Karnataka High Court
Mr. Mujeebuddin S/O Fazaluddin vs The Police Inspector on 31 August, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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WP No. 101251 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 31ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 101251 OF 2024 (GM-RES)
BETWEEN:
MR. MUJEEBUDDIN S/O. FAZALUDDIN,
AGED 54 YEARS, OCC: BUSINESS,
R/O. HOUSE NO.12 -11-132/2,
ARAB MOHALLA, RAICHUR-584101.
...PETITIONER
(BY SRI. P.S. MALIPATIL, ADV. FOR
SRI. PRAVEEN G. KULKARNI, ADV.)
AND:
1. THE POLICE INSPECTOR,
CYBER CRIME POLICE STATION,
DIST. CEN CRIME, PS BELAGAVI,
NEAR DC OFFICE, COURT COMPOUND,
BELAGAVI-590001.
2. THE DEPUTY SUPERINTENDENT OF POLICE,
CID, (CRIME INVESTIGATION DEPT.),
BANGALORE-560001.
GIRIJA A
BYAHATTI
3. KARNATAKA NEERAVARI NIGAM LIMITED,
Location: HIGH
COURT OF BY ITS EXECUTIVE ENGINEER,
KARANTAKA
DHARWAD HBC DVN., ATHANI, DIST: BELGAUM-590001.
BENCH
4. THE BANK MANAGER,
AXIX BANK, OPP. BIG BAZAR,
ANAGOLA NAKA, TILAKAWADI,
BELAGAVI-590006.
5. THE BR. MANAGER,
AXIS BANK BRANCH, ARAB MOHALLA,
RAICHUR, TQ: DIST: RAICHUR-584101.
...RESPONDENTS
(BY SRI. PRAVEEN K. UPPAR, AGA FOR R1 & R2;
SRI. ARAVIND D. KULKARNI, ADV. FOR R3;
SRI. ANOOP DESHPANDE, ADV. FOR R4 & R5)
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WP No. 101251 of 2024
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
A WRIT IN THE NATURE OF CERTIORARI TO QUASH THE LETTER
DATED 27-12-2021 ISSUED BY RESPONDENT NO.1 TO RESPONDENT
NO.4 (VIDE ANNEXURE-D) FOR FREEZER OF BANK ACCOUNT OF THE
PETITIONER NO: 911020043468901 OF AXIS BANK, ARAB MOHALLA
BRANCH AT RAICHUR.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 29.08.2024, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
CAV ORDER
(PER: HON'BLE MR. JUSTICE H.P. SANDESH)
1. The petitioner in this petition has prayed this Court
to issue a writ in the nature of certiorari to quash the
letter dated 27.12.2021 issued by respondent No.1
to respondent No.4 vide Annexure-D for freezing of
the bank account of the petitioner bearing
No.911020043468901 of Axis Bank, Arab Mohalla
branch at Raichur and also issue any other writ or
order, direction as the Court deems fit in the
circumstances of the case.
2. The factual matrix of the case of the prosecution
while registering the case against the accused
persons is that;
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2.1. The respondent No.3 has sought for permission
to initiate criminal proceedings against the
accused persons alleging that the Accounts
Superintendent as well as Contractors were
indulged in preparing fake bills and siphoned
the amount of the Karnataka Neeravari Nigam
Limited in terms of Annexure-A and after
obtaining the permission, complaint is lodged in
terms of Annexure-B dated 26.11.2021. In the
said Annexure-B, allegation is made that
Rs.2,01,50,770/- was misappropriated.
2.2. Based on the complaint, the police have
registered the case in Crime No.16/2021 for the
offences punishable under Sections 403, 406,
409, 465, 468, 471 and 420 read with Section
34 of the IPC and issued FIR in terms of
Annexure-C. The Deputy Superintendent of
Police, CID, has also filed a requisition letter for
adding of additional Section 13(1)(A) read with
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Section 13(2) of the Prevention of Corruption
Act. The accused persons have been enlarged
on bail and copy of the order sheet is also
produced.
2.3. Further, a request was made by the Cyber
Crime Police Station to the Bank Manager, Axis
Bank i.e., respondent No.4 in terms of
Annexure-D, to freeze the accounts and to
provide registration details, as the same is
required for the purpose of investigation and
provide details in respect of a particular account
and the the Axis Bank has given statement of
Axis Account No.911020043468901,
particularly for a period of 01.12.2021 to
31.12.2021 as per Annexure-E.
2.4. It is the contention of the petitioner that legal
notice was given to the Police Inspector, Cyber
Crime Police Station on 19.01.2023 requesting
to withdraw the freezer of account and permit
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him to operate his account as per Annexure-F.
The Track consignment letter is also produced
as per Annexure-G for having served the same
on the concerned police. In spite of the request
made by the petitioner, his account was not
defreezed and hence he has filed the present
petition before this Court.
3. Learned counsel appearing for the petitioner would
vehemently contend that;
3.1. When the petitioner came to know about
freezing of the account, he issued a legal notice
to the Cyber Crime Police Station, since he is
not having any connection with the crime. If at
all any transaction has taken place between the
Contractors and the petitioner, all those entries
are recorded in the Axis Bank account, which
can be used for the purpose of evidence at the
time of trial against the accused and
respondent No.1 cannot freeze the entire
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operation of the current account, even though
the petitioner is not an accused and not
concerned with the crime as per the complaint
and hence Annexure-D is illegal.
3.2. It is also contended that, this Court has held in
similar circumstances that the provisions of
Section 102 of Cr.P.C. mandates that there
must be some nexus with the alleged offence
which is under investigation by the Police
Officer. In the present case, there is no nexus
with the alleged offence committed by the
accused alleged in the complaint with the
account of the petitioner and hence freezing of
the account is illegal and the same is required
to be set aside.
3.3. The respondent No.1 has seized the current
account of the petitioner without any notice to
the petitioner and the same is in violation of the
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principles of natural justice and is against
Article 21 of the Constitution of India.
3.4. The counsel also in support of his argument
relied upon Annexure-H, the order passed by
this Court in W.P.No.17240/2011 dated
21.03.2012 and brought to the notice of this
Court paragraph No.11 of the said order,
wherein discussion was made with regard to
Section 102 Cr.P.C. and an observation is made
that the Police Officer in the course of
investigation can seize or prohibit operation of
the said account, if such assets have direct link
with the commission of the offence. The
counsel also brought to the notice of this Court
the further observation made that, if the Police
Officer who has seized the bank account is
subordinate officer/incharge of the Police
Station, he shall forthwith report the seizure to
his higher officer. He should inform the
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concerned Magistrate forthwith regarding the
prohibitory order and he should also give notice
of seizure to the accused and allow him/her to
operate the bank account subject to his/her
executing bond undertaking to produce the
amount in the Court as and when required.
The counsel referring this judgment would
vehemently contend that this Court can
defreeze the account with any conditions.
4. Per contra, learned AGA appearing for the
respondent-State in his arguments would contend
that;
4.1. This petitioner is having direct link with accused
No.2 and the amount which was
misappropriated by the accused was
transferred to the account of this petitioner and
case has been registered and matter is under
investigation. He also produced remarks given
by the Investigating Officer with detailed
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statement of the petitioner and also the
accused persons for having transferred the
amount to the tune of Rs.31,13,936/- to the
account of this petitioner and investigation has
to be conducted in order to prove the
misappropriation in total to the tune of
Rs.28,35,20,806/- and the same is the total bill
amount.
4.2. It is submitted that, without carrying out any
work created the bills and transferred the
amount to different persons based on the fake
bills and hence at this stage, during the course
of investigation, the same cannot be defreezed.
4.3. Learned AGA also produced the statement of
accounts of the Karnataka Neeravari Nigam
Limited for having transferred the account to
different persons as well as cheques are
honoured and so also produced the statement
of the account of accused No.2 for the period
from 01.04.2018 to 31.05.2018 and the same
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is also evident from transferring the amount to
the account of this petitioner.
4.4. Learned AGA also produced voluntary
statement of accused No.2 and in his voluntary
statement also, the accused categorically made
a statement that he had transferred the amount
of Rs.20,00,000/- to the petitioner, an amount
of Rs.20,00,000/- to the wife of the present
petitioner and the an amount of Rs.20,00,000/-
is also transferred to the account of Neela W/o.
Deepak Mudalagi and submitted that, in order
to find out the truth with regard to siphoning of
crores of amount belonging to the respondent
No.3, at this juncture the account cannot be
defreezed.
4.5. Learned AGA also produced the bank statement
of this petitioner, which evidenced the fact that
the amount has been transferred to the account
of this petitioner and also given the details of
the amount transferred on different dates.
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4.6. Learned AGA submitting these materials on
record would submit that, still investigation has
not been completed though case was registered
in 2021, the fake bills are prepared for around
30 crores and huge materials are there for
further investigation and hence at this juncture,
the bank account of the petitioner cannot be
defreezed.
5. Having heard the petitioner's counsel, learned AGA
appearing for the respondents No.1 and 2 and also
learned counsel appearing for other respondents, and
also on perusal of the material placed on record,
Annexures - A to G and also the documents
produced by the learned AGA, this Court has to
analyse whether it is a fit case to defreeze the
account of the petitioner.
6. The main contention of the petitioner before this
Court is that, he is not the accused and also
contended that, if at all any transaction has taken
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place between the Contractors and the petitioner, all
those entries are recorded in the Axis Bank, Raichur
Branch, which can be used for the purpose of the
evidence at the time of trial against the accused and
respondent No.1 cannot freeze the entire operation
of the current account. It is also the contention of
the petitioner that, there is no nexus with the alleged
offence committed by the accused alleged in the
complaint with the account of the petitioner. It is
also the contention that the respondents have not
replied to the notice of seizure issued by the
petitioner.
7. Having considered the objections of the learned AGA
and also the petitioner is not disputing anything
about the transfer of huge amount to his account by
the accused No.2 and on perusing the documents
which have been placed before the Court, it is clearly
evident that an amount of more than Rs.20 lakhs
was transferred as alleged in the complaint. Apart
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from that, on perusal of the statement of the bank
account of this petitioner, it is clear that an amount
of Rs.32,13,936/- was transferred to the account of
this petitioner, that is on 12.04.2018 an amount of
Rs.12,43,708/-, on 17.05.2018 an amount
Rs.5,70,000/- and on 28.05.2018 an amount of
Rs.14,00,228/-. The petitioner has also not stated
anything about whether he had carried out any work
and what made accused No.2 to transfer that huge
amount to his account. The petition is very silent
about transferring of the amount and the petitioner
did not mention anything about whether he had
received the amount or not and if there was no
nexus between him and the accused, there is no
explanation as to what made one of the accused to
transfer that huge amount, except contending that
freezing of his account is illegal. No doubt the
petitioner has given notice to the police, but no reply
was given and the same cannot be a ground to
defreeze the account when the investigation is going
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on. When the investigation is taken up by the
Investigating Officer, the Court also cannot interfere
with unearthing of the crime which had taken place.
8. It is also the case of the prosecution that it was a
racket of creating fake bills and transferring the
amount from the respondent No.3 and total five
cases were registered and total amount of
Rs.28,35,20,806/- was siphoned from the account of
the respondent No.3 on creation of fake bills and the
said amount is also the public money and the State
exchequer has suffered the loss. I have already
pointed out that this petition is silent about the
transfer of the amount of Rs.32,13,936/- and if he is
not having any nexus with the accused, he would
have given explanation as to why the amount has
been transferred and for what reason the amount
has been transferred has to be investigated. It is
also the specific contention of the State that both the
accused as well as this petitioner has to be
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interrogated in order to unearth the truth and the
investigation has also not been completed. A specific
case of the respondent No.3 is also that the accused
persons have created fake bills and those bills have
also been seized. It is the case of the prosecution
that the fake bills have also to be sent to FSL and the
presence of this petitioner is also required for the
investigation and his statement also to be recorded
and for what reason such a huge amount has been
transferred is also to be interrogated. When such a
huge amount of more than Rs.28 crores has been
misappropriated and offence of criminal breach is
alleged and also some persons have indulged in
creation of fake documents and the offence of
forgery is also alleged, the offences are very severe.
If really this petitioner is not having any nexus, the
said fact has to be unearthed during the course of
investigation only. At this juncture, this Court cannot
defreeze the account as sought.
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9. This Court would like to rely upon the judgment of
the Hon'ble Apex Court in the case of State of
Maharashtra Vs. Tapas D. Neogy reported in
(1999) 7 SCC 685. In the said judgment, the
Hon'ble Apex Court discussed with regard to Section
102(1) of Cr.P.C. regarding Police Officer's power to
seize property and held bank account of accused or
his relation, constitutes 'property' and if
circumstances exist creating suspicion of commission
of any offence in relation to the bank account,
Section 102(1) of Cr.P.C. is attracted empowering
the police officer investigating the offence to seize
the bank account and issue order prohibiting the
account from being operated upon.
10. Having taken note of the principle laid down in the
said judgment, it is very clear that the Police Officer
has the power to seize any property which may be
found under circumstances creating suspicion of
commission of any offence and the bank account of
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the accused or any of his relations is the 'property'
within the meaning of Section 102(1) of Cr.P.C. and
the Police Officer during the course of investigation
can seize or prohibit operation of the said account, if
such accounts have direct link with the commission
of offence which the police officer is investigating
into. The corruption in public offices has become so
rampant that it has become difficult to cope up with
the same. Then again the time consumed by the
Courts in concluding the trials is another factor which
should be borne in mind in interpreting the
provisions of Section 102 of Cr.P.C. and the
underlying object engrafted therein, inasmuch as if
there can be no order of seizure of the bank account
of the accused then the entire money deposited in a
bank which is ultimately held in the trial to be the
outcome of the illegal gratification, could be
withdrawn by the accused and the Courts would be
powerless to get the said money which has any direct
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link with the commission of the offence committed by
the accused as a public officer.
11. In the case on hand also, it is the specific case of the
prosecution that, accused No.2 had transferred huge
amount in favour of this petitioner. I have already
pointed out that this petitioner also has not
whispered anything about transfer of the said
amount and even not denied the same. It is also the
case of the prosecution that, huge money of the
respondent No.3 - Karnataka Neeravari Nigam
Limited was siphoned by the accused persons by
creating fake documents and the said amount
belongs to the respondent No.3 - complainant and if
the said amount is got released by defreezing the
account of this petitioner, it is very difficult to get
back the amount. Hence in view of the principles laid
down in the judgment referred supra, at this
juncture, when the investigation is not yet
completed, the question of defreezing the account
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does not arise. This Court also has to take note of
the fact that the amount of more than Rs.28 crores
was siphoned from the account of the respondent
No.3 - complainant and particularly specific
allegation is made against accused No.2 that he had
misappropriated the amount of more than Rs.2
crores and out of that an amount of Rs.32,13,936/-
was transferred to the account of this petitioner.
When such being the case, it is not a fit case to
defreeze the account of the petitioner, since he has
not disputed the transfer of the amount during the
investigation.
12. In view of the discussion made above, I pass the
following:
ORDER
The writ petition is dismissed.
Sd/-
(H.P. SANDESH) JUDGE gab/CT-MCK List No.: 1 Sl No.: 88