Madras High Court
M/S.Richy Health Care Pvt Ltd vs State on 14 July, 2022
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
Crl. O.P. No. 13939 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 14/7/2022
CORAM
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
Crl. O.P. No.13939 of 2022
M/s.Richy Health Care Pvt Ltd
rep. By its Partner
Dr. Amit Ajgaonkar
Parth Business Plaza
Off Link Road, Mith Chowki
Marve Road
Malad (W)
Mumbai 400 064. ... Petitioner
Vs
1. State
rep. By The Inspector of Police
E 9 Thalambur Police Station
CCB Tambaram
Navalur
Chennai 600 130.
2. The Manager
HDFC Bank Ltd
Shop No.8 Ground Floor
Bhagar Grandeur, New Link Road
Opp Infiniti Mall, Mallad West
Mumbai 400 064.
3. K. V. Sridharan ... Respondents
(R.3 impleaded as per order made in Crl.M.P.No.8451 of 2022
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https://www.mhc.tn.gov.in/judis
Crl. O.P. No. 13939 of 2022
in Crl.O.P.No.13939 of 2022 dated 30/6/2022.
PRAYER : Criminal Original Petition filed under Section 482 of Cr.P.C. to
direct the first respondent to defreeze the Current Account No.50200037515777,
HDFC Bank, Malad West Branch, Mumbai 400 064 of the petitioner maintained
by the second respondent which was frozen in connection with FIR in Crime
No.119 of 2022 on the file of the first respondent.
For Petitioners ... Mr.N.Chandrasekaran
for Mr.K.Kannan
For respondents ... Mr.Leonard Arul Joseph Selvam
Government Advocate
(Criminal Side)
for R.1
No appearance for R.2.
Mr.N.Baaskaran
for R.3.
-----
ORDER
This Criminal Original Petition has been filed to direct the first respondent to defreeze the Current Account No.50200037515777, HDFC Bank, Malad West Branch, Mumbai 400 064 of the petitioner, maintained by the second respondent, which was frozen in connection with FIR in Crime No.119 of 2022, on the file of Page No:2/10 https://www.mhc.tn.gov.in/judis Crl. O.P. No. 13939 of 2022 the first respondent.
2. Brief facts of the case are as follows:-
The petitioner Company is engaged in the business of hospital activities, viz., general and specialised hospitals, sanatoria, rehabilitation centres and other health institutions. Representatives of the petitioner visited Tamil Nadu, for the purpose of starting health care project, at Chennai. The accused party approached the petitioner and arranged a sum of Rs.9 crores, in the name of M/s.EESAA Constructions Pvt Ltd., Chennai, and issued two Demand Drafts as an advance. When the demand drafts were encashed by the defacto complainant, on 1/3/2022, at the instruction of the petitioner, on 4/3/2022, ICICI Bank reverted the funds. Thereafter, there is no connection between the petitioner and defacto complainant. In the meantime, the defacto complainant transferred Rs.9 crores to the petitioner, as commission.
3. In the above back drop, the defacto complainant lodged a complaint, in F.I.R in Crime No.119 of 2022, dated 27/4/2022, before the respondent Police, for the offences punishable, under Sections 409, 420, 465, 467, 471 and 120 B Page No:3/10 https://www.mhc.tn.gov.in/judis Crl. O.P. No. 13939 of 2022 of the Indian Penal Code against Mr.Lydia Ryan, Katchi Manoj, Mohan, Thanikachalam and JIM Forex.
4. Heard Mr.N.Chandrasekaran, learned counsel for the petitioner, Mr.Leonard Arul Joseph Selvam, learned Government Advocate for the first respondent and Mr.N.Baaskaran, learned counsel for the third respondent.
5. There is no representation on behalf of the second respondent.
6. The learned counsel appearing for the petitioner submitted that the name of the petitioner is not figured in the First Information Report. He just entered into a contract with the defacto complainant and cancelled the contract, at a later stage. This itself proves that there is no role played by the petitioner. Moreover, the first respondent Police, without any evidence or proper investigation and also not complying with Section 102 of the Code of Criminal Procedure, frozen the account of the petitioner in HDFC Bank Ltd., Malad West Branch, Mumbai.
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7. The learned counsel appearing for the defacto complainant/third respondent submitted that the petitioner has approached the defacto complainant for his business purpose and A.3 in turn introduced A.1. He also submitted that they all induced the petitioner to part with 6 crores and 25 lakhs. After depositing the commission amount, D.D will be cancelled immediately.
8. The learned Government Advocate (Criminal Side) submitted that though this petitioner was not arrayed as an accused, he had played his role in entirety. He further submitted that the petitioner had taken the Demand Draft for eight times and subsequently cancelled, for the reasons best known to him.
9. The Investigation Officer, EDF/FIW, Central Crime Branch, Tambaram City Police, Sholinganallur, Chennai 119, in Serial No.9 of 2022, issued Police notice, under Section 41 (A) of the Code of Criminal Procedure, to appear on 15/6/2022 at 11.00 a.m. However, the petitioner is not cooperating with the Police. Hence he prays to dismiss the instant Criminal Original Petition.
10. To substantiate his case, the learned Government Advocate (Criminal Page No:5/10 https://www.mhc.tn.gov.in/judis Crl. O.P. No. 13939 of 2022 Side) produced the bank statement of the petitioner, wherein it is proved that the petitioner had taken D.D for various amounts, on eight occasions and cancelled the same subsequently. Hence, the petitioner had committed huge fraud and the modus operandi of the petitioner is to issue Demand Drafts to the persons, who are in need of money. After receiving the commission in their accounts, they are cancelling the Demand Drafts. He also submitted that intimation for freezing the account was also sent to the concerned Magistrate by the investigation agency. Hence opposed for the relief sought for by the petitioner.
11. The learned counsel appearing for the petitioner produced a judgment rendered by the Hon'ble Supreme Court in M.T.ENRICA LEXIE AND ANOTHER Vs. DORAMMA AND OTHERS (2012) 6 Supreme Court Cases 760, wherein the Hon'ble Apex Court has held that property not suspected of commission of the offence which is being investigated into by the Police Officer cannot be seized. The above judgment is not applicable to the case on hand for the reason that the judgment cited by the learned counsel for the petitioner is with regard to the seizure of the ship.
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12. From the materials available on record, it would indicate that A.1, A.2 and the petitioner were present, when the D.D was handed over to the Bank. Admittedly, in the case on hand, the investigation officer has sent intimation for freezing the account to the concerned Magistrate. Copy of the same is also produced before this Court.
13. Before we deal with the matter further, it is relevant to extract Section 102 of the Code of Criminal Procedure.
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.
Page No:7/10 https://www.mhc.tn.gov.in/judis Crl. O.P. No. 13939 of 2022 (3). Every Police Officer acting under sub-Section (1) shall forthwith report the seizure to the Magistrate having 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 Page No:8/10 https://www.mhc.tn.gov.in/judis Crl. O.P. No. 13939 of 2022 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.”
14. In the case on hand, seizure report was sent to the Magistrate. The very allegation against the petitioner is that they make others to believe that the petitioner and others are in a capacity to mobilize the funds. After producing the Demand Draft to the banks, the petitioner will insist the person, who are with dire needs of funds, to deposit certain amount in the petitioner's account, as commission. After receiving the commission amount, the petitioner is cancelling the Demand Draft. It is very shocking to know that the petitioner had received more than 100 crores, from different people.
15. Considering the facts and circumstances of the case and also considering the seriousness of the offence committed by the petitioner, this Court is not inclined to grant the relief as sought for by the petitioner and accordingly, Page No:9/10 https://www.mhc.tn.gov.in/judis Crl. O.P. No. 13939 of 2022 this Criminal Original Petition is dismissed. The Investigation Officer, shall proceed with the investigation and file a final report as expeditiously as possible.
14/7/2022 Index : Yes / No Internet: Yes Speaking/non speaking order mvs.
N. SATHISH KUMAR, J mvs.
To
1. The Inspector of Police E 9 Thalambur Police Station CCB Tambaram Navalur Chennai 600 130.
2. The Public Prosecutor Madras High Court.
Crl. O.P. No. 13939 of 2022 Page No:10/10 https://www.mhc.tn.gov.in/judis Crl. O.P. No. 13939 of 2022 14/7/2022 Page No:11/10 https://www.mhc.tn.gov.in/judis