Kerala High Court
Sekar Garments (Gstin ... vs State Of Kerala on 14 August, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
MONDAY, THE 14TH DAY OF AUGUST 2023 / 23RD SRAVANA, 1945
WP(CRL.) NO. 732 OF 2023
FIR 30/2023 OF CHIEF JUDL.MAGISTRATE, ERNAKULAM
PETITIONER :
SEKAR GARMENTS (GSTIN 33FMJPB2357F1ZC)
OLD NO.28, (NEW NO.14), GENERAL MUTHIAH STREET,
SOWCARPET, ARIYALUR, TAMIL NADU STATE,
PIN- 600 079, REPRESENTED BY ITS PROPRIETOR
MR. B. GNANASEKAR, AGED 35 YEARS, NO.46,
MILK DIPPO, BASIN BRIDGE ROAD, WASHERMENPET,
CHENNAI, PIN - 600 079
BY ADVS.
SHIBIN K.F.
SEBY JOSEPH
RESPONDENTS :
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT,
GOVERNMENT OF KERALA, ROOM NO. 376, MAIN BLOCK,
THE SECRETARIATE, THIRUVANANTHAPURAM,
KERALA STATE, PIN - 695 001
2 THE INSPECTOR OF POLICE,
THE CYBER CRIME POLICE STATION, ERNAKULAM RURAL,
SUB-JAIL ROAD, NEAR ALUVA POLICE STATION,
ALUVA, ERNAKULAM DISTRICT, KERALA STATE,
PIN - 683 101
3 THE HDFC BANK LTD.,
RAMON HOUSE, 169, BACKBAY RECLAMATION,
H T PAREKH MARG, CHURCHGATE, MUMBAI,
MAHARASHTRA. REPRESENTED BY ITS AUTHORISED OFFICER,
PIN - 400 020
WP(CRL.) NO. 732 OF 2023
2
4 MR. DANIEL PAUL,
AGED 25 YEARS,
SANDEEPAM HOUSE, HOUSE NO. 69,
CONVENT ROAD 2, THOTTAKKATTUKARA,
ALUVA VILLAGE, ERNAKULAM DISTRICT,
KERALA STATE, PIN - 683 108
BY SRI.NOUSHAD K.A., PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 14.08.2023, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WP(CRL.) NO. 732 OF 2023
3
BECHU KURIAN THOMAS, J.
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W.P.(Crl.) 732 of 2023
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Dated this the 14th day of August, 2023
JUDGMENT
Petitioner seeks for the following reliefs :-
A. To issue the Writ of Mandamus, any other appropriate Writ
and/ or Order declaring that the freezing/ blocking of Bank Account
No.50200068386033 of the petitioner firm maintained with the 3 rd
respondent's Broadway Parrys Corner Branch, No.154 Prakasam Salai,
Broadway, Chennai, Tamil Nadu State by the 2 nd respondent is illegal
and arbitrary and
B. To issue any appropriate Writ, Order and/ or Direction
directing the 2nd and 3rd respondent(s) to defreeze/ unblock the Bank
Account No.50200068386033 of the petitioner firm maintained with
the 3rd respondent's Broadway Parrys Corner Branch, No.154 Prakasam
Salai, Broadway, Chennai, Tamil Nadu State within a time to be fixed
by this Court.
2. Petitioner is a proprietary concern allegedly conducting business
in buying and selling of garments on wholesale and retail basis. It
maintains a bank account with the HDFC Bank at Broadway Parrys Corner,
Chennai bearing Account No.50200068386033. Recently petitioner was
informed from the Bank that its account mentioned above, has been
frozen under the directions of the 2 nd respondent. Due to the said
freezing of its bank account, the entire business has come to a grinding
halt.
WP(CRL.) NO. 732 OF 2023
3. Petitioner further alleged that on enquiry it was understood that
an FIR was registered by the Cyber Crime Police Station, Ernakulam as
Crime No.30 of 2023 at the instance of the 4 th respondent for the offence
of cheating the complainant alleged that an unknown accused
impersonated and promised to repay large amount of money, if minor
amounts are credited into certain accounts. Believing those directions,
amounts were credited into various accounts. Two of the accounts were
that of the petitioner's into which on 04.01.2023 and on 05.01.2023,
amounts were credited and thus the defacto complainant was cheated.
4. Sri.Shibin K.F., the learned counsel for the petitioner submitted
that for a small quantum of money that came into petitioner's account,
the 2nd respondent has frozen the entire bank account of the petitioner
wherein several transactions are taking place on a day to day basis in
relation to the petitioner's business. It was also pointed out that
petitioner has a licence to import and export garments and the said
business has also come to a grinding halt due to the freezing order. The
learned counsel further submitted that even though petitioner has no
involvement in the alleged crime, he had still offered to the 2 nd
respondent to keep aside the amount which was allegedly the subject
matter of the crime either in a separate account or into any account of
the choice of the Investigating Officer. However he did not heed to such
request and has continued to keep the accounts of the petitioner frozen,
compelling the petitioner to approach this Court.
WP(CRL.) NO. 732 OF 2023
5. Sri.Noushad K.A., the learned Public Prosecutor has filed a
memo producing the FI statement wherein specific allegations have been
made regarding two transactions of 3,96,000/- and Rs.3,52,000/- paid
into the account of Sekar Garments with the IFC number and the bank
account number. It was submitted that the investigation suspects the
involvement of the petitioner also, in the crime and it is in such
circumstances that the bank account has been directed to be frozen.
6. The learned Public Prosecutor relied upon the decisions in State
of Maharashtra v. Tapas D. Neogy [(1999) 7 SCC 685] and also the
decision in Teesta Atul Setalvad and Others v. State of Gujarat and
Others [(2018) 2 SCC 372] and contended that police has a power to
freeze the bank accounts in appropriate cases. The learned Public
Prosecutor also informed that notice under Section 41A Cr.P.C. was issued
to the petitioner and that he had failed to turn up, pursuant to the said
notice and that when the Investigating Officer approached the petitioner's
address, it was found that there was no such addressee, thereby creating
suspicion of petitioner's involvement in the crime.
7. Considering the nature of order being issued, notice to 3 rd and
4th respondents are dispensed with.
8. A perusal of the FIR as well as the FI Statement reveals that two
transactions mentioned in the FI Statement indicate that an amount of
Rs.7,48,000/- was credited into the account of the petitioner based upon
a WhatsApp chat. The petitioner has tried to justify the receipt of the
WP(CRL.) NO. 732 OF 2023
amount as due from a customer who purchased goods from him as per
Ext.P10 and Ext.P11 invoices. Whether the said amount credited into
petitioner's account is a subject matter of the crime involved in FIR No.30
of 2023 of Cyber Crime Police Station or not is a matter which will have to
be investigated. Further, whether the petitioner himself is involved in the
crime is also to be investigated. However, for the amount of
Rs.7,48,000/- allegedly credited into the account of the petitioner, his
entire bank account ought not to be frozen, crippling the business, if any,
being conducted by the petitioner. Such a procedure to freeze the entire
bank account for a particular quantum of sum, is excessive and is too
onerous a procedure which would fall foul of Article 14 of the Constitution
of India. Every procedure contemplated under the provisions of Code of
Criminal Procedure, 1973 must satisfy Part III of the Constitution of India
and therefore any arbitrary action will fall foul of the Constitution.
8. Considering the above circumstances, it is ordered that freezing
of the entire bank account of the petitioner is excessive and that it should
be confined only to Rs.7,48,000/- alone. Petitioner is therefore be given
the liberty to operate his bank account in excess of Rs.7,48,000/- and the
freezing shall be confined to the aforesaid amount.
9. As the petitioner claims to be involved in a business where day to
day operations are essential, an option is given to the petitioner to keep
apart an amount of Rs.7,48,000/- in a separate account with the HDFC
Bank, Broadway Parrys Corner Branch itself and the said amount shall be
WP(CRL.) NO. 732 OF 2023
under a lien into Crime No.30 of 2023. If such an account is started and
the amounts are kept aside, that amount can be operated only after
getting instructions from the 2nd respondent and the freezing of account
will be confined only to that account. It is also clarified that, if in case
during the course of investigation, the 2 nd respondent is satisfied that
further amounts are involved in the commission of crime and the
petitioner has any involvement, he will be free to initiate appropriate
steps including to proceed against the bank account of the petitioner.
The writ petition is allowed to the above extent.
Sd/-
BECHU KURIAN THOMAS, JUDGE
RKM
WP(CRL.) NO. 732 OF 2023
APPENDIX OF WP(CRL.) 732/2023
PETITIONER'S EXHIBITS :
Exhibit-P1 A TRUE COPY OF THE FIR DATED 02-05-2023
ON THE FILES OF THE CYBER CRIME POLICE
STATION, ERNAKULAM RURAL
Exhibit-P2 A TRUE COPY OF PETITIONER FIRM'S GST
REGISTRATION CERTIFICATE ISSUED BY THE
GOVERNMENT OF INDIA DATED 25-01-2021
Exhibit-P3 A TRUE COPY OF GST RETURN STATEMENT IN
FORM GSTR-3B DATED 05-03-2021
Exhibit-P4 A TRUE COPY OF GST RETURN STATEMENT IN
FORM GSTR-3B DATED 19-07-2023
Exhibit-P5 A TRUE COPY OF THE FORM GSTR-1 STATEMENT
DATED 19-07-2023
Exhibit-P6 A TRUE COPY OF PETITIONER FIRM'S
IMPORTER-EXPORTER CODE ISSUED BY THE
GOVERNMENT OF INDIA DATED 23-01-2021
Exhibit-P7 A TRUE COPY OF THE PERMANENT ACCOUNT
NUMBER OF THE PROPRIETOR OF THE PETITIONER
FIRM DATED NIL
Exhibit-P8 A TRUE COPY OF THE AADHAAR OF THE
PROPRIETOR OF THE PETITIONER FIRM DATED
20-12-2015
Exhibit-P9 A TRUE COPY OF THE STATEMENT OF BANK
ACCOUNT NO. 50200068386033 OF THE
PETITIONER FIRM MAINTAINED WITH THE HDFC
BANK LTD. BROADWAY PARRYS CORNER CHENNAI
BRANCH DATED 05-03-2023
Exhibit-P10 A TRUE COPY OF THE GST INVOICE, BEARING
NO. SE/2023/105, ISSUED BY THE FIRM TO
MR. NAJEEB DATED 05-01-2023
Exhibit -P11 A TRUE COPY OF THE GST INVOICE, BEARING
NO. SE/2023/107, ISSUED BY THE FIRM TO
MR. NAJEEB DATED 05-01-2023
