Andhra Pradesh High Court - Amravati
M/S. Design Tech Systems Pvt.Ltd., vs The State Of Andhra Pradesh on 7 December, 2022
Author: U.Durga Prasad Rao
Bench: U.Durga Prasad Rao
HON'BL SRI JUSTICE U. DURGA PRASAD RAO
AND
HON'BLE SRI JUSTICE B.V.L.N CHAKRAVARTHI
CRLP No.3119 of 2022
AND
CRL.RC No.301 of 2022
COMMON ORDER:(Per Hon'ble Sri Justice U. Durga Prasad Rao) CRLP No.3119/2022 is filed under Section 482 Cr.P.C by the petitioner/Accused No.4 in Crime No.29/2021 of CID PS, Mangalagiri, Andhra Pradesh registered for the offences U/s 120(B), 166, 167, 148 , 420, 465, 468, 471, 409, 201, 109 r/w 34 and 37 IPC and Section 13(2) r/w 13(1)(c) and (d) of Prevention of Corruption Act, 1988.
Whereas Criminal RC No.301/2022 is filed by the DSP, CID, EOW-II, Mangalagiri, Andhra Pradesh.
Both the above petitions are filed against the order dated 18.04.2022 in Criminal MP No.55/2022 in Crime No.29/CID-EOW- II/2021 passed by learned Special Judge for SPE&ACB cases-cum- Additional Metropolitan Magistrate, Vijayawada. 2
2. The matrix of the case is thus:
(a) The Government of Andhra Pradesh accorded permission to Andhra Pradesh State Skill Development Corporation (for short 'APSSDC') to enter into an MoU with Siemens Industry Software (India) P Ltd., (Accused No.6) and Design Tech, Pune (Accused No.4) for setting up of six Clusters (each Cluster contained 1 Centre of Excellence and 6 Technical Skill Development Centers) throughout the State of Andhra Pradesh ("Agreement"). Accordingly, agreement was entered. As per the Agreement, SIEMENS had to contribute 90% of the Project cost as Grant-in-Aid and the remaining 10% was to be contributed by the Government of Andhra Pradesh. The total cost of the project is Rs.3281,05,13,448/- and 10% of AP Government contribution comes to Rs.371,25,00,000/- including taxes.
(b) While so, the Chairman, APSSDC submitted a report date 07.09.2021 to the Additional Director General, Crime Investigation Department, Andhra Pradesh alleging that the APSSDC in order to conduct a Forensic Audit engaged M/s Sharath and Associates, Chartered Accountants, Forensic Audit Firm and the said firm conducted enquiry and submitted a report which revealed that the 3 accused have hatched criminal conspiracy to commit criminal breach of trust, and misappropriation of Government funds in violation of the direction of law, and some public servants created incorrect documents to commit cheating and forgery with a fraudulent intention to divert the Government funds and accordingly diverted the public funds through associate shell companies of the accused persons and caused huge wrongful loss to the tune of 371 Crores which amount was deposited by the Andhra Pradesh Government towards its 10% contribution.
Accordingly, Crime No.29/2021 was registered against 26 accused and investigated into.
(c) While so during the course of investigation the DSP, EOW- II, CID, Mangalagiri, Andhra Pradesh issued notice under Section 102 Cr.P.C to the Branch Manager, Commercial Branch, State Bank of India, Pune requesting to freeze the account bearing No.38036630496 belonging to accused No.4 and not to allow any more operations/transaction in the said account and accordingly, the said account was freezed.
(d) Aggrieved, the accused No.4 filed Criminal MP No.55/2022 U/s 451 and 457 of Cr.P.Cin the Court of Special Judge for SPE and 4 ACB cases-cum-Additional Metropolitan Magistrate Court, Vijayawada to issue direction to defreeze the account.
(d) The respondent/DSP, CID filed counter and opposed the Crl.MP No.55/2022.
(e) Learned trial Judge heard both the parties. As can be seen, the main contention of the petitioner/A4 is that the amount lying in the freezed bank account was received by the petitioner during the course of business transactions but it does not relate to the crime. Further, the amounts were deposited in the said bank account only subsequent to the freezing of the account and those amounts were deposited by the different companies in connection with its business transactions with the petitioner. The petitioner company meets salaries and other operative expenditure of its staff and establishment containing more than 1000 employees through the said bank account and due to its freezer the petitioner is facing much hardship. Whereas, the contention of the investigating agency in its counter and rejoinders is to the effect that the petitioner originally operated 31 bank accounts which were later closed except the freezed account and an amount of Rs.240 crores was transferred from the account bearing No.649305050525 of ICICI 5 Bank Account of the petitioner/A4 to the Axis Bank Account Bearing No.915020039795365 of M/s PVSP IT Skill Projects Pvt Ltd/A5and out of the same, an amount of Rs.26,78,14,774/- was transferred back to the account No.649305050525 of ICICI Bank Account of the petitioner/A4 on 15.09.2016 from the Axis Bank Account of the A5 and on closure of ICICI bank account No.649305050525, the amount lying in that account was transferred to the freezed bank account of the petitioner/A4 and therefore the said amount related to the crime but it was merged with the company's money which has to be finalized after completion of the investigation.
(f) Upon hearing the above respective contentions and perusal of the material, the trial Court prima facie opined that an amount of Rs.26,78,14,774/- was transferred back from A5 to the ICICI bank of the petitioner/A4 and same was again transferred to the seized account of the petitioner/A4 and those transactions raise suspicion of fraud. The trial Court then taking into consideration the submission of the petitioner that salaries and other operative expenditure have to be incurred through the seized account, passed the following order: 6
"1) The Manager, State Bank of India, Commercial Branch, Sadashivapet, Tilak Road, Pune is directed to keep the amount of Rs.23,29,77,675/- from the Account No.38036630496 relating to the petitioner/A4 company in Fixed Deposit for a term of one year subject to renewal in the name of Special Judge for SPE & ACB Cases-cum-
III Addl. District Judge, Vijayawada, Andhra Pradesh and send the same to this Court. The said FDR shall continue till further orders.
2) After making the Fixed Deposit, the Manager of the Bank shall defreeze the Account No.38036630496 relating to the Petitioner/A4 company and allow the petitioner/A4 company to operate the said Bank Account.
3) The petitioner/A4 company shall furnish the statement of account relating to its SBI Account No.38036630496 with any supporting documents explaining the st transactions in the account on 1 date of every month to the Investigating Agency and also shall furnish whenever documents required by the Investigating Officer, till further orders."
(g) Aggrieved by the above order, petitioner/A4 filed Crlp.No.3119/2022 U/s 482 of Cr.P.C whereas the DSP, CID filed Crl.RC No.301/2022 U/s 397 and 401 of Cr.P.C. Both the matters have come up for hearing before a learned single Judge (Hon'ble Sri Justice D. Ramesh). So far as Crl.P.No.3119/2022 is concerned, the 7 respondent therein raised an objection with regard to the maintainability of petition U/s 482 Cr.P.C in view of availability of alternative remedy of revision U/s 397 Cr.P.C. To buttress his contention, the respondent relied upon the order dated 21.12.2021 in Crl.P.No.185/2021 passed by another learned single Judge of this Court (Hon'ble Sri Justice Ch. Manavendranath Roy).
(h) The learned Judge heard arguments of both sides on the maintainability of Criminal Petition No.3119/2022. The petitioner in support of his contention that in spite of availability of the revisional jurisdiction U/s 397 Cr.P.C, this Court can entertain the petition U/s 482 Cr.P.C, placed reliance on several judgments including the judgment of Hon'ble Apex Court in Prabhu Chawla v. State of Rajasthan1. The petitioner contended that in exceptional circumstances and to prevent abuse of process of Court, this Court can exercise its plenary power U/s 482 Cr.P.C in spite of availability of the relief of revision. The petitioner seemingly argued that at the time of freezing of petitioner's bank account U/s 102 Cr.P.C, only two crores were available in the said account. Subsequently, the petitioner 1 (2016) 16 SCC 30 8 received amounts from various business clients to the said account to a tune of Rs.23,29,77,695/- which amounts have nothing to do with the alleged crime and the investigating agency also could not produce any semblance of evidence to connect those amounts to the crime. Despite the same, the trial Court has erroneously directed to keep the said amount of Rs.23,29,77,695/- in FD and the said order is contrary to the record and law. It was argued, treating the said order as abuse of process of Court and also as an extraordinary circumstance, this Court can entertain the Crl.P U/s 482 Cr.P.C. Considering the respective contentions learned single Judge passed the following order and sought to refer the matter to the division bench for fresh consideration:
"15. Considering the submissions and on perusal of the various judgments of the Hon'ble Apex Court and also order of this Court in Criminal Petition No.185 of 2021, this Court is not in consonance with the findings of the above said criminal petition. The Hon'ble Apex Court has held that by virtue of having a provision under Section 397 Cr.P.C is not a bar to maintain the petitioner under Section 482 Cr.P.C in exceptional cases but without considering the said observations, in the above matter, the Court held that the criminal petition is not maintainable under Section 482 Cr.P.C, in view of the bar under Section 397(2) Cr.P.C.9
16. In view of the findings made by the Hon'ble Apex Court, this Court intends to refer the matter to the Division Bench for fresh consideration. Hence, Registry is directed to post the criminal petition to the Division Bench after obtaining orders from the Hon'ble The Chief Justice.
17. In view of referring of the criminal petition to the Division Bench, as the issue in criminal revision case is also the same, the criminal revision case also may be posted to the Division Bench after obtaining orders from the Hon'ble The Chief Justice."
Later by order dated 26.08.2022 of the Hon'ble The Chief Justice, both the above matters are posted before this bench.
3. It should be noted that though learned single Judge did not specifically formulate any legal point for reference to the division bench, however his order manifests the following legal point:
Whether the availability of relief of revision U/s 397 Cr.P.C bars the inherent power of the High Court U/s 482 Cr.P.C ?
4. REFERENCE POINT: We heard the arguments of learned Senior Counsel Sri B. Adinarayana Rao appearing on behalf of learned counsel for the petitioner and Sri T.M.K. Chaitanya, learned Standing Counsel-cum-Special Public Prosecutor for CID and gave our anxious consideration. At the outset, it must be said that the issue is no more res integra. Earlier, in the light of conflicting views expressed by two 10 division benches of Apex Court, the matter was referred to a larger bench in the case of Prabhu Chawla v. State of Rajasthan (1 supra). In expatiation, in Dhariwal Tobacco Products Ltd. V. State of Maharashtra's2 case, a division bench of Apex Court concurred with the proposition of law that availability of alternative remedy of Criminal Revision U/s 397 Cr.P.C by itself cannot be a ground to dismiss an application U/s 482 Cr.P.C. However, later, another division bench of the Apex Court in the case of Mohit v. State of U.P3 held to the contrary that when an order under assail is not interlocutory in nature and is amenable to the revisional jurisdiction of the High Court, then there should be a bar in invoking the inherent jurisdiction of the High Court U/s 482 Cr.P.C. In view of such apparent conflict, the matter was referred to a larger bench in Prabhu Chawla (1 supra). The larger bench upon considering several judgments has held as follows:
"6. In our considered view any attempt to explain the law further as regards the issue relating to inherent power of High Court Under Section 482 Code of Criminal Procedure is unwarranted. We 2 2009 (2) SCC 370 3 2013 (7) SCC 789 11 would simply reiterate that Section 482 begins with a non-obstante Clause to state:
"482. Saving of inherent powers of High Court:-Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
A fortiori, there can be no total ban on the exercise of such wholesome jurisdiction where, in the words of Krishna Iyer, J.
"abuse of the process of the Court or other extraordinary situation excites the court's jurisdiction. The limitation is self-restraint, nothing more."
We venture to add a further reason in support. Since Section 397 Code of Criminal Procedure is attracted against all orders other than interlocutory, a contrary view would limit the availability of inherent powers Under Section 482 Code of Criminal Procedure only to petty interlocutory orders! A situation wholly unwarranted and undesirable.
7. As a sequel, we are constrained to hold that the Division Bench, particularly in paragraph 28, in the case of Mohit alias Sonu and Anr.[(2013) 7 SCC 789] in respect of inherent power of the High Court in Section 482 of the Code of Criminal Procedure does not state the law correctly. We record our respectful disagreement."
5. Thus from the above jurisprudential exposition, it is clear that despite the availability of the relief of revision U/s 397 Cr.P.C, the 12 inherent power U/s 482 Cr.P.C can be invoked when there is a manifest abuse of the process of the Court or other extraordinary situation. In the light of above principle, when we turned to the order in Crl.P.NO.185/2021, learned single Judge while referring the principle laid down in Prabhu Chawla's case (1 supra), has only observed that the case before him was not arising out of such exceptional circumstances nor there was a situation of abuse of process of the Court so as to entertain the petition U/s 482 Cr.P.C. Thus on facts, learned single Judge in Crl.P.No.185/2021 expressed his reluctance to entertain the petition U/s 482 Cr.P.C and ultimately dismissed the petition. It must be reiterated that it is not without considering the observations in Prabhu Chawla's (1 supra) case that the learned Judge dismissed the Crl.P.No.185/2021 as opined by the other learned Judge in his common order dated 12.08.2022 in Crl.P.No.3119/2022 and Crl.RC.No.301/2022. On the other hand, the learned Judge in Crl.P.No.185/2021 has only held that the case before him does not project any exceptional circumstances nor it was a case of abuse of process of the Court.
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6. Be that as it may, in the light of the exposition of the Apex Court in Prabhu Chawla's (1 supra) case, we answer the reference point to the effect that in spite of the availability of the relief of revision U/s 397 Cr.P.C, the inherent power U/s 482 Cr.P.C can be exercised by this Court when there is a manifest abuse of the process of the Court or the presence of other extraordinary situations.
7. Accordingly, we remit the Crl.P.No.3119/2022 and Crl.RC No.301/2022 to the learned single Judge for disposal on merits in the light of above clarification. The Registry shall post the cases before the learned single Judge.
_________________________ U.DURGA PRASAD RAO, J __________________________ B.V.L.N CHAKRAVARTHI, J 07.12.2022 krk 14 HON'BL SRI JUSTICE U. DURGA PRASAD RAO AND HON'BLE SRI JUSTICE B.V.L.N CHAKRAVARTHI CRLP No.3119 of 2022 AND CRL.RC No.301 of 2022 07th December, 2022 krk