Bombay High Court
Amar Sadhuram Mulchandani vs Directorate Of Enforcement Througth ... on 21 February, 2023
Author: R. N. Laddha
Bench: Nitin W. Sambre, R. N. Laddha
Digitally
signed by
CHITRA
CHITRA SANJAY
SANJAY SONAWANE
SONAWANE Date:
2023.02.22
16:31:43
+0530
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Production matter- ED.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
(502)WRIT PETITION NO.646 OF 2023
Vinay Vivek Aranha .... Petitioner.
Vs.
The State of Maharashtra & Anr. ... Respondents.
WITH
(902) WRIT PETITION NO.612 OF 2023
Amar Sadhuram Mulchandani ... Petitioner.
Versus
The Directorate of Enforcement & Ors. .... Respondents.
.......
Mr. Ravi Kadam, Senior Advocate, a/w S.R. Phanse, Karan Kadam,
Pawan Mali, S.S. Bedekar, for the Petitioner in Writ Petition
No.612/2023.
Mr. H.S. Venegavkar for Respondent- Directorate of Enforcement.
Mr. A.R.Kapadnis, APP for State.
Ms Minal Chandnani,Advocate for Intervener in W.P.no.612/2023.
Mr. Nilesh Oza with Jaydeep Shringare with Ravindra Mali, Saurav
Khanna for the Petitioner in W.P.No.646/2023.
.......
Chitra Sonawane.
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CORAM: NITIN W. SAMBRE AND
R. N. LADDHA, JJ.
DATE : 21 FEBRUARY 2023.
P.C. :-
Criminal Writ Petition No.646 of 2023 :
Not on board. Upon mentioning, taken on board.
2. This mater was mentioned before us yesterday, during day time, however, since the Court was in a midst of hearing some other matter, learned Counsel has mentioned it today.
3. Today in the morning when the matter was mentioned, since learned Counsel for the Directorate of Enforcement was not present, mentioning was permitted along with the connected matter. Since the issue in the present petition is identical with Criminal Writ Petition No.612 of 2023, both the petitions are heard together.
4. At the outset, Mr.Venegaonkar appearing on behalf of the Directorate of Enforcement, submits that due to listing of the matter on short notice, he need time to make submissions on the Chitra Sonawane.
3Production matter- ED.doc factual aspect. However, object to the maintainability of the petition on the ground of Enforcement Case Information Report (for short 'ECIR'), being non statutory document in view of the judgment of the Apex Court, in the matter of Vijay Madanlal Choudhary & Ors. Versus Union of India & Ors. 1, particularly, para nos.456 and 457. In view of above, he would urge that this Court should be slow in causing interference at this stage.
5. Aforesaid submissions are resisted and opposed by Mr.Kadam, learned Senior Advocate stating that jurisdiction under Article 226 of the Constitution of India can be invoked even if, the petitioners are not entitled to copy of ECIR in law and ECIR are internal document for the Directorate of Enforcement, he would urge that in the facts of the case, it is open for him to question the same.
6. Be that, as it may; as this Court is required to be sensitive to the position of law viz. jurisdiction under Article 226 of the Constitution of India is propriety, prima facie we are of the view that petition is maintainable.
7. Challenge to ECIR is based on the following legal submissions.
1 2022 SCC OnLine SC 929.
Chitra Sonawane.
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a) that Press Release dated 30 January, 2023, which is followed with the summons dated 7.2.2023 and 13.2.2023 has given impression to the petitioners that they are likely to be taken in custody by the Directorate of Enforcement, in the matter of investigation of ECIR.
b) Mr.Ravi Kadam, learned Senior Counsel would invite our attention to the 'C Summary' accepted by the 13th Judicial Magistrate, First Class, Pune, vide order dated 18 th April 2022, wherein the investigation in the predicated offence vide C.R.No.163 of 2018 was closed.
c) In addition, his contentions are even if, subsequent 17 offences are registered against the petitioners, in 15 offences, there is challenge before this Court and the Division Bench of this Court has already directed no coercive action, which order still governs the relationship between the parties thereto.
d) In addition, his contentions are, inquiry/special audit conducted under the provisions of Maharashtra Cooperative Societies Act since was contrary to the interim order passed by the Division Bench of this Court, in Writ Petition No.4134 of 2019 vide judgment dated 16.11.2021, the Division Bench has quashed and set aside Crime No.806 of 2019.
Chitra Sonawane.
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e) He would urge that this Court is required to examine as to whether action of respondent/Directorate of Enforcement, can be said to be justified under the provisions of Prevention of Money Laundering Act, 2002 (for short 'PMLA') and the judgment of the Apex Court in the matter of Vijay Madanlal Choudhary (Supra).
8. Mr.Venegaonkar, the learned Counsel appearing on behalf of the Respondent/Directorate of Enforcement, though seeks short time to file affidavit-in-reply on the said issue, according to him, the petitioners have not cooperated or honoured the summons. According to him, in a petition which is not maintainable, relief of interim nature can not be sought. In addition, he would urge that this Court can not pass blanket order of no coercive action without recording reasons in view of the law laid down by the Supreme Court in M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra2.
9. Mr.Venegavkar, would urge that investigation pursuant to the ECIR is based not only on the single incident which has laid to filing of closure summary and acceptance of the same by JMFC, Pune. According to him, Respondents have referred to 3 FIR's and of these, two are still under investigation of the State which are looked into by the Directorate of Enforcement.
2 SC Cri.Appeal No.330/2021Chitra Sonawane.
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10. We have appreciated the aforesaid submissions only for the purpose of grant of ad-interim relief.
11. The fact remains that acceptance of 'C Summary' by the Magistrate is not a fact in dispute, as the said fact can be borne out of the record. As far as registration of 17 other offences against the Petitioners are concerned, it can be borne out of the record based on various orders passed by the Division Bench order in the nature of no coercive action was passed in favour of the Petitioners against State-investigating agency.
12. As far as, issue as regards inquiry/special audit by the Cooperative department is concerned, the Division Bench of this Court has already quashed the offences registered by the State under the Indian Penal Code, in view of such act being contrary to the orders of the Division Bench. Support can be drawn from the observations made by the Division Bench, in its order dated 16.11.2021, delivered in Writ Petition No.4134/2019. We are equally sensitive to the fact that the Division Bench has not gone into and decided the matter on merits all the allegations in the FIR, in the said matter.
13. We are equally sensitive to the fact that the said judgment is sub judice before the Apex Court in SLP, however, the Apex Court Chitra Sonawane.
7Production matter- ED.doc has not granted any relief to the petitioners who has preferred SLP. In this background, since the Division Bench has already ordered no coercive action against the petitioners, in 15 offences by passing orders in various writ petitions, in view of acceptance of 'C Summary' order passed by the learned JMFC, on 18.4.2022, and having regard to the fact that the Division Bench has already quashed the FIR against the petitioners, referred supra, we are of the view that case for grant of ad-interim relief is made out.
14. We hereby qualify ad-interim relief, thereby permitting the Respondent to continue with the investigation.
15. The Petitioners shall continue to appear before the Directorate of Enforcement as and when so directed by the Respondent.
16. The Directorate of Enforcement is at liberty to proceed against the Accused person on the civil side also. However, until further orders, in the event Directorate of Enforcement having any intention to take the petitioners in custody, they should be served with the written intimation, about such intention, 72 hours in advance, on the Petitioners. This arrangement shall remain in operation till next date.
Chitra Sonawane.
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17. Statement of learned Counsel Mr. Venegavkar is accepted that the pleadings in both the petitions shall be completed, in any case by 28th February, 2023.
18. Rejoinder, if any, be placed on record by 6th March, 2023.
19. Matter to come up for consideration on 10th March, 2023.
[R. N. LADDHA, J.] [NITIN W. SAMBRE, J.] Chitra Sonawane.