Kerala High Court

Abhishek George Mathew vs Union Of India on 19 October, 2023

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
               THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN


         Thursday, the 19th day of October 2023 / 27th Aswina, 1945


                          WP(C) NO. 24722 OF 2023

PETITIONER:

     ABHISHEK GEORGE MATHEW, AGED 37 YEARS, S/O MATHEW GEORGE, 3A, LINK
     HORIZON, MARINE DRIVE, ERNAKULAM HIGH COURT P.O., ERNAKULAM, PIN -
     682031.

RESPONDENTs:

  1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME
     AFFAIRS, NORTH BLOCK, NEW DELHI, PIN - 110001
  2. FOREIGNERS REGIONAL REGISTRATION OFFICER, OFFICE OF FOREIGNERS
     REGIONAL REGISTRATION OFFICE, AIRLINES BUILDING, CIAL NEDUMBASSERY,
     COCHIN AIRPORT P.O., KOCHI, PIN - 683111.
  3. ASSISTANT DIRECTOR/PORT REGISTRATION OFFICER, OFFICE OF FOREIGNERS
     REGIONAL REGISTRATION OFFICE, AIRLINES BUILDING, CIAL NEDUMBASSERY,
     COCHIN AIRPORT P.O., KOCHI,PIN - 683111.
  4. JOINT DIRECTOR, DIRECTORATE OF ENFORCEMENT, KOCHI ZONAL OFFICE,
     KANOOS CASTLE, MULLASSERY CANAL ROAD, ERNAKULAM P.O., ERNAKULAM, PIN
     - 682011.
  5. ASSISTANT DIRECTOR, DIRECTORATE OF ENFORCEMENT, KOCHI ZONAL OFFICE,
     KANOOS CASTLE, MULLASSERY CANAL ROAD, ERNAKULAM P.O., ERNAKULAM, PIN
     - 682011.


     Writ Petition (Civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to direct respondents to suspend the Look Out Circular issued
against the Petitioner and to permit the Petitioner to travel abroad,
pending disposal of the above Writ Petition.

     This petition again coming on for orders upon perusing the petition
and the affidavit filed in support of WP(C) and this Court's order dated
18-10-2023 and upon hearing the arguments of SRI. ROSHIN IPE JOSEPH,
Advocate for the petitioner and SRI.JAISHANKAR V.NAIR, Advocate for R4 &
R5, the court passed the following:
             MURALI PURUSHOTHAMAN, J.
       ---------------------------------------------
              W.P.(C) No.24722 of 2023
     -------------------------------------------------
        Dated this the 19th day of October, 2023


                       ORDER

The petitioner, a Non Resident Indian, has filed this

writ petition challenging the Look Out Circular (LOC) No.

SIC DY No. 44380 dated 28.12.2022 and 2023 issued in

his name by the Foreigners Regional Registration Officer

(FRRO), the 2nd respondent, at the request of the

Directorate of Enforcement, Cochin Zonal Office.

2. From the averments in the writ petition as

well as in the counter affidavit filed on behalf of

respondents 4 and 5, it is seen that the Investigating

Officer, Directorate of Enforcement, Cochin Zonal Office

issued summons to the petitioner who is ordinarily

residing in Dubai, requiring his attendance in connection

with the investigation under the Foreign Exchange W.P.(C) No.24722 of 2023

Management Act 1999 (FEMA). Since the petitioner

failed to respond to the summonses issued by the 5th

respondent, at the request of the Directorate of

Enforcement, the FRRO issued the LOC referred to

above. On arrival to India on 14.7.2023, the petitioner

appeared before the investigating officer. When the

petitioner attempted to leave the country on 25.7.2023,

he was intercepted at the Cochin International Airport

by the immigration authorities and the petitioner could

not leave India. It was at this juncture, the petitioner

has filed this writ petition.

3. A statement has been filed on behalf of the

2nd respondent stating that the LOC has been issued at

the request of the Directorate of Enforcement.

4. A counter affidavit dated 09.08.2023 has been

filed by respondents 4 and 5 stating that the attendance

of the petitioner is required in connection with an

investigation going on pursuant to an intelligence report

against the petitioner's father, the petitioner and his W.P.(C) No.24722 of 2023

brother and that it is during the course of investigation,

summons was issued to the petitioner and since the

petitioner did not respond to the summonses, LOC was

issued. It is further stated that, even though the

petitioner appeared before the investigating officer after

his visit to India, he did not co-operate with the

investigation. When the petitioner attempted to leave

the country on 25.7.2023, the immigration officer

intercepted him at Cochin International Airport. It is

further stated that the said respondents have initiated

the investigation and only summons has been issued

and no action has been taken against the petitioner.

However, the petitioner has been continuously staying

away from the summons and is trying to evade the

appearance and further proceedings by fleeing from the

country. It is also stated that if he is allowed to leave

the country during the ongoing investigation, he will

never co-operate with investigation, and will frustrate

the efforts taken by respondents 4 and 5. W.P.(C) No.24722 of 2023

5. The petitioner has filed an affidavit wherein it

is stated that the petitioner is at the risk of loosing his

job at Dubai since he has been in India from 25.7.2023

and is separated from his wife and small children living

in Dubai and he wants to join them.

6. On 5.9.2023, this Court passed an order as

follows:-

"It is submitted by the learned Standing Counsel for respondents 4 and 5 that the petitioner can appear before the 5th respondent on 14.09.2023 and 15.09.2023 for recording his statement. Once the statement of the petitioner is recorded, the competent authority shall consider withdrawing LOC and permitting the petitioner to go abroad."

7. Pursuant to the said order, the petitioner

appeared before the investigating officer on 14.9.2023

and on that date, he was asked to appear again on

29.9.2023. The petitioner filed I.A. No.7 of 2023 stating

that though he appeared on 29.9.2023, no statement

was taken from him.

W.P.(C) No.24722 of 2023

8. The petitioner thereafter filed I.A. No.8/2023

and in the accompanying affidavit dated 7.10.2023, it is

stated that he appeared before the 5th respondent on

6.10.2023 and that it was recorded by the 5 th

respondent in the statement that the petitioner shall

appear before the 5th respondent as and when required

in future.

9. Accordingly, on 11.10.2023, this Court

directed the Standing Counsel to place on record a

statement with regard to all proceedings pursuant to the

order dated 5.9.2023. The said order reads as follows:-

"The learned Standing Counsel for respondents 4 and 5 to place on record a statement with regard to all proceedings pursuant to the order of this Court dated 05.09.2023.

2. Respondents 4 and 5 shall also state as to whether the presence of the petitioner is required further for taking statement and if the petitioner is permitted to go abroad, how his presence can be ensured as and when required.

Post on 16.10.2023."

10. Pursuant to the said direction, an additional W.P.(C) No.24722 of 2023

counter affidavit dated 13.10.2023 was filed on behalf

of respondents 4 and 5. Paragraphs 3 to 15 of the

additional counter affidavit read as follows:-

"3. It is submitted that pursuant to the directions of this Hon'ble Court on 05.09.2023, a summons was issued to the Petitioner on 12.09.2023. The Petitioner herein appeared before the investigating officer on 14.09.2023 and the statement of the Petitioner was recorded. The Petitioner however refused to cooperate with the investigation and gave vague and false replies to the questions put forth by the investigating officer.

4. The Petitioner thereafter sought time for appearance on 29.09.2023 with the requisite documents. The Petitioner was required to appear on 29.09.2023.

5. It is submitted that the petitioner again gave a statement on 6.10.2023. On the said date, the petitioner again was not co-operating with the questioning and gave wrong information as well. He was stonewalling the questions put forth to him. The petitioner also informed that he had transferred his shares to the Company and refused to give the statements relating to his accounts. He even stated that the off shore accounts in his name were not operated by him W.P.(C) No.24722 of 2023

and his father holds major shares.

6. It is submitted that, the Petitioner never co operated with the investigation as initially he never appeared before the investigating officer in spite of issuance of multiple Summons to him. The Petitioner visited India on 22.08.2022, 06.09.2022 & 22.03.2023 after the issue of said Summons. However, he never approached the office of answering respondent. Due to his non-cooperating attitude, the answering respondent could not proceed with the investigation and hence a Look Out Circular (LOC) was requested to be issued in the name of the Petitioner.

7. It is submitted that the Immigration Department., Kochi intimated the answering respondent about the arrival of the Petitioner on 14.07.2023. It is only after the issuance of the LOC, the Petitioner started appearing before the authority.

8. It is submitted that the Petitioner was required to appear before the authorities to depose on oath the true facts in his knowledge and produce the documents in his possession. However, the Petitioner is not disclosing the details and infact even according to his statement, during the period of investigation he transferred his shares into the name of his father. He even tried to flee the Country without informing the answering respondent on the midnight of 24.07.2023. However due to interception by W.P.(C) No.24722 of 2023

Immigration Officer at Cochin Airport, he could not leave the Country.

9. The Petitioner has a history of continuously staying away from the Summon and is trying to evade the appearance and further proceedings by fleeing from the country.

10. The Directorate has collected evidence which show that the Petitioner has been lying in his statements made before the investigating officer. The Directorate of Enforcement has also requested to the UAE government to cross check the veracity of the statements and any other bank account which is not being disclosed by the petitioner and the inputs are still awaited.

11. It. is submitted that if the Petitioner is allowed to leave the Country at this stage, the Petitioner will never return for further investigation and will frustrate efforts taken by answering respondent to unearth the serious offence will go in vain.

12. It is submitted that the on going investigation against the petitioner is grave in nature and the petitioner is a part of a huge financial scam which has wider ramifications.

13. It is submitted that in a catena of judgments, the Hon'ble High Courts in different states have refused to interfere with the Look Out Circulars and in certain cases W.P.(C) No.24722 of 2023

the Madras and Delhi High Courts have imposed stringent conditions for permitting accused to travel abroad for short visits. The Petitioner cannot claim the benefit of those conditions as the Petitioner is an NRI who can stay abroad for years without returning to India.

14. It is respectfully submitted that the other allegations made under this Writ and IA are baseless and with malafide intentions and to evade the process of the law.

15. In view of the facts of the case narrated m foregoing paras, it is respectfully submitted that considering the seriousness of the issues contained in the investigation matter and the non-co-operative attitude of the Petitioner throughout the investigation process, if he is allowed to leave the Country during the ongoing investigation, he will never co-operate with the investigation."

11. When the writ petition came up for

consideration on 18.10.2023, Sri. Roshin Ipe Joseph,

the learned counsel for the petitioner submitted that the

petitioner will file an affidavit before this Court

undertaking to appear before the investigating officer as

and when required and shall furnish the details of his W.P.(C) No.24722 of 2023

immovable properties in India against which

respondents can take coercive steps to secure his

presence. The order dated 18.10.2023 is extracted

hereunder:-

"The learned counsel for the petitioner submits that the petitioner will file an affidavit before this Court undertaking to appear before the Investigating Officer as and when required and furnishing the details of his immovable properties in India against which the respondents can take coercive steps to secure his presence.

Post on 19.10.2023 at 01.45. p.m."

12. Accordingly, an affidavit dated 18.10.2023

was filed by the petitioner along with I.A. No.10/2023.

The relevant portion of the affidavit reads as follows:-

"1. I am the Petitioner in this case. I am aware of the facts of this case and am competent to swear to this affidavit.

2. On 18-10-2023 when this writ petition was taken up, during the course of arguments, Petitioner was directed by this Hon'ble Court to submit an affidavit undertaking to return to India and present himself before the Investigating Officer of the Enforcement W.P.(C) No.24722 of 2023

Directorate as and when required. Further I was also directed to submit the details of my immovable properties in India in the very same affidavit against which the Directorate of Enforcement can proceed against in the event I do not appear before the Investigating Officer as undertaken in this affidavit.

3. I undertake that I shall appear before the Investigating Officer of the Directorate of Enforcement, as and when required upon being summoned.

4. I own 50% of the apartment bearing Corporation of Kochi Door No.40/1551 E and having the address as 4A, Link Horizon, Marine Drive, Ernakulam - 682031, which was purchased by me and my wife under Sale Deed bearing no.3696/2013 dated 9-9- 2013 of Sub Registry Office, Ernakulam. I own 50% of building bearing Corporation of Kochi Door No. 62/1976 D on the Second Floor marked as Office 2A Santhi Thottekkad Estate, Chittoor Road, Ernakulam

-682016, which I obtained vide. Gift Deed bearing no.804/2020 dated 2-3-2020 of Sub Registry Office, Ernakulam. I own 4 Acres 59.8 Cents of Rubber Estate in Mulloorkkara Village in Thalappilly Taluk in Thrissur District, which I obtained vide. Sale Deed dated 2-9-2006 bearing No. 661/2006 of Sub Registry Office, Chelakkara.

W.P.(C) No.24722 of 2023

5. In the event I do not appear before the Investigating Officer in accordance with my undertaking recorded in this affidavit, my aforesaid immovable properties may proceeded against to secure my presence in accordance with law.

6. I pray that this affidavit may be accepted on the files of this case. In case this affidavit is not accepted on the files of this case, irreparable loss and injury will be occasioned to me."

13. Today, on behalf of respondents 4 and 5, a 2nd

additional counter affidavit is placed on record.

Paragraphs 6 to 9 thereof read as follows:-

"6. It is submitted that the undertaking given by the petitioner to proceed against his properties may not be sufficient to ensure the presence of the petitioner in case if he does not respond to the summons issued by the investigating agency.

7. It is further submitted that the Foreign bank account statements of the companies situated outside India & owned by Shri George Mathew and Shri Abhishek Mathew are the crucial evidence to proceed further in FEMA Investigation to arrive at the violations under the said act and regulations made there under, if any. Hence it is prayed that the said W.P.(C) No.24722 of 2023

petitioner may be allowed to go abroad on the foremost condition that he submit all the bank statements for the following banks within 15 days from the date of arrival in UAE where he is staying. A separate undertaking may be taken from the Petitioner to this regards before the Hon'ble Court.

Sl.No. Account holder Bank Name Account No. 1 M&A Resources DBS Bank, Hong 788738072 Ltd.Hong Kong Kong.

2          Manda Fin Corp.Hong      DBS Bank, Hong              392354
                  Kong                   Kong
3               Wise Team           DBS Bank, Hong            126000175
             Internatinal Ltd.,          Kong
                Hong Kong.
4              VI Services &        DBS Bank, Hong              194150
            Solutions Ltd., Hong        Kong
                    Kong
5          VI Corporate Services    DBS Bank, Hong             1242171
            Ltd., Hong Kong LLP          Kong
6            Star Sight Trading    First Abudhabi Bank        S.1529E+ll
                Ltd., Dubai
7            Samag Resources       First Abudhabi Bank        1.2712E+15
               Ltd., Dubai
8            Star Sight General    First Abudhabi Bank        5.15283E+ll
            contracting LLC Abu
                   Dhabi
9             Mathew George          Dahsingh bank,          76138704781
                                       Hong Kong
10           Abhishek Mathew         Citi Bank, Sioux        42027747338
                                   Falls, South Dakota,
                                            USA
  W.P.(C) No.24722 of 2023



11        Abhishek Mathew             Citi bank, San        42027747346
                                   Antonio, Texas, USA
12        Abhishek Mathew            Emirates NBD          1015203205901
                                   Dubai, silicon Oasis,
                                      Dubai, UAE
13        Abhishek Mathew          ADCB Bank, Karama       10109038217001
                                         Dubai
14        Abhishek Mathew          FAB Bank, Jumeirah, 1271001808479000
                                         Dubai
15        Abhishek Mathew          FAB Bank, Jumeirah, 1271001808479000
                                         Dubai

8. Also the investments details made by Shri Mathew George and Abhishek George made on behalf of M/s. Mossack Fonseaca and M/ s. MF Treasurer Ltd. are required from the petitioner together with other bank accounts and the statements which are not disclosed so far before the Directorate of enforcement.

9. In the light of the above it is most humbly submitted that upon the securing the undertaking from the petitioner as above, in addition to his further submissions before the Hon'ble Court, it is most humbly prayed that the above writ petition may be dealt considering the facts stated in this affidavit and the earlier affidavits in the matter."

14. Sri. Jaishankar V. Nair, the learned Standing W.P.(C) No.24722 of 2023

Counsel for respondents 4 and 5, after referring to

paragraph 7 of the 2nd additional counter affidavit

submits that, apart from the undertaking given in the

affidavit dated 18.10.2023, the petitioner shall provide

the details of the bank statements referred to therein as

undertaken by him before the investigating officer, as

soon as the petitioner reaches Dubai.

15. The learned counsel for the petitioner submits

that, whatever documents on which he has access and

undertaken to be produced, will be forwarded to the

investigating officer within 15 days after the petitioner