Anita Aggarwal vs State Of H.P
2023 Latest Caselaw 2012 HP

     IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                           Cr. Revision No. 200 of 2022




                                                                                          .
                                                            Date of decision: 9.3.2023





    Anita Aggarwal.                                                                      ...Petitioner.





                                                  Versus

    State of H.P.                                                                        ...Respondent.

    Coram




    The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
    Whether approved for reporting?1 Yes

    For the Petitioner.                      Mr.Rajeev Chauhan                     and     Ms.Menka           Raj

                                             Chauhan, Advocates.

    For the Respondent:                      Mr.Hemant              Vaid,        Additional          Advocate
                                             General.



                                             ASI Sandeep Negi, I.O.                         Police      Station
                                             Kasauli, present in person.




                        Vivek Singh Thakur, Judge (Oral)

Petitioner has approached this Court against dismissal of

her application, filed before the Magistrate, for release/de-freezing her

Saving Bank Accounts bearing No. 39816286371 of State Bank of

India and 10610100004166 of Bank of Baroda in Branches at Kasauli,

vide impugned order dated 21.2.2022 passed by Additional Chief

Judicial Magistrate, Kasauli.

2. According to status report filed by Station House Officer,

Police Station Kasauli, District Solan, H.P., FIR No. 20 of 2020, dated

13.4.2020 was registered under Section 420 of the Indian Penal Code

in Police Station Kasauli, on the basis of complaint filed by complainant

Vartika Mehta against the petitioner, wherein it was alleged that since

about last 5 years petitioner Anita Aggarwal had been contacting

Whether the reporters of the local papers may be allowed to see the Judgment? Yes

Vartika Mehta complainant and she persuaded and impressed the

complainant to invest by depositing amount with Adarsh Cooperative

Society, with assurance that she (Anita Aggarwal) was an authorized

.

agent for Kasauli for the said Society and there was no need to worry

about the money, but lateron, on the date of maturity of invested

amount, on contacting by the complainant, Anita Aggarwal started

avoiding her. Thereafter, complainant came to know from other

residents of the town that Anita Aggarwal had cheated so many

persons in the like manner and had not refunded any amount of the

investors/depositors.

3. It was further alleged in the complaint that petitioner Anita

Aggarwal had contacted complainant Vartika Mehta for opening

account of RD etc. in the Post Office also, as she was also authorized

agent of the Post Office, but lateron complainant came to know that

Anita Aggarwal had cheated her either by depositing lesser amount or

by not opening the account or by opening the account for lesser

amount. As per complainant, as and when Anita Aggarwal was

contacted for repayment of amount, she started misbehaving and

abusing.

4. After registration of aforesaid FIR, investigation was

carried on. As per status report, inquiry was conducted about the

deposit of amount, which was received by Anita Aggarwal from various

persons. For that purpose, correspondence took place between Police

and Yash Mehta, Area Manager of Adarsh Cooperative Society, Solan.

In response Yash Mehta sent record of the Society through e-mail

regarding deposit by petitioner Anita Aggarwal in the account of Vartika

and other account numbers. Inquiry and verification was conducted by

the Police from the Post Office, wherein record of deposit of amount by

Anita Aggarwal in the account of Vartika, was also traced.

5. As per status report, Anita Aggarwal received certain

.

amount from Vartika Mehta for deposit in the Post Office, but deposited

the same with Adarsh Cooperative Society. In this regard, it has been

alleged by the complainant that Anita Aggarwal had done so at her

own without informing the depositor of the amount.

6. As per investigation, Anita Aggarwal has been found a

registered agent of Credit Cooperative Society, who had received

money from the villagers for deposit in Adarsh Cooperative Society.

7. As per status report, amount of Vartika Mehta has been

found deposited in the account of Adarsh Credit Cooperative Society.

Further that, after closure of Society, agent Anita Aggarwal could not

ensure entries of payment of amount since December to March, 2020

and she had offered repayment of the said amount to Vartika Mehta,

but Vartika Mehta was asking for payment of entire amount in one go.

Deposit of amount in the Post Office was also verified by the

Investigating Agency by obtaining record from the Post Office.

8. During investigation, on the basis of communication sent

by the Investigating Officer/SHO concerned, above mentioned account

numbers of petitioner Anita Aggarwal were ordered to be

seized/freezed.

9. Petitioner had approached the Trial Court under Section

457 Cr.P.C. for release/de-freezing of account numbers of the

petitioner referred supra. The said application was dismissed by the

Magistrate on the ground that investigation was pending, but with

direction to expedite the investigation and to submit final report at the

earliest.

10. It has also been submitted by respondent-Investigating

.

Agency that investigation was complete and as per conclusion of

investigation, for the facts and circumstances of the case, no offence

was found to be committed by the petitioner and, therefore,

cancellation report was prepared and submitted to Law Officer for

vetting and verification, which was returned by the Law Officer with

certain comments and as per Investigating Agency steps for removing

objections raised by the Law Officer are in progress and investigation

is yet to be completed, wherein no person linked with Adarsh

Cooperative Society could be examined despite making all efforts and

visiting some places in Rajasthan.

11. It has been stated in the status report that now office of

Adarsh Credit Cooperative Society at Solan has been closed and

Society is under liquidation and, therefore, investigation could not be

completed till date.

12. Learned counsel for the petitioner to substantiate the claim

of the petitioner for release of accounts has placed reliance upon the

judgments of Uttrakhand High Court in Puran Chand Pal Vs. Punjab

National Bank, 2017 Cri. L.J. 4252; Delhi High Court in Muktaben M

Mashru Vs. State of NCT of Delhi and another, 265 (2019) DLT 651;

Madras High Court in TMT. T Subbulakshmi Vs. T. Yamini, 2016 Cri.

L.J. 2861; and Karnataka High Court in Smt. Lathifa Abubakkar Vs.

The State of Karnataka & others, 2012 Cri. L.J. 3487.

13. As held by the Supreme Court in State of Maharashtra V.

Tapas D. Neogy, (1999) 7 SCC 685 that bank account of an accused

or any of his relation is property within the meaning of Section 102 of

the Code of Criminal Procedure and Police Officer in course of

investigation, can seize or prohibit operation of the said account, if

.

such assets have direct link with the commission of offence which the

Police Officer is investigating into.

14. Section 102 of the Code of Criminal Procedure

empowering the Police Officer to seize property 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.

(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, or where there is difficulty in securing proper accommodation for the custody of

such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation, 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.

Provided that where the property seized under Sub- Section (1) is subject to speedy and natural decay and if the person entitled to the possession of such property is unknown or absent and the value of such property is less than five hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police and the provisions of sections 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale."

15. Section 102 of the Code of Criminal Procedure empowers

the Police Officer to seize certain property on existence of certain

condition which is pre-requisite, empowering the Police Officer to seize

.

such property. He can seize any property, but the said property should

have been the property which may be alleged or suspected to have

been stolen or which may be found under circumstances which create

suspicion of commission of any offence.

16. In present case, it is version of the Investigating Agency

that Anita Aggarwal received money from Vartika Mehta and deposited

the same in Adarsh Credit Cooperative Society, though some of those

deposits were directed to be deposited in the Post Office and status

report filed by the Investigating Agency nowhere reveals or alleges that

the bank accounts of Anita Aggarwal contains property received from

Vartika Mehta complainant or relevant accounts were used for

transaction at the time of commission of alleged offence of cheating so

as to create suspicion of commission of offence through these bank

accounts. Admittedly, it is not a case that the property, i.e. Bank

Accounts of Anita Aggarwal, is suspected for depositing/withdrawing or

operating or transacting the stolen property. Therefore, in present

case, necessary ingredient, empowering the Investigating Officer to

seize the Bank Accounts of petitioner are missing and thus

seizure/freezing of Bank Accounts of the petitioner is not sustainable.

17. Undisputedly, investigation is still stated to be pending.

FIR was lodged in the year 2020. We are in 2023. No doubt, as

observed by the Magistrate, there was Covid-19 period, during which

everything was halted, but now more than sufficient time has passed

after the period of Covid-19, but till date conclusion of investigation has

not been finalized.

18. It is also noticeable that Instigating Agency had concluded

.

its investigation at one point of time and found that no offence was

committed by the petitioner and, therefore, cancellation report was

submitted to the Law Officer, but thereafter Law Officer raised certain

objections and the report alongwith record was returned to the

Investigating Agency, but till date investigation has no progress, even

for an inch. It is case of Investigating Agency that persons belonging

to Rajasthan are involved in the matter and, therefore, they cannot be

joined/associated or interrogated during investigation despite making

efforts and now all out efforts are being made to complete the

investigation.

19. In the aforesaid circumstances, I find that in present case,

neither ingredients of Section 102 Cr.P.C. are existing to empower the

Police Officer to seize the bank accounts of the petitioner nor any

nexus or link has been pointed out, much less established, by the

Investigating Agency between the offence allegedly, as per

complainant, committed by the petitioner and operation of bank

accounts concerned. There is inordinate delay in concluding the

investigation and there is no plausible or valid reason to continue the

seizure/freezing of the bank accounts of the petitioner as there is

nothing to point out that how de-freezing of the account shall come in

the way of Investigating Agency in investigating and concluding the

investigation in the FIR concerned. Commission of any offence or

leveling allegations of commission of offence is not sufficient to freeze

the accounts of a person except as permissible under law and

pendency of investigation, that too for the last three years, is also not

permissible under law for infinite period, particularly when the property

is neither a suspected stolen property nor there is any nexus between

.

the property, i.e. Bank accounts and the commission of alleged offence

by the accused.

20. With the aforesaid discussion, I find that at this stage

petitioner is entitled for de-freezing of her accounts mentioned supra

and to operate them in accordance with law and, therefore, these

accounts are ordered to be released/de-freezed, but subject to

furnishing personal bond for an amount lying deposited in the bank

accounts at the time of freezing of these bank accounts by giving

undertaking therein to produce the said amount in the Court or

anywhere else, wherever directed by the Court during trial or on

conclusion of trial. The bond shall be executed to the satisfaction of

Trial Court having the jurisdiction over Police Station, Kasauli or to the

satisfaction of Magistrate available at Kasauli at the time of furnishing

the bond. In case petitioner furnishes the bonds, as directed supra,

concerned Magistrate shall pass an appropriate order immediately

thereafter but after accepting the personal bond to his/her satisfaction,

release/de-freeze the Bank accounts of the petitioner referred supra.

With the aforesaid observations, petition is allowed and

disposed of in aforesaid terms, alongwith pending application(s), if any.

                                                  (Vivek Singh Thakur),
     th
    9 March, 2023                                        Judge.
          (Keshav)