Karnataka High Court
India Awake For Transparency vs The Director on 21 January, 2021
Author: P.S.Dinesh Kumar
Bench: P.S. Dinesh Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
WRIT PETITION No.12073 OF 2020 (GM-RES)
BETWEEN :
INDIA AWAKE FOR TRANSPARENCY
REP. BY P. SADANAND
AUTHORISED SIGNATORY
SHRISTHI CRESCENDO
24, DESIKA ROAD
MYLAPORE, CHENNAI-600 004 ... PETITIONER
(BY SHRI. R. SUBRAMANIAN, ADVOCATE)
AND :
1. THE DIRECTOR
DIRECTORATE OF ENFORCEMENT
6TH FLOOR, LOK NAYAK BHAWAN
KHAN MARKET
NEW DELHI-110 003
2. MR. AZIM H. PREMJI
SURVEY NO.574
DODDAKANNELI VILLAGE
SARJAPUR ROAD
BENGALURU-560 035
3. MRS. YASEEM AZIM PREMJI
SURVEY NO.574
DODDAKANNELI VILLAGE
SARJAPUR ROAD
BENGALURU-560 035
4. MR. PAGALTHIVARTHI SRINIVASAN
NO.524, 16TH CROSS
INDIRANAGAR
II STAGE
BENGALURU-560 038
2
5. M/S HASHAM INVESTMENT AND
TRADING COMPANY PVT. LTD
REP. BY MR AZIM H. PREMJI
DIRECTOR
NO.134, NEXT TO WIPRO
CORPORATE OFFICE
DODDAKANNELLI
SARJAPUR ROAD
BENGALURU-560 035 ... RESPONDENTS
(BY SHRI. P. PRASANNA KUMAR, ADVOCATE FOR R1;
SHRI. C.V. GANESH, SENIOR ADVOCATE FOR
SHRI. SANDEEP HUILGOL, ADVOCATE FOR R4;
SHRI. S. GANESH, SENIOR ADVOCATE FOR
SHRI. SANDEEP HUILGOL, ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-1 TO FORTHWITH
REGISTER A CASE FOR OFFENCES IN RESPECT OF THE OFFENCE OF MONEY
LAUNDERING ARISING OUT OF THE SCHEDULE OFFENCES SET OUT IN
SPECIAL CASE 69/2020 ON THE FILE OF THE LD XXIII ADDITIONAL CITY
CIVIL AND SESSION JUDGE BENGALURU AND SPECIAL COURT FOR PC ACT
OFFENCES BENGALURU BASED ON THE INFORMATION DATED 31.01.2020
FURNISHED BY THE PETITIONER UNDER ANNEXURE-E ETC.
THIS WRIT PETITION, HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 13.01.2021, COMING ON FOR PRONOUNCEMENT OF ORDERS
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:-
ORDER
Heard Shri R. Subramanian, learned advocate for the petitioner, Shri. C.V.Nagesh, learned Senior Advocate for respondent No.4 and Shri S. Ganesh, learned Senior Advocate for respondent No.5.
2. Learned Senior Advocates for respondents raised a preliminary objection with regard to maintainability of this writ 3 petition. Among various grounds, they submitted that petitioner has filed a public interest litigation registered as W.P.No.3635/2020 with a prayer inter alia for a writ of mandamus and to direct respondents No.1 to 10 therein to constitute a multi disciplinary investigation team to investigate and prosecute Shri.A.H.Premji (respondent No.11 therein) and his associates for the offences alleged to have been committed by them, set out in its representations dated January 30, 2020 and February 3, 2020 submitted to respondents No.1 to 6 therein. They submitted that Director, Enforcement Directorate, respondent No.1 herein was respondent No.7 in the PIL.
3. In this writ petition, petitioner has inter alia prayed for a direction against Director of Enforcement to register a case of money laundering arising out of scheduled offences set out in Special Case No.69/2020 on the file of learned XXIII Additional City Civil and Sessions Judge, Bengaluru based on the information given by petitioner in its representation dated January 31, 2020.
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4. Shri. Nagesh, learned Senior Advocate made following submissions:
x Petitioner has unconditionally withdrawn the PIL. Therefore, this petition is not maintainable on the ground of public policy as held in Sarguja Transport Service Vs. State Transport Appellate Tribunal1;
x Petitioner has an alternative and efficacious remedy to approach the Special Judge and it has already filed PCR No.38/2020 before the XXI Additional City Civil and Sessions Judge, Bengaluru under Section 190(1)(c) and Section 156(3) of the Code of Criminal Procedure and the same is pending;
x Petitioner has filed PCRs No.2/2018, 3/2018 & 4/2018 before XXIII Additional City Civil and Sessions Judge, Bengaluru against Mr. Azim Prem ji and four others; and the said Court vide order dated January 27, 2020 has issued process by registering all three complaints as consolidated Special Case No.69/2020. The said order was challenged before this Court in Criminal Petitions and the same have been dismissed by a common order dated May 15, 2020. The said common order has been challenged in S.L.P. (Criminal) Nos. 2588-2590/2020 1 (1987)1 SCC 5 5 and the Apex Court has stayed the proceedings before the Trial Court;
x Petitioner's firm is not in existence. The Regional Director, Ministry of Corporate Affairs, Chennai vide order dated August 17, 2018 in proceedings under Section 8(6) of the Companies Act, 2013 has revoked petitioner's licence and directed it to convert itself into a 'Non-Section 8' Company within 30 days therefrom and to add 'Private Limited' to its name. Petitioner has not disclosed the legal status in the writ petition; x The Board of Directors of petitioner vide resolution dated July 1, 2015 has resolved authorizing Shri. R.Subramanian, learned Advocate appearing for petitioner, to act on behalf of the Company and to do all acts in furtherance of its main object. Therefore, Mr. R.Subramanian cannot act as petitioner's Advocate; x This Court in Company petition No.182/2014, vide order dated March 26, 2015 has sanctioned the amalgamation of four Companies namely Hasham Investment and Trading Company Pvt. Ltd., Vidya Investment and Trading Company Pvt. Ltd., Regal Investment and Trading Company Pvt. Ltd. and Napean Trading and Investment Company Pvt. Ltd. Petitioner represented by Mr.R.Subramanian has filed a Company Application in 6 the Company petition with a prayer to set-aside the amalgamation order passed by this Court;
5. Shri. Ganesh, learned Senior Advocate made following submissions:
x Relief under Article 226 of Constitution of India is discretionary in nature;
x Petitioner has argued the PIL on five occasions. On the last date, hearing was for about 50 minutes and he withdrew the PIL unconditionally when the Bench observed that PIL would be dismissed with exemplary cost;
x Shri. Subramanian, learned Advocate for petitioner has admitted during the hearing of W.P. No. 11482/2020 before a coordinate Bench of this Court that petitioner has filed cases only against Azim Prem Ji Group.
6. Shri. Ganesh submitted that he stands by the above two submissions and urged that the same may be placed on record as they are significant and shall have some ramification. In addition to the above, Shri. Ganesh submitted that after withdrawal of PIL, this writ petition is not maintainable on the ground of public policy. 7
7. In reply, Shri. Subramanian, at the out-set denied the submission of Shri. Ganesh that on October 1, 2020, the PIL was heard for about 50 minutes and that he had offered to withdraw when it was expressed that PIL would be dismissed with exemplary cost.
8. Shri. Subramanian submitted that this writ petition is maintainable independent of dismissal of PIL.
9. Adverting to Section 44 of the Prevention of Money Laundering Act, 2002('PML Act' for short), Shri. Subramanian submitted that stay of trial by the Apex Court in Special Case No.69/2020 does not wipe out the offences committed by the private respondents. Therefore, this writ petition is maintainable.
10. Shri. Subramanian further submitted that the case involves siphoning of about Rs.31342 crores and petitioner has been pursuing the matter with first respondent since one year and the first respondent has not taken any action. 8
11. With regard to submissions touching upon his propriety as petitioner's Advocate, Shri. Subramanian submitted that he has been practicing as an Advocate since 2015.
12. I have carefully considered rival contentions and perused the records.
13. In the PIL, Director of Enforcement was arrayed as respondent No.7. As recorded hereinabove, petitioner had sought for a direction against respondents No. 1 to 10 therein to constitute a multi-Disciplinary Team to investigate and prosecute Mr. Azim Premji and his associates. Prayer clause
(i) in this writ petition is for a direction against the Enforcement Directorate to register a case for offences of money laundering arising out of the scheduled offences in Special Case No.69/2020. The trial of the said case has been stayed by the Hon'ble Supreme Court of India. 9
14. In Sakiri Vasu Vs. State of Uttar Pradesh and others2, relied upon by Shri. Nagesh, the Apex Court has held that when some one has a grievance that his FIR has not been registered and he rushes to High Court with a writ petition or a petition under Section 482 Cr.P.C., High Court should not encourage this practice and ordinarily refuse to interfere in such matters and relegate the petitioner to his alternative remedy.
15. Admittedly, as averred in paragraph No.20 of this writ petition, petitioner has filed a petition under Section 190(1)(c) read with Section 156(3) of Code of Criminal Procedure before the Special PMLA Court.
16. This Court, after considering the rival contentions and the authorities in Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P.Gwalior and others3 and Sheonandan Paswan Vs. State of Bihar and others4 in W.P. No.13838/2020 filed by the petitioner herein, has held 2 (2008) 2 SCC 409 3 (1987)1 SCC 5 4 (1987)1 SCC 288 10 that the said writ petition was not maintainable on the ground of public policy.
17. The ratio in the case of Sarguja is fully applicable to the facts of this case also.
18. In view of the above, the preliminary objection raised by learned Senior Advocates for private respondents that this writ petition is not maintainable on the ground of public policy is sustained. Resultantly, writ petition stands dismissed.
No costs.
Sd/-
JUDGE SPS