedure in
relation to the offences under Crime No.338 of 2007 and consequent
Charge-sheet, cannot be continued. We, therefore, pass the following
order:
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ORDER
Communications dated 27 th November 2018 and 05th
December 2017 (Annexure-E) and letter dated 16 th December 2017
(Annexure-G) and the Notification dated 2nd August 2019 published
in Official Gazette dated 6th August, 2009 (Annexure-I) are quashed
and set aside.
Rule is made absolute in the above terms.
JUDGE JUDGE
Ambulkar.
