Page No.# 1/9 vs The State Of Assam And 5 Ors
2022 Latest Caselaw 907 Gua

                                                                 Page No.# 1/9

GAHC010052082020




                          THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                            Case No. : WP(C)/2031/2020

         RAHUL HI RISE LTD. AND ANR.
         A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING
         ITS REGD. OFFICE AT 30H/1 B.B. SENGUPTA ROAD, KOLKATA-700034.

         2: ABHIJIT MAJUMDAR
          S/O. LT. BHUPENDRA NARAYAB MAJUMDAR
          30H/1 B.B. SENGUPTA ROAD
          KOLKATA-700034. ONE OF THE DIRECTORS OF THE PETITIONER NO.1
         COMPANY

         VERSUS

         THE STATE OF ASSAM AND 5 ORS.
         REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, HOME DEPTT.,
         DISPUR, GUWAHATI, ASSAM.

         2:THE DIRECTOR GENERAL OF POLICE
          STATE OF ASSAM
          HAVING HIS OFFICE AT ASSAM POLICE HEAD QUARTERS
          ULUBARI
          GUWAHATI-781007.

         3:THE SUPDT. OF POLICE

          BARPETA
          DIST. BARPETA
          ASSAM.

         4:STATE BANK OF INDIA

          TOLLYGUNGE CIRCULAR ROAD BRANCH
          34
          T.C. ROAD
          KOLKATA
                                                                      Page No.# 2/9

             PIN-700053
             REP. BY ITS BRANCH MANAGER.

            5:THE OFFICER IN CHARGE

             BARPETA ROAD POLICE STATION
             BARPETA
             ASSAM.

            6:STATE BANK OF INDIA

             SIRITI MUCHIPARA BRANCH
             423-D MOTILAL GUPTA ROAD (MUCHIPARA)
             KOLKATA-700082
             REP. BY ITS BRANCH MANAGER

Advocate for the Petitioner   : MR. K AGARWAL

Advocate for the Respondent : GA, ASSAM




                                  BEFORE
                 HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

                                          ORDER

Date : 15-03-2022 Heard Mr. K. Agarwal, the learned Senior Counsel assisted by Mr. A. K. Gupta, the learned counsel for the petitioner. Also heard Mr. G. Pegu, the learned Government Advocate, Assam for the respondent Nos. 1, 2, 3 and 5 and Mr. V. K. Boraah, the learned counsel for the respondent Nos. 4 and 6.

2. The case of the petitioner is that the Petitioner No. 1 is one of the Company of Rahul Group of Companies, incorporated under the provisions of Companies Act, 1956. It is pleaded by the petitioner Company that it has been providing services for new residential projects, new commercial projects, old building acquisitions etc. The Company collects financial fund by issuing redeemable debentures for implementing / completing its ongoing projects. The Company also collects financial fund under Project Booking Scheme and Monthly Page No.# 3/9

Incentive Scheme.

3. It is the case of the petitioner / Company that the Company started its business for collection of financial fund in the Barpeta district with effect from the month of February, 2009 and continued till 26.05.2011.

4. One Harkishore Choudhury filed a complaint on 25.05.2011 before the Superintendent of Police, Barpeta alleging financial irregularities and on the basis of the said complaint, criminal prosecution was initiated vide General Diary Entry No. 1644, Barpeta P.S. dated 28.05.2011 and on the basis of the said complaint dated 25.05.2011, Barpeta Road P.S. Case No. 136/2011 under Sections 406/420 of the IPC was registered. The Office of the Company was raided. During the process of investigation, two computers along with official documents were seized by the police personnel of Barpeta P.S. on 27.05.2011. Thereafter, according to the petitioner, on 28.05.2011 the bank accounts of the petitioner / company maintained in Axis Bank in its Jalpaiguri and Cooch Behar Branch bearing No. 442010200006262 and No. 396010200008556 respectively were freezed on the basis of request made by Superintendent of Police, Barpeta by communication dated 28.05.2011. Similar request was also sent to the Branch Manager relating to the bank accounts of the company maintained in the State Bank of India in its Tollygunge Circular Road Branch, Kolkata bearing No. 30563436805 and No. 30557143055 and account No. 31783370730 in State Bank of India, Siriti Muchipara Branch, Kolkata. Accordingly, the Bank accounts were frozen.

5. The said notice dated 28.05.2011 issued by the Superintendent of Police, Barpeta is quoted herein below:-

Office of the Superintendent of Police:: Barpeta Page No.# 4/9

BPTA/V/11/2483 Dated 28.05.2011.

To, The Branch Manager Axis Bank, Barpeta Road.

Sub: Investigation into the complaint received alleging cheating and fraud by Rahul High Rise Ltd.

Ref: General Diary Entry No. 164 Barpeta PS, Dated 28.05.2011. Sir, A complaint was received, alleging cheating and fraud by Rahul High Rise Ltd. The complainant also alleges that the proceeds of cheating are lodged in the following bank accounts.

In order to proceed with necessary legal action the undersigned require the transaction details of the following bank accounts since 01.01.2009.

Hence it is requested that the transaction details of the following bank accounts may be provided. If the data is voluminous, it can be provided as soft copy. Also requested to "freeze the following accounts" until the undersigned requests you to release the same.

This request is in tune with Section 91 of Criminal Procedure Code, 1973 read with Section 36 of the same Act, If you are not the competent authority to do the same, it is hereby requested to forward this to the competent authority by quickest means for necessary action.

A/C Holder     A/C No.                Branch

RAHUL     HI 396010200008556          Axis Bank, Cooch Behar
RISE LTD.

RAHUL     HI 442010200006262          Axis Bank, Jalpaiguri
RISE LTD.

The matter may be kept confidential until the required legal action is done, as, the accused persons may withdraw the money and go aloof if the information is leaked out.

Page No.# 5/9

Superintendent of Police, Barpeta".

6. Being aggrieved by the action of freezing of accounts, the petitioner / Company approached this Court by filing WP(C) No. 118/2018 challenging the aforesaid request of freezing dated 28.05.2011. The prayer made in the said writ petition was amongst other were as under:-

"(a) Writ in the nature of certiorari should not be issued setting aside and quashing the notice dated 28th May, 2011 and the notice dated 20th September, 2011;

(b) Mandamus should not be issued commanding the respondents, their men, agents and servants to rescind, recall and / or cancel the notices dated 28 th May, 2011 and 20th September, 2011".

7. Similar communication dated 28.05.2011 was also sent to the State Bank of India. On the basis of the said communications dated 28.05.2011, both the Axis Bank of Cooch Behar and Jalpaiguri Branch where the petitioner Company was having its accounts and in the State Bank of India having Tollygunge Circular Road, Kolkata, Branch were freezed and the same were intimated the petitioner by the respective Banks.

8. The information of such freezing of the accounts was intimated to the petitioner Company by the Branch Manager of State Bank of India of Tollygunge Circular Road, Kolkata vide its communication dated 30.05.2011. The same is reproduced herein below:-

"Dated: 30.05.2011 Page No.# 6/9

Ref No. BM/GEN/40/75 To.

M/S RAHUL HI RISE LTD.

P-745, KUNDAN LAL SAIGAL SARANI NEW ALIPORE, BLOCK-P KOLKATA-700053.

Dear Sirs, Sub: INVESTIGATION INTO THE COMPLAINT M/S RAHUL HI RISE LTD ACCOUNT NO. 30563436805 AND 30557143055 REF: GENERAL DIARY ENTRY NO. 1644 BARPETA PS, DATED 28.05.2011.

We have been instructed by the Superintendent of Police, Barpeta, vide their letter No. BPTA/V/11/2484 dated 28/05/2011 in connection with above case to freeze your accounts Nos. 30563436805 and 30557143055 under Section 91 of Criminal Procedure Code, 1973 read with Section 36 of the same Act.

In view of the aforesaid, the operation in the said accounts have been stopped until further communication by the Police Authorities in this regards. This is for your information and necessary action.

Yours faithfully, Branch Manager".

9. This Court while adjudicating the issue of the action of the Investigating Authority in the aforesaid writ petition came to the following conclusion:-

"7. It is primarily the legality and correctness of the notice dated 28.05.2011, which is under challenge in the present proceeding.

28. Adverting to the facts of the present case, particularly, impugned notice dated 28.05.2011, it is evidently clear that it was not a notice or an action under Section 102 Cr.P.C.. There was no prima facie satisfaction recorded by the Superintendent of Police about commission of any offence and the linkage of money deposited in the two bank accounts with the alleged offence. In fact, the second notice dated 20.09.2011 makes the position clear that till Page No.# 7/9

that point of time, action was not taken under Section 102 Cr.PC. In other words, freezing of the bank accounts or seizure of the bank accounts was de hors invocation of Section 102 Cr.P.C. If this is the position, then such freezing of bank accounts cannot be legally sustained.

30. Consequently, impugned notice dated 28.05.2011 is set aside and quashed. Respondent No. 4 shall now permit the petitioners to operate the two bank accounts but at the same time ensure that at least 25% of the deposited amount as on date remains in the two accounts for a period of one year from today".

10. The aforesaid writ petition related to the accounts maintained by the petitioner Company for the Axis Bank of Cooch Behar and Jalpaiguri Branch. In the aforesaid writ proceeding, the State Bank of India was not made a party and accordingly this Court did not interfere with the freezing of the accounts maintained by the Company in the State Bank of India. The freezing of accounts in the State Bank of India was also done on the basis of the similar communication dated 28.05.2011 of the Superintendent of Police, Barpeta that was challenged in the aforesaid writ petition.

11. As the State Bank of India was not made a party in the earlier writ proceeding, the present writ petition has been filed with a prayer to set aside the communication dated 28.05.2011 issued by the Superintendent of Police, Barpeta with a further prayer to allow the petitioner to operate the bank Account Nos. 30563436805 and 30557143055 maintained in the State Bank of India, Tollygunge Circular Road Branch, Kolkata and the operation of the Account No.31783370730 maintained in State Bank of India, Siriti Muchipara Branch, Kolkata.

12. On perusal of the order dated 01.10.2018 passed by this Court in Page No.# 8/9

WP(C)/118/2012, it is apparent that the action of the Superintendent of Police, Barpeta by issuing the communication dated 28.05.2011 has already been interfered holding that It was not a notice or an action under Section 102 Cr.PC. It was further held by the learned Judge that the freezing of the bank accounts or seizure of the bank accounts was de hors invocation of Section 102 Cr.PC. This Court is in total agreement with the aforesaid finding. Therefore, this Court is of the considered opinion that the order dated 01.10.2018 passed in WP(C)/118/2012 shall squarely covere the present writ petition also.

13. The learned State Counsel has fairly submitted that the said judgment shall also cover the present writ petition. The bank by way of filing affidavit-in- opposition admitted that the accounts were freezed by virtue of the communication dated 28.05.2011. The bank has not objected to defreezing the accounts in question in its affidavit-in-opposition.

14. The fact remains that though the petitioner challenged the freezing of all the bank accounts in the earlier writ proceeding as well as communication of the Superintendent of Police, Barpeta, dated 28.05.2011, the State Bank of India was not made a party in the said proceeding. Accordingly, this Court while deciding the issue, though set aside and quashed the decision of the Superintendent of Police, Barpeta to freeze the accounts by way of the communication, dated 28.05.2011, there was no direction to defreeze the accounts maintained in the State Bank of India by the petitioner Company inasmuch as such order could not have been passed as the State Bank of India was not made a party in the said writ proceeding.

15. In the peculiar facts and circumstance and in view of the determination made in WP(C)/118/2012, this Court is of the considered opinion that equity Page No.# 9/9

demands that the Account Nos. 30563436805 and 30557143055 maintained in the State Bank of India, Tollygunge Circular Road Branch, Kolkata and the Account No.31783370730 maintained in State Bank of India, Siriti Muchipara Branch, Kolkata by the petitioner company is directed to be defreezed as the freezing of Bank accounts by the Superintendent of Police, Barpeta in the process of investigation arising out of Barpeta Road P.S. Case No. 136/2011 registered under Sections 406/420 IPC had held to be bad by this Court.

16. In that view of the matter, this writ petition is allowed in terms of the order dated 01.10.2018 passed in WP(C)/118/2012 directing the State Bank of India, to allow to permit the petitioner to operate the three bank accounts i.e. Account Nos. 30563436805 and 30557143055 maintained in the State Bank of India, Tollygunge Circular Road Branch, Kolkata and the Account No.31783370730 maintained in State Bank of India, Siriti Muchipara Branch, Kolkata but at the same time, it is directed to the respondent Bank to ensure that at least 25% of the deposited amount as on date remains in the three accounts for a period of one year from today.

17. In the aforesaid terms, this writ petition is allowed. However, no order as to cost.

JUDGE

Comparing Assistant