Bombay High Court
Kamlesh M Kanungo vs Reserve Bank Of India on 8 April, 2024
Author: N. R. Borkar
Bench: Prakash D. Naik, N. R. Borkar
9-11-cwp-3249-cr-wp-st-15674-23.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 3249 OF 2023
Kamlesh M. Kanungo ...Petitioner
Versus
Reserve Bank of India & Ors. ...Respondents
AND
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION (ST) NO. 15674 OF 2023
Kamlesh M. Kanungo ...Petitioner
Versus
Union of India & Ors. ...Respondents
IN OSWP/3249/23
Mr. Devashish Godbole a/w. Mr. Prasad Nagorgoje for the
Petitioner.
Mr. Kuldeep Patil for Respondent No.3/CBI.
IN CRI.WPST/15674/23
Mr. Devashish Godbole a/w. Mr. Prasad Nagorgoje for the
Petitioner.
Mr. Kuldeep Patil for Respondent / CBI.
Ms M.M. Deshmukh, APP for the Respondent/State.
CORAM : PRAKASH D. NAIK &
N. R. BORKAR, JJ.
DATE : 08.04.2024. PC:-
1. Writ Petition No. 3249 of 2023 is listed for seeking clarification of the order dated 13.12.2023 passed by this Court, which reads as follows:
"1. The learned counsel for the Respondent No.2 seeks further time to fle Adavit-in-Reply. Time is granted.
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3. In the light of the interim orders passed in Writ Petition (L) No. 15240 of 2023, there shall be ad-interim relief in terms of prayer clauses (d) & (e)."
2. Prayer clause 'd' and 'e' of Writ Petition No. 3249 of 2023 are as follows:
"d) Pending the hearing and fnal disposal of this Petition, this Hon'ble Court be pleased to stay the efect, operation and consequential procedure thereof emanating from such categorization of 'fraud' by Respondent Banks, pursuant to the impugned circular till the fnal disposal of this Petition;
e) Pending the hearing and fnal disposal of this Petition, this Hon'ble Court be pleased to direct Respondent No.3 to stay all further proceedings emanating from such categorization of 'fraud', including but not limited to Lodging of FIR no.RC0592023 0010 registered at PS:CBI/BSFB/Mumbai under section 120-B r/w 420, 468, 471 of Indian Penal Code, 1860 along with section 13(2) r/w 13(1)(d) of Prevention and Corruption ct, 1988 on 12.07.2022;
3. Learned Special P.P. Mr. Patil appearing for the respondent/CBI submitted that by granting prayer clause "e" in Writ Petition No.3249 of 2023, the respondent/CBI is facing difculty in filing the appropriate report before competent Court. The investigation is on the verge of completion and the respondent/CBI contemplates to file final report. The order dated 19.6.2023 passed by the coordinate bench in Writ Petition (L) No. 15240 of 2023 does not refrain the CBI from investigating the FIR. On receipt of complaint by CBI, the FIR was registered as the cognisable ofence was made out.
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4. The petitioner has preferred Criminal Writ Petition (St) No.15674 of 2023 challenging the FIR dated 28.06.2023 and the respondent/CBI had filed reply in the said petition contending that the investigation is not based on Master Circular.
5. Learned Advocate for the petitioner submitted that paragraph 12 of the order dated 19.6.2023 passed in Writ Petition (L) No.15240 of 2023 which has been relied upon while passing the interim order dated 13.12.2023 records that the observations refected in the said order that it does not interfere in the investigation and the FIR investigated by the CBI was based on the fact that the FIRs were registered dehors the Master Circular. The present FIR is based on the Master Circular. The petitioner has separately challenged the FIR by preferring Writ Petition (St) No. 15674 of 2023. The basis of investigation in the FIR which is under challenge in the aforesaid petition is Master Circular. The investigation on such Circular would not sustain in light of observations in order dated 13.12.2023. Paragraph 5 of the order dated 19.6.2023 also refers to the fact that the action was taken without following principles of natural justice and afording opportunity of hearing to the parties. The impugned FIR was registered without giving opportunity of hearing to the petitioner. It is further submitted that in the FIR itself, there is reference to the fact that the NPA Account has been declared as fraud from the date of declaration and therefore, there is no necessity of any clarification in the order dated 13.12.2023.
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6. Paragraph 12 of the order dated 19.6.2023 passed by the coordinate bench in Writ Petition (L) No. 15240 of 2023 reads as follows:
"12. We clarify that where the Central Bureau of Investigation ("CBI") is involved and there are criminal proceedings that are ongoing, our order is not to be construed as interfering with those proceedings. Those will continue on merits. This is, of course, on the basis that the CBI proceedings are based on FIRs which are dehors the Master Circular. The Supreme Court decision clearly states that no hearing is necessary before fling of FIRs, even if the charge is of fraud accounts. In other words, the investigating agencies are at liberty to fle and proceed with FIRs without reference to any fndings by the bank under the Master Circular in question. Equally, all remedies available in law to private parties remain unafected by this order and may be pursued."
7. In the afdavit in reply filed by CBI/respondent in Criminal Writ Petition (St) No. 15674 of 2023, it is stated that the investigation of this case is at advanced stage and at the verge of completion. The allegations in the complaint constitute ofence under Section 120-cB read with 403 and 420 of the IPC, Section 13(2) read with 13 (1)(d) of Prevention of Corruption Act and that CBI registers any bank fraud case upon the complaint received from the bank and thereafter duly getting verified from its competent ofcer. Based on the complaint and the verification report, the FIR is registered. The verification is conducted confidentially and it is not made part of FIR. After registration of FIR by CBI, the investigation is ensued. During course of investigation, the evidences are collected either in the form of oral or documentary or material and based on the evidence, CBI files its final report in the competent court. It is Dinesh S. Sherla 4/5 ::: Uploaded on - 15/04/2024 ::: Downloaded on - 26/04/2024 10:09:22 ::: 9-11-cwp-3249-cr-wp-st-15674-23.doc pertinent to note that the investigation has travelled to advance stage and as contended by respondent/CBI the appropriate report will be filed.
8. Since the petitioner has also challenged the FIR, we are refraining from making any observations on merits of the case, however, since this Court relied upon the order dated 19.6.2023 while granting relief in Writ Petition No. 3249 of 2023 vide order dated 13.12.2023, we clarify that the said interim order in terms of prayer clause (e) of the petition granting stay to investigation in relation to FIR stands recalled and hence, there is no restraint on CBI from completing the investigation and filing an appropriate report before the Court concerned.
9. The petitioner will be at liberty to seek appropriate relief in Criminal Writ Petition (St) No.15674 of 2023 challenging the FIR.
10. The interim relief in terms of prayer clause 'd' in Writ Petition No.3249 of 2023 shall continue until further orders.
11. Stand over to 16.4.2024.
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