Madras High Court
M/S.Kcp Infra Limited vs The Additional Superintendent Of ... on 4 May, 2023
W.P.Nos.14458, 14459 & 14491 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.05.2023
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P.Nos.14458, 14459 & 14491 of 2023
W.M.P.Nos.13961, 13963, 13964 & 13983 of 2023
M/s.KCP Infra Limited,
Formerly known as KCP Engineers Pvt Ltd.,
Rep by its Managing Direcotr,
K.Chandraprakash,
No.4, Ground Floor, Alayam Space,
Ananadha Road,
Alwarpet,
Chennai – 600 018. ...Petitioner in W.P.
No.14458 of 2023
1. P.Anbarasan
2. M/s P.Senthil & Co.,
Rep by its Managing Partner,
P.Anbarasan
1-C, Krishna Nagar,
Sugunapuram,
Coimbatore – 641 008.
3. Sri Mahaganapathi Jewellers Pvt Ltd.,
Rep by its Director,
P.Anbarasan,
No.29, 2nd Floor,
Model Hutmant Road,
CIT Nagar,
Nandanam,
Chennai – 600 035. ...Petitioners in W.P.
No.14459 of 2023
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Page 1 of 18
W.P.Nos.14458, 14459 & 14491 of 2023
S.P.Velumani ...Petitioner in W.P.
No.14491 of 2023
-Vs-
The Additional Superintendent of Police,
Department of Vigilance and Anti-Corruption,
No.4, Ramasamy Nagar,
Kovundampalayam,
Coimbatore Detachment,
Coimbatore – 641 030. ... Respondent in
all W.Ps.
Common Prayer: Writ Petitions filed under Article 226 of the
Constitution of India praying to issue a Writ of Mandamus, directing the
respondent herein to furnish the material and documents sought for by
the petitioners in their reply dated 27.04.2023 and to grant reasonable
time of 30 days from the date on which the copies are furnished and
further direct the respondent to permit the petitioner to represent through
their chartered accountant during the personal hearing to explain their
known source of income after submitting their final explanation to the
final opportunity notice in connection with FIR in Crime No.5 of 2022,
by considering the reply representation dated 27.04.2023 of the
petitioners.
For Petitioner in
W.P.No.14458 of 2023 : Mr.Siddarth Aggarwal
Senior Counsel
For Mr.V.Elangovan
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W.P.Nos.14458, 14459 & 14491 of 2023
For Petitioners in
W.P.No.14459 of 2023 : Mr.Siddarth Aggarwal
Senior Counsel
For Mr.S.Senthil
For Petitioner in
W.P.No.14491 of 2023 : Mr.A.Natarajan
Senior Counsel
For Ms.A.Madhumathi
For Respondent in
all W.Ps. : Mr.A.Damodaran
Additional Public Prosecutor
COMMON ORDER
These Writ Petitions have been filed for direction to direct
the respondent herein to furnish the material and documents sought for
by the petitioners in their reply dated 27.04.2023 and to grant reasonable
time of 30 days from the date on which the copies are furnished and
further direct the respondent to permit the petitioner to represent through
their Chartered Accountant during the personal hearing to explain their
known source of income after submitting their final explanation to the
final opportunity notice in connection with FIR in Crime No.5 of 2022,
by considering the reply representation dated 27.04.2023 of the
petitioners.
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W.P.Nos.14458, 14459 & 14491 of 2023
2. By consent, the main Writ Petitions itself have taken for
final disposal.
3. The petitioner in W.P.No.14491 of 2023 is arrayed as A1,
the petitioner in W.P.No.14459 of 2023 is arrayed as A2 and the
petitioner in W.P.No.14458 of 2023 is arrayed as A5. On the complaint
lodged by the third party, this Court in W.P.No.34845 of 2018 by its
order date 18.10.2019 directed the respondent to conduct preliminary
enquiry. In pursuant to the enquiry, the respondent registered the FIR in
Crime No.16 of 2021 for the offences under Sections 120B r/w. 420, 409
of IPC and Sections 13(2) r/w 13(1)(c) and 13(1)(d) of Prevention of
Corruption Act, 1988 r/w 109 of IPC. Thereafter, the petitioners sought
for certain documents and file copy of the preliminary enquiry report.
However, it was negatived by this Court and the petitioners preferred
appeal before the Hon'ble Supreme Court of India in which, the Hon'ble
Supreme Court of India directed the respondent to furnish a copy of the
enquiry report dated 18.12.2019 and also granted liberty to challenge the
FIR.
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W.P.Nos.14458, 14459 & 14491 of 2023
4. In the mean while, another FIR was registered as against the
petitioners in Crime No.5 of 2022 for the offences under Sections 120B
r/w 420, 409 IPC and Sections 13(2) r/w 13(1)(c) and 3(1)(d) of
Prevention of Corruption Act, 1988 r/w. 109 of IPC. The allegations are
that the first accused had injudiciously awarded tender to the contractors
who alleged to the benamies. In pursuant to the first FIR, the accused
persons enriched themselves disproportionate assets in the name of
family members and in the name of benami companies. Accordingly,
they possessed disproportionate of assets to the tune of Rs.58,23,97,052/-
during the check period between 01.04.2016 and 13.03.2021.
5. The first accused challenged both FIRs in Crl.O.P.Nos.
21564 & 21565 of 2022. By an order dated 30.11.2022, this Court
quashed the FIR registered in Crime No.16 of 2021 and dismissed the
petition for quashing the FIR in Crime No.5 of 2022. Aggrieved by the
same, the first accused preferred appeal before the Hon'ble Supreme
Court of India and the same was also dismissed by confirming the order
passed by this Court.
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W.P.Nos.14458, 14459 & 14491 of 2023
6. In pursuant to the registration of FIR, the respondent started
investigation. During the investigation, Final Opportunity Notice dated
12.04.2023 was issued to call upon the petitioners to satisfactorily
account for the possession of assets/pecuniary resources disproportionate
to the first accused known source of income as if his family members, the
firms and companies owned by unrelated third parties, possess the assets
on the first accused behalf. The first accused also was called upon to
satisfactorily account for the assets to the tune of Rs.730,55,07,603/-. In
the said notice 10 days time was given to submit the explanation. It was
also enclosed with basic statements I-VI with more than 500 serial
numbers, by clubbing the assets of other accused as if the assets are
owned by the first accused and he was called upon to explain the source
of other assets.
7. Mr.A.Natarajan, learned Senior Counsel appearing for the
petitioner in W.P.No.14491 of 2023 submitted that as per allegations
made in FIR registered in Crime No.5 of 2022, the quantum of
disproportionate of assets was shown as Rs.58,23,97,052/-. Whereas in
the final opportunity notice, the quantum of disproportionate assets was
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W.P.Nos.14458, 14459 & 14491 of 2023
shown as Rs.730,55,07,603/-. The first accused has sent his preliminary
reply on 21.04.2023 refuting the allegations and the quantum in
statements I to VI and requested the respondent to grant time of four
weeks to give his detailed explanation. Without considering the said
request, the respondent sent another notice granting further time of seven
days to submit his explanation.
7.1. He further submitted that the respondent failed to furnish
any material or document to show in what basis the quantum has been
arrived. Therefore the first accused has sent reply dated 27.04.2023 and
sought for materials and documents and also requested to grant four
weeks time for his explanation for the final opportunity notice. He
further submitted that the first accused was called upon to explain the
assets owned by the third parties without showing any basis for drawing
a presumption that these assets are connected to him which reflects the
malafide intention of the respondent.
7.2. He further submitted that the information which was relied
upon the by the respondent in order to seek explanation can be given
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W.P.Nos.14458, 14459 & 14491 of 2023
only with the assistance of the Chartered Accountant, since they only
filed the income tax returns. Hence he sought for assistance of the
Chartered Accountant during the personal hearing to explain the
petitioner's known source of income. Therefore, he prayed to furnish
material and documents and from the date of receipt of those documents,
he may be granted further time of thirty days to explanation his known
source of income.
8. Mr.Siddarth Aggarwal, learned Senior Counsel appearing
for the petitioners in W.P.Nos.14458 & 14459 of 2023 submitted that the
petitioners were served with final opportunity notice dated 12.04.2023.
thereby calling upon them to satisfactorily explain and account for the
possession of assets/pecuniary resource accumulated on behalf of the
first accused held as disproportionate and for taking active participation
in the criminal conspiracy. In that notice, a quantum of Rs.29,25,53,442/-
was arrived as disproportionate assets and pecuniary resources with the
petitioners. A quantum of Rs.34,00,38,674/- was arrived as
disproportionate assets and pecuniary resources with M/s.P.Senthil &
Co., and a quantum of Rs.12,45,09,142/- was arrived as disproportionate
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W.P.Nos.14458, 14459 & 14491 of 2023
assets and pecuniary resources with M/s.Mahaganapthi Jewellers Pvt.
Ltd. The notice was also enclosed with basic statements I-VI.
8.1. He further submitted that the petitioners had sent a
preliminary reply dated 20.01.2023 refuting the allegation and the
quantum arrived in the statements I to VI and requested the respondent to
grant reasonable time of 30 days to give their detailed explanation and
also sought for documents and materials, how the said quantum of
disproportionate of assets is arrived. Without considering the same, the
respondent issued another notice dated 22.04.2023, thereby granting
seven days time to submit their explanation. However, the said request
was not considered till now. Only if the said materials are furnished, the
petitioners are able to submit their detailed explanation. Therefore, he
prayed for necessary direction to the respondent police.
9. Mr.A.Damodaran, learned Additional Public Prosecutor
appearing for the respondent submitted that the petitioners were served
with final opportunity notice on 12.04.2023 and they were granted ten
days and seven days time to explanation was given. However, the
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W.P.Nos.14458, 14459 & 14491 of 2023
petitioners did not reply in time. Again the second final opportunity
notice was served on them on 23.04.2023 & 22.04.2023 in which, they
were granted another seven days time to give their explanation.
Thereafter the petitioners requested further time to give explanation and
also sought for certain materials and documents. During the
investigation, no one can be permitted to assist the accused and therefore
such prayer cannot be considered. Therefore, no further time can be
given and prayed for dismissal of all the Writ Petitions.
10. Heard Mr.Siddarth Aggarwal, learned Senior Counsel
appearing for the petitioners in W.P.Nos.14458 & 14459 of 2023,
Mr.A.Natarajan, learned Senior Counsel appearing for the petitioner in
W.P.No.14491 of 2023 and Mr.A.Damodaran, learned Additional Public
Prosecutor appearing for the respondent in all Writ Petitions.
11. The petitioners are arrayed as accused in Crime No.5 of
2022 registered for the offences under Sections 120B r/w 420, 409 IPC
and Sections 13(2) r/w 13(1)(c) and 3(1)(d) of Prevention of Corruption
Act, 1988 r/w. 109 of IPC. In pursuant to the registration of FIR, the
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W.P.Nos.14458, 14459 & 14491 of 2023
respondent issued final opportunity notice dated 12.04.2023, thereby
called upon them to furnish their explanation within ten days from the
date of receipt of the said communication. The respondent also enclosed
statements I to VI consisting various materials and documents to show
that the assets acquired by the accused persons/petitioners.
12. On receipt of the same, the petitioners requested four weeks
time to give their detailed explanation to show that they did not possess
any disproportionate assets to their known source of income. Whereas,
the respondent issued final opportunity notice dated 23.04.2023 &
22.04.2023, thereby given further time of seven days to furnish their
explanation. On receipt of the same, the petitioner had sent reply seeking
further time of four weeks time submit their explanation.
13. The learned Public Prosecutor relied upon the judgment of
the Hon'ble Supreme Court of India reported in (1991) 3 SCC 655 in the
case of K.Veerasamy Vs. Union of India and ors., and another judgment
reported in (2021) SCC OnLine SC 923 in the case of Central Bureau
of Investigation and anr Vs. Thommandru Hannah Vijayalakshmi @
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W.P.Nos.14458, 14459 & 14491 of 2023
T.H.Vijayalakshmi and anr., submitted that the petitioners do not have a
right to be afforded a chance to explain the alleged disproportionate
assets to the investigating officer before filing of a charge sheet. Relying
on the decision reported in 2013 (1) CWC 136, in the case of
Duraimurugan Vs. State., he would submit that the guidelines provided
in the DVAC Manual are only directive in nature and not mandatory and
non-compliance of procedure contemplated in manual cannot be taken
advantage by the accused. The learned Additional Public Prosecutor, by
relying on the decision reported in (1993) Supp(4) SCC 260 in the case
of Union of India and anr Vs. W.N.Chadha, would contend that an
accused cannot claim any right or prior notice or opportunity of being
heard inclusive of his arrest or search of his residence or seizure of any
property in his possession connected with the crime unless otherwise
provided under the law.
14. Further it is seen that the petitioners sought for further time
to submit their explanation for the final opportunity notice, since they are
facing very serious allegation of possession of disproportionated assets
and it consisting various properties and documents during the check
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W.P.Nos.14458, 14459 & 14491 of 2023
period between 01.04.2016 and 31.03.2021. Further the judgments cited
by the learned Additional Public Prosecutor related to challenging the
final opportunity notice and also quashing of FIR. Whereas in the case
on hand, the petitioner sought for further time to furnish their
explanation to the final opportunity notice. They also sought for certain
materials in order to meet out the allegations and also after submitting
their explanation to the final opportunity notice, during their personal
enquiry, they may be permitted to assist with their Chartered Accountant.
Therefore, the above judgments are not applicable to the case on hand.
15. In this regrad, it is relevant to extract the para 76(2) of the
DVAC Manual as under :-
“(2) In cases where actionable material is found,
after approval of the Final Report at the Headquarters,
the Accused Officer should be given the final opportunity
by the Investigating Officer, in writing and under
acknowledgment, the details of total income and total
expenditure during the Check Period and the likely
savings at the end of the Check Period, details of the
properties and pecuniary resources found possessed as
also the quantum of disproportion at the end of the
Check Period, as worked out in Basic statements I to VI,
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W.P.Nos.14458, 14459 & 14491 of 2023
asking him to explain, within a reasonable time, the
disproportion in assets as determined against the
Accused Officer. The format of the letter to be addressed
to the Accused Officer in this regard will be in
Proforma-28”
16. In the similar case, this Court held that on receipt of final
opportunity notice, the accused have left with no other option except to
explain the same not in mere vague terms, but with some basic but
concrete proof, of course within a reasonable time as specified in para
76(2) of DVAC Manual. Further held that indisputably, the magnanimity
being reflected in the terms “within a reasonable time” cannot be taken
advantage by the accused. But at the same time, they need to understand
the reasonableness meant in the above provision. The reasonable time
terms as reasonable time always depends on the circumstances of the
case. It refers to a fair amount of time that is required to do something
conveniently and as soon as the circumstances permit.
17. In the case on hand, the final opportunity notice was issued
on 22.04.2023 and directed to submit their explanation on or before
28.04.2023. On receipt of the said notice, the petitioners had sent their
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W.P.Nos.14458, 14459 & 14491 of 2023
reply and sought for further time of four weeks to submit their
explanation. Further they also sought for certain materials and documents
in order to submit proper explanation for the final opportunity notice.
18. Considering the above facts and circumstances, this Court is
inclined to grant further time till 29.05.2023 to submit their explanation
to the final opportunity notice. Insofar as the materials and documents
which are sought for by the petitioners cannot be granted, for the reason
that, all the materials and documents were seized from the accused and
the respondent already provided all the statements I to VI containing the
details of the properties. As far as the assistance of the Chartered
Accountant is concerned, the respondent has no serious objection to
permit the petitioner to represent through their Chartered Accountant,
during their personal hearing to explain their known source of income,
after submitting their final explanation to the final opportunity notice.
Therefore, the petitioners are permitted to accompany with their
Chartered Accountant for their assistance during their personal hearing to
explain their known source of income before the respondent.
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W.P.Nos.14458, 14459 & 14491 of 2023
19. With the above directions, all the Writ Petitions are
disposed of. There shall be no order as to cost. Consequently, connected
miscellaneous petitions are closed.
04.05.2023
Internet: Yes
Index : Yes/No
Speaking/Non Speaking order
Note :- Issue order copy on
or before 12.05.2023
rts
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W.P.Nos.14458, 14459 & 14491 of 2023
To
1. The Additional Superintendent of Police,
Department of Vigilance and Anti-Corruption,
No.4, Ramasamy Nagar,
Kovundampalayam,
Coimbatore Detachment,
Coimbatore – 641 030.
2. The Public Prosecutor,
Madras High Court,
Chennai.
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W.P.Nos.14458, 14459 & 14491 of 2023
G.K.ILANTHIRAIYAN. J,
rts
W.P.Nos.14458, 14459 & 14491 of 2023
W.M.P.Nos.13961, 13963, 13964 & 13983 of 2023
04.05.2023
https://www.mhc.tn.gov.in/judis
