Karnataka High Court
Mr. R. Aneppa vs The State Of Karnataka on 20 November, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL REVISION PETITION NO.646/2020
C/W
CRIMINAL REVISION PETITION NOS.613/2020,
634/2020, 636/2020
IN CRL.R.P. NO.646/2020
BETWEEN:
MR. R. ANEPPA,
S/O LATE REVANNA,
AGED ABOUT 52 YEARS,
R/AT: NO.388, REVANNA LAYOUT,
ANNAPURNA NAGAR,
KALKERE MAIN ROAD,
RAMAMURTHINAGAR,
BENGALURU - 560 043. ... PETITIONER
(BY SRI SIDDHARTH B. MUCHANDI, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
REPRESENTED BY POLICE INSPECTOR,
ANTI-CORRUPTION BUREAU,
BENGALURU CITY STATION,
BENGALURU - 560 001. ... RESPONDENT
(BY SRI MANMOHAN P.N., SPL. PP)
2
THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W 401 OF CR.P.C., PRAYING TO:
A) EXAMINE THE CORRECTNESS AND LEGALITY OF THE
ORDER DATED 30.09.2020 ON THE FILE OF XXIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, SPECIAL JUDGE,
BANGALORE URBAN DISTRICT, BANGALORE IN
CRL.MISC.NO.4990/2020.
B) SET ASIDE THE ORDER DATED 30.09.2020 THEREIN
AND CONSEQUENTLY ALLOW THE APPLICATION FILED BY THE
PETITIONER U/S 451, 457 OF THE CODE OF CRIMINAL
PROCEDURE AND DIRECT THE RESPONDENT POLICE TO
INSTRUCT HDFC BANK, KALKERE BRANCH, BANGALORE TO
DEFREEZE HIS BANK ACCOUNT BEARING ACCOUNT
NO.10501000000016, ALONG WITH THE ATTACHED LOCKER
FACILITY NO.68 AND PERMIT TO OPERATE THE SAME PENDING
DISPOSAL OF THE TRIAL.
IN CRL.R.P. NO.613/2020
BETWEEN:
M/S. VALMAK REALITY
HOLDINGS PVT. LTD.,
HAVING ITS OFFICE AT
NO.133/1, 'THE RESIDENCY'
10TH FLOOR, BENGALURU - 560 025
REPRESENTED BY ITS DIRECTOR,
MR. RATAN BABULAL LATH,
AGED ABOUT 59 YEARS ... PETITIONER
(BY SRI K. SHASHIKIRAN SHETTY, SENIOR ADVOCATE A/W
SRI BHARATH KUMAR V., ADVOCATE)
3
AND:
STATE OF KARNATAKA,
THROUGH STATION HOUSE OFFICER,
ANTI CORRUPTION BUREAU
BENGALURU CITY
REPRESENTED BY:
STATE PUBLIC PROSECUTOR
HON'BLE HIGH COURT OF KARNATAKA,
BANGALORE - 560 001. ... RESPONDENT
(BY SRI MANMOHAN P.N., SPL. PP)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W 401 OF CR.P.C., PRAYING TO:
A) SET ASIDE THE ORDER DATED 16.09.2020, IN MATTER
BEARING SPL.C.C. NO.259/2020 PASSED BY THE XXIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, SPECIAL
JUDGE, BENGALURU URBAN DISTRICT, AS AGAINST THE
PETITIONER HEREIN (VIDE ANNEXURE-A).
B) CONSEQUENTLY, DIRECT THE RESPONDENT POLICE TO
WITHDRAW THE NOTICE DATED 13.08.2020, COMMUNICATED
TO M/S CORPORATION BANK AND M/S HDFC BANK OR DEFREEZ
THE FOLLOWING ACCOUNTS HELD BY THE PETITIONER HEREIN:
1. A/C NO.510101005674671,
BANK NAME - CORPORATION BANK, M.G.ROAD BRANCH,
ACCOUNT HOLDER - M/S VALMARK REALITY HOLDINGS
PVT. LTD.,
BALANCE AS ON THE DATE OF FREEZING - RS.61,02,818/-.
2. A/C NO.510101005677199,
BANK NAME - CORPORATION BANK, M.G.ROAD BRANCH,
ACCOUNT HOLDER - M/S VALMARK REALITY HOLDINGS
PVT. LTD.,
BALANCE AS ON THE DATE OF FREEZING - RS.2,23,720/-.
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3. A/C NO.5020003572721,
BANK NAME - HDFC BANK, KASTURBA ROAD BRANCH
ACCOUNT HOLDER - M/S VALMARK REALITY HOLDINGS
PVT. LTD.,
BALANCE AS ON THE DATE OF FREEZING - RS.1,22,354/-
IN CRL.R.P. NO.634/2020
BETWEEN:
MR. RATAN BABULAL LATH,
S/O BABULAL LATH,
AGED ABOUT 59 YEARS,
R/AT NO.22, GOLDEN ENCLAVE,
OLD AIRPORT ROAD,
VIMANAAPUARA,
BENGALURU NORTH TALUK,
BENGALURU - 560 017. ... PETITIONER
(BY SRI SHASHIKIRAN SHETTY, SENIOR ADVOCATE A/W
SRI BHARATH KUMAR V., ADVOCATE)
AND:
STATE OF KARNATAKA,
THROUGH
STATION HOUSE OFFICER,
ANTI CORRUPTION BUREAU
BENGALURU CITY
REPRESENTED BY:
STATE PUBLIC PROSECUTOR
HON'BLE HIGH COURT OF KARNATAKA,
BANGALORE - 560 001. ... RESPONDENT
(BY SRI MANMOHAN P.N., SPL. PP)
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THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W 401 OF CR.P.C., PRAYING TO SET ASIDE THE ORDER
DATED 16.09.2020, IN MATTER BEARING SPL.C.C. NO.259/2020
PASSED BY THE XXIII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, SPECIAL JUDGE, BENGALURU URBAN DISTRICT, AS
AGAINST THE PETITIONER HEREIN (VIDE ANNEXURE-A) AND
CONSEQUENTLY, DIRECT THE RESPONDENT POLICE TO
WITHDRAW THE NOTICE DATED 13.08.2020, COMMUNICATED
TO M/S CORPORATION BANK AND M/S HDFC BANK OR DEFREEZ
THE FOLLOWING ACCOUNTS HELD BY THE PETITIONER HEREIN.
1. ACCOUNT NO.520461015315847,
2. BANK - CORPORATION BANK, M.G.ROAD BRANCH,
3. ACCOUNT HOLDER AS RATAN BABULAL LATH.
IN CRL.R.P. NO.636/2020
BETWEEN:
SRI AMITH JAGADISH CHANDRA BOLAR,
S/O JAGADISH CHANDRA BOLAR,
AGED ABOUT 40 YEARS,
R/AT NO.20, 2ND MAIN ROAD,
SHAMANNA GOWDA LAYOUT,
HALASURU, H.A.L. STAGE,
BENGALURU - 560 008. ... PETITIONER
(BY SRI SHASHIKIRAN SHETTY, SENIOR ADVOCATE A/W
SRI BHARATH KUMAR V., ADVOCATE)
AND:
STATE OF KARNATAKA,
THROUGH
STATION HOUSE OFFICER,
ANTI CORRUPTION BUREAU
BENGALURU CITY
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REPRESENTED BY:
STATE PUBLIC PROSECUTOR
HON'BLE HIGH COURT OF KARNATAKA,
BANGALORE - 560 001. ... RESPONDENT
(BY SRI MANMOHAN P.N., SPL. PP)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W 401 OF CR.P.C., PRAYING TO:
A) SET ASIDE THE ORDER DATED 16.09.2020, IN MATTER
BEARING SPL.C.C. NO.259/2020 PASSED BY THE XXIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, SPECIAL
JUDGE, BENGALURU URBAN DISTRICT, AS AGAINST THE
PETITIONER HEREIN (VIDE ANNEXURE-A).
B) CONSEQUENTLY, DIRECT THE RESPONDENT POLICE TO
WITHDRAW THE NOTICE DATED 13.08.2020/14.08.2020,
COMMUNICATED TO M/S CORPORATION BANK AND M/S HDFC
BANK OR DEFREEZ THE FOLLOWING ACCOUNTS HELD BY THE
PETITIONER HEREIN.
1. A/C NO.520451007422516
BANK NAME - CORPORATION BANK, M.G.ROAD BRANCH,
ACCOUNT HOLDER - AMIT JAGADISH CHANDRA BOLAR,
BALANCE AS ON THE DATE OF FREEZING - RS.445.64/-.
2. A/C NO.01841000079083
BANK NAME - HDFC BANK, INDIRANAGAR,
CMH ROAD BRANCH,
ACCOUNT HOLDER - AMIT JAGADISH CHANDRA BOLAR,
BALANCE AS ON THE DATE OF FREEZING - RS.12,089.12/-.
THESE CRIMINAL REVISION PETITIONS COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
These petitions are directed against the orders passed by the XXIII Additional City Civil and Sessions Judge, Bengaluru Urban District (C.C.H. 24), Bengaluru City on the applications filed by the petitioners under Section 451 and 457 of Cr.P.C. seeking to defreeze the bank accounts frozen by the respondent under Section 102 of Cr.P.C.
2. The undisputed facts are that the respondent herein filed a charge sheet against 14 accused persons alleging commission of offences punishable under Sections 13(1) (a) read with 13(2) of PC Act 1988, Sections 420, 465, 468, 471, 120B of IPC r/w.34 of IPC. The petitioners herein were shown as accused Nos.8, 9, 6 and 5 respectively. The gist of allegations made against the petitioners and other accused as summarized by the trial court would go to show that large scale fraud to the tune of Rs.56.37 crores was alleged to have been committed by the accused in 8 connivance with the officials of BBMP as well as the private individuals.
3. According to the prosecution the property comprised in Sy.No.132 of Kowdenahalli Village was owned by late Revanna and his family. In this property, an illegal layout was formed and the plots therein were sold to various purchasers. BBMP sought to acquire the said land for the purpose of broadening the road. Even though lands were already sold by the erstwhile owner to various purchasers, the son of the erstwhile owner- Sri.Aneppa, petitioner in Criminal Revision petition No.646/2020, claiming to be the owner of the said properties, obtained TDRs and later sold the TDRs to various parties through different registered deeds. According to the prosecution TDRs were obtained by making false representations and by creating fake records inflating the area by showing excess floors in the respective plots to a total extent of 5,64,591 sq. ft. which were later sold to various purchasers for a total value of Rs.27,68,79,143/-. Out of the said amount, a sum of 9 Rs.17,47,05,361 was received by VRHPL, the petitioner in Criminal Revision Petition No.613/2020.
4. Allegations against the present petitioners are that the petitioners by entering into a conspiracy with the aforesaid persons and with the officials of the BBMP, managed to obtain TDRs in respect of the above extent by fabricating false documents and also facilitated sale of the same to various purchasers and in the process received huge amount of brokerage. During the course of investigation, accounts of the petitioners were seized under Section 102 of Cr.P.C. and they were restrained from operating the said accounts. On coming to know of the freezing of the respective accounts, petitioners filed applications under section 451 r/w.457 of Cr.P.C. with a prayer to defreeze the accounts on the ground, i) investigating officer failed to comply with the requirements of Section 102 of Cr.P.C. and ii) the accounts maintained by the petitioners had no nexus with the offence alleged against the various accused. These 10 petitions have been dismissed by the trial Court which are impugned in these petitions.
5. The learned senior counsel appearing for the petitioners in Crl.RPs 613/2020, 634/2020 and 636/2020 and the learned counsel for the petitioner in Crl.RP. 646/2020 have assailed the impugned orders firstly on the ground that the allegations made in the charge sheet, on the face of it, indicate that neither the BBMP nor the State has sustained any loss in respect of the alleged transaction; under the said circumstance, the only remedy available for the State or the BBMP was either to seek cancellation of the TDRs or to seize the TDRs in respect of which the alleged offences were committed, but the investigating officer has proceeded to defreeze the accounts of the petitioners which has no connection or nexus either with the issuance of TDRs or with the crime alleged against the BBMP officials. None of the petitioners were instrumental in obtaining the TDRs or in the sale of the said TDRs. The purchasers themselves having not been made accused, prosecution of the petitioners is legally 11 untenable. Thus the petitioners have prayed for setting aside the impugned orders and to permit the petitioners to operate the accounts.
6. The second limb of the argument is that the requisite formalities have not been followed by the investigating officer in effecting the seizure under section 102 of Cr.P.C. In this regard Sri.Muchandi, learned counsel for the petitioner in Crl.RP.No.646/2020 has placed reliance on the decision of this Court in the case of Smt. Lathifa vs. The State of Karnataka, Home Department rep., by its Secretary and Others reported in ILR 2012 KAR 2220, wherein it is held as under:
"Following the procedure as provided under Section 102 is mandatory. If the Police Officer who has seized the bank account is subordinate officer/incharge of a Police Station, he shall forthwith report the seizure to his higher officer. He should inform the concerned Magistrate forthwith regarding the prohibitory order and he should also give notice of seizure to accused and allow him/her to operate bank account subject to his/her executing bond undertaking to produce the amount in Court as and when required."12
7. Based on this ratio, it is argued that in the instant case no material has been produced by the respondent to show that soon after the seizure, the same was intimated to the learned Magistrate as required under Section 102 of Cr.P.C. and no material is available to show that the accused was served with the mandatory notice calling upon him to execute the bond. Further, the learned counsel referred to another decision of this Court, in the case of Manish Khandelwal and Others vs. State of Maharashtra through Economic offences and Others reported in 2019 SCC Online Bom 1412, wherein it is observed thus :
"20. In so far as the contention of the learned APP that non-compliance of the procedure laid down under Section 102 of the Code, is only an irregularity and it will not vitiate the freezing of the bank account is concerned, I am not inclined to accept the said submission, since Section 102(3) of the Code mandates the report of the seizure of the property to the Magistrate.13
8. On the same point, the learned counsel has cited the decision of the Delhi High court in Muktaben M. Mashru v. State (NCT of Delhi) reported in 2019 SCC online 11509 wherein it is reiterated as under:
"38. It is an admitted fact that the IO had not informed the concerned Magistrate forthwith regarding the prohibitory order and also did not give any notice to the petitioner and the co-account holder, Piyush Bhai Thakkar, allowing her/him to operate the bank account, subject to her/his executing a bond undertaking to produce the amounts in court, as and when required to tell her/him, subject to such orders as the Court may make regarding the disposal of the same.
9. Based on these decisions and the decisions of the Madras High Court, the learned counsel has emphasized that on account of the non compliance of the above mandatory requirements, the impugned orders are liable to be set aside.
10. Meeting the above arguments, the learned Special Public Prosecutor appearing for the respondent has filed a memo 14 along with the relevant portion of the charge sheet dated 6.5.2020; Development Right Certificates; a Chart depicting details of the amount paid towards TDRs; Alignment Plan of T.C. Palya Main Road; two registered Deeds of Conveyance of Development Rights and the relevant portion of the Bank account statement relating to Account No.034100201002315 (New No.-510101005674671) of the Valmark Reality Holding Pvt. Ltd. in the Corporation Bank, M.G. Road Branch, Bengaluru.
11. Based on these documents learned Spl. PP would submit that these documents prima facie disclose that the petitioners were party to the alleged conspiracy and in furtherance of which, petitioners not only obtained false TDR certificates by fabricating false documents but also facilitated sale of TDR to the innocent purchasers and proceeds thereof were pocketed by these petitioners which is reflected in the bank extract or the bank statements. The learned Spl. PP has pointed out that the TDRs were obtained in respect of 56,491 sq. ft. by showing the floors which were not in existence and since the 15 TDRs for the excess amount were sold by the accused at the instance of the present petitioners, BBMP is required to compensate the purchasers in respect of the excess TDR obtained by the petitioners and therefore, it is submitted that the contention of the learned counsel for the petitioners that by issuance of the TDR, no loss was caused to the BBMP and no loss is caused to the State exchequer is not correct.
12. By referring to the copies of the deeds of conveyance, learned Special PP has pointed out that staggering amounts running to crores of rupees has been received by the petitioners; the sale deeds indicate that the petitioners were the sellers and M/s.Valmark Realty Holdings (P) Limited was a confirming party. The said company also acted as a power of attorney of the vendors which again supports the case of the prosecution that the entire transaction has taken place with the active knowledge and connivance of the petitioners in furtherance of the conspiracy to make unlawful gain and further he would submit that the respective amounts credited to the accounts of Valmark 16 Realty Holdings (P) Limited is reflected in the Bank extract which shows that huge amount of Rs.1,62,40,000/-, 1,59,00,000/- 12,50,000/-, 1,65,75,000/- are credited to the account of M/s.Valmark Reality Holdings Pvt. Ltd. on different dates and the said amount being the proceeds of the crime which are directly relatable to the offences alleged against the petitioners, investigating agency was well within its powers to seize the said accounts by taking recourse to Section 102 of Cr.P.C.
13. With regard to power of the investigating agency to freeze the bank accounts and to seize the proceeds of the crime, the learned Spl. PP has placed reliance on the decision of the Bombay High Court in case of Vinoshkumar Ramachandran Valluvar vs. The State of Maharashtra (Through Sr.P.I., Tardeo Police Station, Mumbai vide C.R. No.7/08) reported in 2011 (1) MWN (Cr.) 497 (FB) Bom.). Paragraphs 18 and 19 thereof may be of worth to be produced which read as under :
"18. It is, therefore, clear that like any other property a bank account is freezable.17
Freezing the account is an act in investigation. Like any other act, it commands and behoves secrecy to preserve the evidence. It does not deprive any person of his liberty or his property. It is necessarily temporary i.e. till the merit of the case is decided. It clothes the Investigating Officers with the power to preserve a property suspected to have been used in the commission of the offence in any manner. The property, therefore, requires to be protected from dissemination, depletion or destruction by any mode. Consequently, under the guise of being given information about the said action, no accused, not even a third party, can overreach the law under the umbrella of a sublime provision meant to protect the innocent and preserve his property. It would indeed be absurd to suggest that a person must be told that his Bank account, which is suspected of having been used in the commission of an offence by himself or even by another, is being frozen to allow him to have it closed or to have its proceeds withdrawn or transferred upon such notice.
19. The question before us, therefore, is stark in its framing. The word before or simultaneously in the question specifically requires us to consider whether before freezing the account 18 or at the time of freezing the account a notice has to be issued upon the concerned person. Our answer can only be in the negative. Section 102 of the Cr.P.C. does not require issuance of notice to a person before or simultaneously with the action of attaching (his) bank account. We answer accordingly."
(Underlining supplied) Further, the Special PP has laid emphasis on the decision in Union of India and Another vs. W.N. Chadha reported in 1993 Supp (4) Supreme Court Cases 260 in paragraphs 88, 89, 90, 91 and 95 whereof it is held as follows :
"88. The principle of law that could be deduced from the above decisions is that it is no doubt true that the fact that a decision, whether a prima facie case has or has not been made out, is not by itself determinative of the exclusion of hearing, but the consideration that the decision was purely an administrative one and a full-fledged enquiry follows is a relevant - and indeed a significant - factor in deciding whether at that stage there ought to be hearing which the statute did not expressly grant.19
89. Applying the above principle, it may be held that when the investigating officer is not deciding any matter except collecting the materials for ascertaining whether a prima facie case is made out or not and a full enquiry in case of filing a report under Section 173(2) follows in a trial before the Court or Tribunal pursuant to the filing of the report, it cannot be said that at that stage rule of audi alteram partem superimposes an obligation to issue a prior notice and hear the accused which the statute does not expressly recognise. The question is not whether audi alterant partem is implicit, but whether the occasion for its attraction exists at all.
90. Under the scheme of Chapter XII of the Code of Criminal Procedure, there are various provisions under which no prior notice or opportunity of being heard is conferred as a matter of course to an accused person while the proceeding is in the stage of an investigation by a police officer.
91. More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under 20 Section 173(2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under Section 204 of the Code, as the case may be.
95. It is relevant and significant to note that a police officer, in charge of a police station, or a police officer making an investigation can make a search or cause search to be made for the reasons to be recorded without any warrant from the Court or without giving the prior notice to anyone or any opportunity of being heard. The basic objective of such a course is to preserve secrecy in the mode of investigation lest the valuable evidence to be unearthed will be either destroyed or lost. We think it unnecessary to make a detailed examination on this aspect except saying that an accused cannot claim any right of 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."
(underlining supplied)
14. In the light of the law laid down by the Hon'ble Supreme Court, the learned special PP would submit that the decision rendered by this Court in Smt.Latifa (supra) being per incuriam insofar as it states that the notice to the accused of the 21 seizure and allowing him to operate the bank account may not be correct law as laid down by this Court as well as other High Courts.
15. I have given my anxious thought to the above submissions and have carefully scrutinized the pleadings, documents and other materials produced by the respective parties.
16. Section 102 Cr.P.C. empowers the investigating officer to seize the property suspected to have been stolen or any property which is found under circumstances which create suspicion of the commission of any offence. The section 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 22 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."
17. This provision does not cast any obligation on the Investigating Officer to issue prior notice to the accused or an opportunity to the account holder to operate the account seized or frozen during the course of investigation. The only mandate prescribed under sub-section (2) of section 102 of Cr.P.C. is that, if the seizure is effected by the Police Officer sub-ordinate to the officer-in-charge of the Police Station, he shall forthwith report the seizure to the officer-in-charge of the Police Station 23 and as per sub-section (3), the Police Officer effecting the seizure shall forthwith report the seizure to the Magistrate having jurisdiction and nothing more. This mandatory requirement appears to have been duly complied in the instant case, as is evident from the copy of the report dated 01.09.2020 produced by learned Special P.P., which reveals that the details of freezing of 28 accounts including that of the petitioners have been reported to the Magistrate. Therefore, the first limb of argument of learned counsel for petitioners based on non- compliance of mandatory requirement of section 102 of Cr.P.C. is liable to be rejected and is accordingly rejected.
18. Insofar as the decision relied on by learned counsel for petitioners in SMT. LATHIFA VS. THE STATE OF KARNATAKA, HOME DEPARTMENT REP., BY ITS SECRETARY AND OTHERS, ILR 2012 KAR 2220 is concerned, eventhough it is held that the Police Officer who seized the Bank account shall forthwith report the seizure to his higher officer and shall inform the concerned Magistrate regarding the prohibitory order and that he should 24 also give notice of seizure to accused and allow him or her to operate the Bank account yet, the Hon'ble Apex Court in UNION OF INDIA & Another vs. W.N.CHADHA, 1993 Supp(4) SCC 260 referred above has laid down the law that the accused cannot claim any right of 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. This decision appears to have not been brought to the notice of this Court while deciding the issue in Smt.LATHIFA case (supra) -Nonetheless, the decision rendered by the Hon'ble Apex Court has binding force in the order of precedents. Therefore, the submissions canvassed by learned counsel for petitioners that on account of non-issuance of prior notice to the accused and by not providing opportunity to the account holder to operate the frozen accounts, the impugned order are rendered illegal cannot be accepted.
19. Coming to the merits of the case, though an endeavor has been made by the learned Senior Counsel as well as the 25 counsel for the petitioner in Crl.R.P.646/2020 to demonstrate that no offence has been committed by the petitioners in respect of the alleged TDR, but a reading of the charge sheet clearly indicates that the petitioners herein are implicated in the alleged offences on the specific allegation that they were party to the larger conspiracy and in furtherance of the said conspiracy, TDR certificates were manipulated and were later transferred to various purchasers. Undeniably, TDR certificates are in the nature of property within the meaning of Sec. 102 of Cr.PC. It is a transferable right. The sale deeds executed by the accused persons indicate that by sale of these certificates, huge consideration has been received by the accused and part of it has been credited to the accounts of the petitioners which prima facie go to show that the TDR certificates are not mere documents but are valuable properties convertible in terms of money. The petitioners are party to these transactions. The purchasers of these TDRs could enforce them against B.B.M.P. Therefore the argument of the learned Senior Counsel for the petitioners that the alleged transaction have no monetary 26 repercussion on B.B.M.P. or on the state is difficult to accept. Prima facie, the alleged transaction being fraudulent, there was justifiable basis for the Investigating Officer to take recourse to Sec. 102 of CRPC. As a result, I do not find any illegality whatsoever in the proceedings initiated against the petitioners.
20. A perusal of the impugned order reveals that the trial Court has appreciated all the above facts and the circumstances of the case and by applying correct principles of law has refused to defreeze the accounts of the petitioners. Having regard to the enormity of the offence and the manner in which these offences have been committed, the proceeds found in the bank account of the petitioner are also liable for confiscation. It is submitted at the Bar that action has been initiated in respect of the alleged bank accounts by taking recourse to the provisions of Section 18A of the Prevention of Corruption Act. Therefore, taking all these facts into consideration, I do not find any ground to interfere with the impugned order. Consequently, the petitions 27 being devoid of merits are liable to be dismissed and are accordingly, dismissed.
Sd/-
JUDGE rs