Madras High Court
M/S. Tulsiyat Tek Pvt.Ltd vs State Of Tamil Nadu on 11 November, 2021
W.P.No.11815 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.11.2021
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.11815 of 2011
and
M.P.Nos.1 of 2011 and 1 of 2012
M/s. Tulsiyat Tek Pvt.Ltd.
2/13, Om Heera Panna Arcade,
Oshiwara, Near Oshiwara Police Station
Andheri West, Mumbai – 400 053
Represented by its Authorised representative ... Petitioner
Vs.
1.State of Tamil Nadu
Fort St. George,
Rep by the Secretary (Home)
Chennai – 600 009.
2.State
Rep. by the Inspector,
Crime Branch, Team-1,
Egmore, Chennai – 600 008.
3.ICICI Bank Ltd,
Andheri Link Road Branch,
Opp: Infinity Mall, Morya Estate,
Anderi (West), Mumbai and
Branch office at Egmore, Chennai. ... Respondents
1/20
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W.P.No.11815 of 2011
Prayer : Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Mandamus, forbearing the respondents from
interfering with the petitioners right to manage & administer its
affairs/property including its Bank Accounts and consequently, pass an
order to de-freeze the petitioner's Bank Account viz. 102805000271 in the
ICICI Bank Ltd. Egmore Branch, Chennai in the interests of justice.
For Petitioner : Mr.Bijesh Thomas
For R1 and R2 : Mr.C.Jayaprakash
Government Advocate
For R3 : Mr.P.Elayarajkumar
for M/s. Ramalingam and Associates
ORDER
The writ on hand has been instituted to forbear the respondents from
interfering with the petitioner's right to manage and administer its
affairs/property including its Bank Account and consequently, pass an order
to de-freeze the petitioner's Bank Account viz. 102805000271 in the ICICI
Bank Ltd. Egmore Branch, Chennai.
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2. The learned counsel for the petitioner strenuously contended that
the petitioner is a Private company and not connected with any of the
allegations. The affidavit filed by the writ petitioner in support of the
present writ petition, there is no details regarding the initiation of criminal
prosecution or otherwise.
3. The learned counsel for the petitioner reiterated that the Bank
Account of the petitioner is frozen without any basis and without following
the procedures and therefore, the writ petitioner is constrained to move the
present writ petition.
4. It is contended that the mandatory provisions of Section 102
Cr.P.C. has not been followed. It is further stated that the petitioner is not
arrayed as an accused in the criminal case registered by the second
respondent / Inspector of Police.
5. At the outset, the petitioner pleads innocence and ignorance of any
of the allegations set out in the criminal case and further, says that the
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W.P.No.11815 of 2011
account belongs to the petitioner is frozen by not following the procedures
as contemplated. It is further stated that the allegations in the F.I.R is also
not relatable to the business activities of the petitioner and further, even
presuming the allegations are taken as it is, it cannot be construed as an
offence against the petitioner. Thus, the writ petition is to be allowed.
6. The learned Government Advocate appearing on behalf of the
respondents 1 and 2 objected the contentions raised by the petitioners by
stating that a Criminal case was registered by the Central Crime Branch,
Chennai in Crime No.186 of 2011 for the offences under Section 420 & 406
I.P.C. The investigations are going on and at this point of time, the ground
raised by the petitioners cannot be considered. No doubt, the petitioner has
not been arrayed as an accused in the F.I.R. However, the investigation
officer will be in a position to form an opinion only after conducting a
thorough investigation. The allegation is relatable to cheat of public and
many persons have aggrieved, though the complaint is given by one person
in the present case. The paper advertisement collected, reveals that money
from public was being collected and swindled by some persons. Thus, a
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W.P.No.11815 of 2011
thorough investigation is required to cull out the truth behind the
allegations. Under these circumstances, the mere contention of the petitioner
that he is innocent of the allegations, cannot be considered by this Court and
all such pleadings are to be considered only after completion of
investigation by the competent authority. Thus, the writ petition is to be
rejected.
7. The third respondent / ICICI Bank filed a counter affidavit. The
third respondent also objected the contentions raised by the writ petitioner
by stating that the third respondent /Egmore Branch received a letter dated
08.04.2011 from the second respondent / Inspector of Police, Crime Branch,
Team – 1, Chennai, informing the Bank that the criminal case is registered
on their file in Crime No.186 of 2011 for the offence under Section 420 of
IPC and that the account No.102805000271 standing in the name of the
petitioner and also another account with a different number are involved in
the said criminal case. Hence, for the purpose of further investigation, the
second respondent requested the third respondent to freeze the said Account
Numbers with immediate effect till the investigation is completed. In
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W.P.No.11815 of 2011
compliance of the request of the request of the law enforcing authority, the
third respondent acted swiftly and freezed the current Account of the
petitioner and immediately informed the same to the petitioner.
8. Subsequently, the second respondent / investigating officer, in vide
letter dated 15.04.2011, sought for details of all the account numbers of the
petitioner. On receipt of the order dated 29.04.2011 passed by the Hon'ble
High Court by way of an interim direction to allow the petitioner to operate
the account, the third respondent had un-freezed the current account of the
petitioner, in compliance with the said interim order. The unfreezing of the
account was also communicated to the petitioner on 23.05.2011 and
acknowledged by the petitioner's staff with their seal.
9. It is contended that as per the criminal case registered by the
second respondent on receipt of public complaint, the account of the
petitioner was frozen and de-freezed subsequently pursuant to the orders
granted by this Court.
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W.P.No.11815 of 2011
10. Thereafter, the third respondent had received a letter dated
30.05.2011 from the office of the Deputy Director of Income Tax (INV),
requesting the third respondent, not to allow any money to be remitted from
the above said account without informing the Income Tax Department and
also served upon a summon on the official of the third respondent under
Section 131 of the Income Tax Department. The Income Tax Department
has stated in their letter that the Department is enquired the petitioner
company, which is based in Singapore and that the money collected by the
agent and franchise of the petitioner company from customers in India, have
been routed from the bank account of the petitioner, with Account Number
102805000271. Pursuant to the said action and in compliance of the
statutory authority namely the Income Tax Department, the third respondent
had again had no other go than to mark 'debit freeze' of the account of the
petitioner and the same was informed to the petitioner. The petitioner by
letter dated 08.06.2011 sought for the reason for debit freeze in their
account and the third respondent vide letter dated 15.06.2011 informed the
petitioner about the communication from the Income Tax Department.
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W.P.No.11815 of 2011
11. Apart from the actions initiated by the Income Tax Department,
the Government of Andhra Pradesh Police Department had also sent a
communication to the Vijayawada Branch of the third respondent on
12.07.2011 with a direction to freeze the Account No.102805000271 of the
petitioner. Pursuant to the said letter of the Andhra Pradesh Police
authorities, the third respondent had freezed the account in total.
12. In continuation of the earlier communication, the Police
Department of the Andhra Pradesh Government had also sent further
communication on 22.07.2011 to the Vijayawada Branch of the third
respondent with the request not to lift the freezing of the Account without
obtaining prior permission from the Andhra Pradesh Police authorities.
13. Citing these reasons, the third respondent has stated that they had
acted strictly in accordance with law enforcing authority and the statutory
authority and acted as per law in freezing the account of the petitioner. The
third respondent is not aware of the fact regarding the allegations raised
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W.P.No.11815 of 2011
against the petitioner. The third respondent relied on Clause 30 and 31 of
the terms and conditions of operating the current account with the third
respondent Bank, which is displayed in the official website of the third
respondent. Accordingly, the third respondent has got every right to
terminate/close or freeze the Account under the suppression of any material
facts and other circumstances. Justifying the actions taken by the third
respondent in freezing the account and de-freezing pursuant to the interim
order granted by this Court and thereafter, again freezing the account based
on the Income Tax Department order and the Andhra Pradesh Police
Department communication, the learned counsel for the third respondent
reiterated that the third respondent has acted in accordance with law and
they have not committed any mistake or otherwise.
14. Considering the submissions made by the respective learned
counsels appearing on behalf of the parties to the lis on hand, this Court is
of the considered opinion that the allegations in the public domain during
the relevant point of time were serious. Advertisements were given in the
newspaper, soliciting the public for erection of cell phone tower in the
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W.P.No.11815 of 2011
private properties. In this context, attractive benefits are published in the
newspapers. Believing the advertisement, many persons have deposited
their money in the account numbers given by the advertisers. One such
person has deposited the money based on the advertisement, given the
complaint to the Central Crime Branch, who in turn, registered an F.I.R and
commenced the investigation. It was understood that many number of
depositors were cheated during the relevant point of time. Unfortunately,
the Central Crime Branch has not made any progress in investigation for
about 10 years.
15. This Court directed the files to be placed and perusal of the files
would reveal that except few correspondences between the authorities,
absolutely, there is no progress in investigation. If such serious allegations
are not investigated properly, undoubtedly, the 'State' being the prosecutor,
is failing in its duty to perform their solemn functions. Allegations are
serious, affecting the public interest. It is not an offence against the
individual and is against the public at large as advertisements are made in
the newspapers, soliciting the public at large to deposit money. No doubt,
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F.I.R was registered against the agents, against whom, a complaint is given.
However, large scale investigations are required to nail the real offenders,
who have involved in the offence of public cheating.
16. In recent days, offences through electronic modes are in
ascending mode. Large scale cheatings are noticed and traced out by the
public in general through such advertisements and therefore, serious
investigations regarding such offences are imminent and in the event of any
lapses, such offenders will show their high-handedness and made further
attempts to loot money from the innocent public. Usage of technology by
the investigating agency is of paramount important and therefore,
investigations are to be widened, so as to ensure that such economic
offences are minimized to the extent possible.
17. Perusal of the files in the present case reveals that there is a total
lapse on the part of the investigating agency in continuing the
investigations. Files are kept pending for about 10 years. Probably, the
complainant would have lost confidence as there is no progress in the
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W.P.No.11815 of 2011
investigation nor any action is taken against the offenders. The petitioner
pleads that they are no way connected with the offence. However, the third
respondent has frozen the account based on the letter communicated by the
Andhra Pradesh Police and Income Tax Department. The actions by the
Income Tax Department and the Andhra Pradesh Police would reveal that
there are larger actions between various persons in the matter of cheating in
this manner by advertising in the newspaper. Thus, thorough investigation is
highly warranted and only then, the truth will come out and the real
offenders shall be prosecuted in the manner known to law.
18. M/s.Revathi, Inspector of Police, Team 3, EDF-II, CCB, Vepery,
Chennai – 600 007, who is present before this Court, informed that she has
taken charge only during the month of February 2021 and she will continue
the investigation immediately in the manner known to law.
19. However, this Court has to consider the fact that the
investigations are not conducted properly by the competent authorities from
the year 2011 onwards. This aspect is to be looked into by the
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Commissioner of Police, Greater Chennai, Vepery, Chennai-600 007. In
view of the fact that there is a prima facie case with reference to the
allegations, further investigations are to be conducted and the role of the
petitioner cannot be determined by this Court in the present writ petition. If
at all, the petitioner pleads innocence, it is for the petitioner to establish the
same before the competent authority by producing documents, evidences or
otherwise.
20. Regarding the submission made by the learned counsel for the
petitioner that the police authorities cannot freeze the account of the
petitioner as the petitioner is not arrayed as an accused and Section 102
Cr.P.C., would not provide any such power to the authorities, this Court is
of an opinion that Sub Section 1 to Section 102 is unambiguous that “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.”. Suspicion of the commission
of any offence by any person is sufficient to initiate action by the Police
authorities. In the present case, complaint is registered and investigations
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W.P.No.11815 of 2011
commenced. They have traced out that the complainant deposited his money
in the particular account in the particular Bank. In such circumstances, if
they are received any such information, the Police authorities are competent
to issue appropriate letter to the Bank to freeze the accounts in order to
avoid any further commission of offence by any person. If at all, the
petitioner would able to establish his innocence, thereafter, all appropriate
actions may be taken. However, in the present case, the third respondent has
again frozen the account of the petitioner pursuant to the letter sent by the
Income Tax Department and the Andhra Pradesh Police authorities. This
being the factum, there is no reason at this point of time to consider the
relief as such sought for in the present writ petition.
21. The learned counsel for the petitioner relied on the judgment of
this Court, reported in 2005 (1) CTC 657 and paragraphs 35 and 37 are
relied upon to establish that Section 102 Cr.P.C. cannot be invoked in the
case of the petitioner. The said paragraphs are extracted hereunder:
“35. During the hearing itself, I had made it clear to the
learned Public Prosecutor that the Special Investigation Team
would be entitled to seize and retain all account books of the
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past period, if required for investigation relating to the charge
of payment of money to the hirelings and also to call upon all
the banks to furnish the necessary information regarding such
past transactions. Learned Public prosecutor has not been able
to point out any single reason for freezing of accounts in the
context of Section 102, Cr.P.C., except for expressing
apprehension that the Mutt may use the funds for gagging or
tampering with the witness. Certainly Section 102, Cr.P.C. is
not intended or visualised for such a contingency. Such
activities can have no relevance to the “commission of any
offence” which is the essential ingredient of Section 102,
Cr.P.C., and in this case, the commission of offence, either
murder or paying money to hirelings are all past events.
Therefore, the apprehension or the possibility of an accused
making use of the funds for influencing or tampering the
witness in future cannot be brought under the scope of Section
102, Cr.P.C., much less can it be an excuse to stifle the
activities of the Mutt. If that be so, in every prosecution under
I.P.C. offences, Section 102 of Cr.P.C. can be invoked.
37. In this case, another perspective which renders
Section 102, Cr.P.C. inapplicable to freeze the accounts of the
Mutt, is that the Mutt is not the accused. It is the Head of the
Mutt who is the accused. If there is any personal or individual
account of the accused, the police could very well invoke
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Section 102, Cr.P.C. as against the said account. The Mutt or
the Trust is an independent body by itself and can have nothing
to do with the commissions and omissions of the Head of the
Mutt in his personal capacity. Though, strictly speaking, the
Head of the Mutt cannot be equated to a Trustee or Manager,
his relationship with the Mutt is only in a fiduciary capacity.
The property, assets and income of the Mutt belongs to the
Mutt and does not belong to the Head of the Mutt. He has no
proprietary or individual rights or interest over the property.
In fact, even the “Paadha Kaanikkai” given to him in the
capacity of Head of the Mutt would also belong only to the
Mutt and accountable vide Section 62 of Act 22 of 1959.
Therefore, for the offences alleged against the Head of the
Mutt, Section 102, Cr.P.C. cannot be invoked as against the
property, assets and income of the Mutt, which is a separate
organisation and legal entity by itself. To hold otherwise,
would lead to unreasonable and shocking situations.”
22. This Court is of the considered opinion that invoking Section 102
Cr.P.C. is to be based on the facts and circumstances of the each case. The
High Court in the said case (cited supra) filed by His Holiness Sri Kanchi
Kamakoti Peetadhipathi Jagadguru Sri Sankaracharya Swamigal Srimatam
Samasthanam, made a finding that there was no possibilities of commission
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of any offence, which is essential ingredient of Section 102 Cr.P.C. Thus,
the specific finding in the said judgment cannot be applied in all the cases.
23. In the present case, the Police authorities formed an opinion that
in the event of allowing the account for operation, there is a possibility of
commission of offence. Therefore, they have issued a letter to freeze the
account. Thus, the facts and circumstances of each case plays a pivotal role
for taking a decision and thus, the said decision taken by the Police
authorities cannot be found fault with. In view of the facts, the judgment
cited is of no avail to the petitioners.
24. As far as the lapses on the part of the Central Crime Branch,
Egmore, Chennai, is concerned, the Commissioner of Police, Greater
Chennai, Vepery, Chennai – 600 007, is directed to look into the files
regarding the lapses, negligence and dereliction of duty being committed by
the investigating authorities by keeping the files pending for more than 10
years without any progress and accordingly, initiate disciplinary
proceedings against the officials, who all are responsible and accountable
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W.P.No.11815 of 2011
for such lapses in conducting the investigations in the manner known to
law, more specifically, in such nature of offences, where larger public
interest is involved.
25. In view of the facts and circumstances, this Court has no
hesitation in forming an opinion that the petitioner has not established the
case for grant of relief and consequently, the writ petition stands dismissed.
No costs. Consequently, connected miscellaneous petitions are closed.
11.11.2021
Kak
Internet : Yes
Index : Yes / No
Speaking order / Nonspeaking order
Note: Registry is directed to communicate the copy of this order to the
Commissioner of Police, Greater Chennai, Vepery, Chennai – 600 007.
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W.P.No.11815 of 2011
To
1.The Secretary (Home),
State of Tamil Nadu,
Fort St. George,
Chennai – 600 009.
2.The Inspector,
State of Tamil Nadu,
Crime Branch, Team-1,
Egmore, Chennai – 600 008.
3.The Commissioner of Police,
Greater Chennai, Vepery,
Chennai – 600 007.
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W.P.No.11815 of 2011
S.M.SUBRAMANIAM, J.
Kak
W.P.No.11815 of 2011
11.11.2021
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