Karnataka High Court
Mr Manoj Thandaserry Dharman vs Union Of India on 29 April, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 17.03.2025
Pronounced on : 29.04.2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF APRIL, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.2632 OF 2025 (GM-RES)
BETWEEN:
MR. MANOJ THANDASERRY DHARMAN
AGED ABOUT 56 YEARS
S/O DHARMAN
R/AT VIHAR LAYOUT
1-189/D, SOWPARNIKA
NAVAGIRINAGAR, HOSBETTU
SURATHKAL, MANGALRUU, S.K. - 575 014.
... PETITIONER
(BY SRI P.P.HEGDE, SR. ADVOCATE FOR
SRI GANAPATHI BHAT, ADVOCATE)
AND:
1. UNION OF INDIA
MINISTRY OF EXTERNAL AFFAIRS
REPRESENTED BY ITS SECRETARY
NEW DELHI - 110 001.
2. THE CENTRAL BUREAU OF INVESTIGATION
(REP. BY ITS DIRECTOR)
NATIONAL CENTRAL BUREAU [INTERPOL]
2
PLOT NO.5-B, 6TH FLOOR
A-WING, CGO COMPLEX
LODHI ROAD, NEW DELHI - 110 003.
3. BUREAU OF IMMIGARATION
MINISTRY OF HOME AFFAIRS
GOVERNMENT OF INDIA
HAVING ITS HEAD OFFICE AT
EAST BLOCK VIII, LEVEL-V
SECTOR-1, R.K.PURAM
NEW DELHI - 110 001
REPRESENTED BY
THE COMMISSIONER OF IMMIGRATION.
... RESPONDENTS
(BY SRI H.SHANTHI BHUSHAN, DSGI FOR R1 AND R3;
SRI RAHUL KRISHNA REDDY, ADVOCATE FOR
SRI P.PRASANNA KUMAR, SPL. PP FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECTING
RESPONDENT NO.2 AND 3 TO FURNISH THE RELEVANT
INFORMATION AND DOCUMENTS TO THE PETITIONER REGARDING
THE ISSUANCE OF COERCIVE ORDER/ARREST WARRANT/TRAVEL
BAN AGAINST HIM ORIGINATING EITHER FROM INTERPOL OR UAE
OR ANY INTERNATIONAL BODY, AS SOUGHT FOR IN THE LETTER
OF THE PETITIONER ADDRESSED TO RESPONDENT NO.2 THROUGH
EMAIL DATED 14-11-2024 AND 22/01/2025 VIDE ANNEXURE-E
AND F.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 17.03.2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
3
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner is before this Court seeking a direction to the
2nd and 3rd respondents to furnish all relevant information and
documents to him regarding issuance of a coercive order or travel
ban originating from Interpol or any international body. As a
consequence, he seeks deletion of his name or immediate
withdrawal of any entry concerning travel ban issued by Interpol or
International Authorities.
2. Facts, in brief, germane are as follows:-
The petitioner is a citizen of India holding an Indian passport
valid upto 21-10-2029 issued by the Consulate General of India at
Dubai. The petitioner has expertise in designing, equipping and
constructing hospitals and is said to be employed in the United Arab
Emirates from 1992 to 2021. The petitioner is the shareholder-
Authorised Signatory and Managing Director of one Limited Liability
Company named Modular Concepts LLC, Dubai ('the Company' for
4
short). The Company is involved in equipping of hospitals in the
Middle East countries.
3. From the year 2020 the Company is said to have faced
financial problems as several creditors had defaulted in paying dues
to the Company and the Company had to face civil proceedings for
enforcement of contractual obligations for recovery of money in
UAE. The civil proceedings were initiated before Courts at United
Arab Emirates (hereinafter referred to as 'UAE' for short). It is
averred that trial had been conducted in the absence of the
petitioner and judgments were passed against the Company and
the petitioner, as he was the Authorized Signatory. The further
averment in the petition is that proceedings that were initiated and
concluded ex parte were for recovery of money and dishonor of
cheque drawn on behalf of the Company. In terms of the
judgments rendered, the Courts at UAE issued non-bailable
warrants against the petitioner and requested the Interpol to issue
a Red Corner Notice/Warrant for arrest of the petitioner.
5
4. It is the averment in the petition that Interpol accepted the
requisition of UAE for enforcing the arrest warrant and consequently
issued a Red Corner Notice for arrest and securing the presence of
the petitioner. Since the petitioner would not be able to travel in the
light of Red Corner Notice and the communication of Interpol, he is
at doors of this Court seeking the aforesaid prayer.
5. Heard Sri P.P. Hegde, learned senior counsel appearing for
the petitioner, Sri H.Shanthi Bhushan, learned Deputy Solicitor
General of India appearing for respondents 1 and 3 and Sri Rahul
Krishna Reddy, learned counsel appearing for respondent No.2.
6. The learned senior counsel for the petitioner contends that
the petitioner has credible information that attempts are being
made to use criminal machinery against him to arm-twist him for
recovery of alleged financial dues for which warrants have been
issued in the form of Red Corner Notices. It is his submission that
the authorities at UAE have addressed international agencies like
Interpol to trace the petitioner. The petitioner is not informed of
any communication, but the Central Bureau of Investigation has
received communication from Interpol and is keeping it without
6
divulging the same to the petitioner in violation of his fundamental
right, as adverse entries would be made against him in the system.
It is his submission that the petitioner was not informed of making
any entry and no opportunity to show cause was ever issued to
him. If an adverse entry is made, the petitioner would not be able
to travel beyond the shores of the nation. It is his averment that a
Red Corner Notice or a communication from Interpol can be
executed only if there exists an extraditable offence involving the
petitioner. He would submit that no warrant is issued in any Court
in India and unilateral debarment of the petitioner from travelling
abroad would be violative of Article 21 of the Constitution.
7. The learned senior counsel would further submit that an
ex parte judgment, in a criminal case of another country, is
impermissible to be implemented on the Indian shores. The
notice/letter by the Interpol is only an advisory in nature and
cannot authorize the respondents to detain any Indian citizen, as it
would become contrary to the Extradition Act, 1962 ('the Act' for
short). The learned senior counsel would make plethora of
submissions with regard to the need to issue a show cause notice in
7
an extradition offence. No guidelines are framed in Interpol
proceedings and the petitioner would not be able to defend of any
notice unless he is arrested. He would seek to place upon the
judgment of the Apex Court in the case of BHAVESH JAYANTI
LAKHANI v. STATE OF MAHARASHTRA1 and a Division Bench
judgment of the High Court of Punjab and Haryana in the case of
VIKAS AGGARWAL v. UNION OF INDIA2 and a circular issued by
the Government of Dubai decriminalizing dishonor of cheque cases.
8. Per-contra, both the learned Deputy Solicitor General of
India Sri H.Shanthi Bhushan and the learned counsel Sri Rahul
Krishna Reddy, in unison, contend that the writ petition is
premature. No look out circular has been issued against the
petitioner. There is no extradition request from UAE. They would
seek to place reliance upon a judgment rendered by this Court in
the case of HARSHAVARDHANA RAO K v. UNION OF INDIA3 to
contend that prior to issuance of look out circular no notice need be
issued to the subject. They would seek dismissal of the petition, on
the score that it is premature.
1
(2009) 9 SCC 551
2
CWP-12712-2022 (O & M) decided on 28-09-2022
3
W.P.No.12185 of 2022 decided on 24-08-2022
8
9. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
10. Various issues have been projected by the petitioner, all
of which need not detain this Court for long or delve deep into the
matter. The Apex Court in the case BHAVESH JAYANTI LAKHANI
supra considered every aspect of what the learned senior counsel is
projecting. I, therefore, deem it appropriate to notice the said
judgment of the Apex Court and paraphrase the same to the
subject order, reading:
".... .... ....
35. A red corner notice has large number of
consequences, some of which are:
(i) The requesting country may make a deportation
request.
(ii) The law enforcement agency in India is required
to "take follow-up action with regard to the
arrest of a fugitive criminal".
(iii) The information emanating from the red corner
notice is required to be distributed all over the
Interpol website.
(iv) The requesting Embassy would instruct CBI to
carry out its instructions for surveillance, arrest
and detention.
9
(v) The requesting Embassy can even contact the Indian
police directly.
(vi) Thereafter extradition proceedings may follow.
Indisputably, therefore, when a proceeding under the
Act is initiated, the civil liberty of a person would be
directly affected. The provisions of the Act, therefore,
should be strictly construed. Any request for
extradition therefore must undergo the strict scrutiny
test. Extradition offence keeping in view its definition
in Section 2(c) of the Act in relation to a treaty State
must be one provided for in the extradition treaty
therewith. Application of the provisions of the Act,
thus, in a case of this nature must be held to be
imperative in character.
... .... ....
39. It is beyond any doubt or dispute that no
request for extradition has been received by the
Government of India. It could act only when a request
is received. It is accepted at the Bar that a red corner
notice by itself cannot be a basis of arrest or transfer
of an Indian citizen to a foreign jurisdiction. There is
furthermore no dispute that the Act cannot be
bypassed in red corner cases concerning Indian
citizens. Hence, the Extradition Treaty is subject to the
provisions of the Act.
40. It also stands admitted that the appellant being an
Indian citizen is entitled to enforcement of his fundamental
rights.
.... .... ....
42. All arrested persons are required to be
immediately produced before a Magistrate whereupon it
would have power to grant bail. Section 34-B provides that
the person so arrested would have to be released on bail
after a period of 60 days. If actual request for extradition is
required within the said period having regard to Section
41(g) of the Code of Criminal Procedure, the Central
Government cannot direct or effect an urgent arrest in
anticipation of an extradition request without obtaining a
10
warrant issued by a Magistrate. Article 12 provides that
provisions of provisional arrest according to which in a case
of urgency, the contracting State may request the provisional
arrest of the person sought pending presentation of the
request for extradition. It also provides that the facilities of
the International Criminal Police Organisation (Interpol) may
be used to transmit such a request. However, when a
request for provisional arrest in terms of Article 12 is
communicated, it must satisfy the requirement of Section
34-B of the Act. Such request from a foreign country must
be accompanied by the requisite documents and not a
communication from Interpol alone.
43. It will bear repetition to state that an arrest can
be effected at the instance of the Central Government only
when such a request is made by the foreign country and not
otherwise. Respondent 6 herself accepts that she had
pursued only civil remedies and the order of the custody
court was passed under civil remedies. Section 29 of the Act
as indicated hereinbefore provides for power of the Central
Government to discharge any fugitive criminal if it has
arrived at a conclusion that it is unjust or inexpedient to
surrender or return the fugitive criminal.
44. The High Court, therefore, in our opinion,
committed a serious error insofar as it failed to take into
consideration the provisions of the Act, in the absence of any
request having been made by the Government of the United
States of America to the executive Government of the Union
of India or any authorisation made by the latter in this
behalf.
45. India follows the doctrine of dualism and not
monism. We may, however, hasten to add that this
Court, however, at times for the purpose of
interpretation of statute has taken into consideration
not only the treaties in which India is a party but also
declarations, covenants and resolutions passed in
different international conferences.
[See Entertainment Network (India) Ltd. v. Super
Cassette Industries Ltd. [(2008) 13 SCC 30 : (2008) 9
Scale 69] ]
11
46. The Act as also the treaties entered into by
and between India and foreign countries are
admittedly subject to our municipal law. Enforcement
of a treaty is in the hands of the executive. But such
enforcement must conform to the domestic law of the
country. Whenever, it is well known, a conflict arises
between a treaty and the domestic law or a municipal
law, the latter shall prevail.
47. It furthermore stands admitted that
matrimonial dispute as such does not constitute an
extraditable offence and, thus, no effect could be given
thereto. However, whether this case concerns an
extraditable offence or not has to be determined by
the Magistrate under the Act.
48. We have noticed hereinbefore that the treaty itself
provides that the same is subject to any municipal laws of
the country. It is thus for the State concerned to take a
decision in regard to such notices, keeping in view the
municipal laws. The steps to deal with the request contained
in the notices, thus, must abide by the domestic laws of the
country concerned. Recognition of the request as the basis
for an arrest operate (sic operates as) an internationalisation
or transnationalisation of a foreign administrative decision.
The formal admission procedure by Interpol cannot be the
single cause of internalisation (sic internationalisation). It is
just a precondition for the recognition by the other States.
49. We may however add that, indisputably the
appellant received a notice from Interpol dated 13-6-2007
being a yellow or watch notice as also a notice dated 21-6-
2007 being a red or detain and arrest notice. Yellow notice
was in relation to the child whereas the red notice was in
relation to the appellant. The Assistant Director of National
Crimes Bureau (NCB) forwarded a letter dated 4-1-2008
from the US Embassy (Department of Justice) on or about
14-1-2009 to Mumbai Police to locate the appellant and his
daughter. On 18-3-2008 notice of arrest warrant issued by
Interpol was circulated against the appellant on the Interpol
website. Mumbai Police is said to have found the location of
the appellant and his daughter on 3-5-2008 which
information was passed on to US Embassy on 9-5-2008.
12
...
59. A red corner notice is issued to seek the provisional arrest of a wanted person. However, it by itself does not have the effect of warrant of arrest. It is issued for persons, against whom a national or international court has issued a warrant of arrest. It is solely a request of the issuing entity to provisionally or finally arrest the wanted person for extradition. A yellow notice, however, is issued for finding a missing person or to identify people who are not capable of identifying themselves. It is an "international missing person notice". It is issued specially to locate minors.
...
Binding nature of the Interpol notices
63. The notices issued by Interpol are not considered as administrative decisions on individual cases with transnational effect. They are not construed as an "international administrative act". They lack a character of regulation. They do not constitute an international arrest warrant and they are not in any other form binding the individuals concerned legally. They, however, gain de facto with special relevance to the human rights through multiplication of its recipients.
64. In fact, Interpol's "red notices" often function as de facto international arrest warrants and countries issue warrants immediately upon receipt of such a notice. However, they do so with the understanding that a request for extradition with supporting evidence will follow the red notice, without delay. The suspect must then go through the standard extradition process. The bottom line is that "warrants to arrest suspects must have legal authority in the jurisdiction where the suspect is found" and Interpol red notices do not have such authority. They are primarily a means of facilitating communication between police agencies and the success of the Interpol system still depends entirely upon voluntary cooperation. They, however, do not entirely lack external effects.
1365. A number of States recognise the red notices as an official request for the arrest of a person. However, such a request does not require the action of national police authorities and does not provide a legal basis thereto. The transnationalisation takes place through the membership in the organisation, through the supervision proviso of the General Secretariat and the recognition of the transnational effect of the information.
66. A successful search does not result in Interpol's further operative involvement either. The authorities concerned or the public are supposed to contact the local police office, which then gets in touch with the issuing authority and initiates the necessary steps. Therefore, the Member State usually gives the initiative for a notice, and cooperates with one or several other Member States in order to find and arrest the wanted person. Existing information is just distributed through a special communication channel. Interpol's role is limited to that of a service agency. (See Bettina Schondorf-Haubold, "The Administration of Information in International Administrative Law -- The Example of Interpol", 9 German L.J. 1719.) ...
Powers under the Act
76. We will deal with this subject in two parts, one is the stage before arrest and the second stage after arrest.
Before arrest
77. Power to apprehend or investigate a fugitive criminal, we have noticed hereinbefore, is conferred by Section 14 read with Section 15 of the Act. Section 14 prescribes the form of apprehension of a fugitive criminal under an endorsed warrant or a provisional warrant. Section 14 of the Act reads as hereunder:
"14. Endorsed and provisional warrants.--A fugitive criminal may be apprehended in India under an endorsed warrant or a provisional warrant."14
Warrant can be issued by a foreign country to arrest a fugitive criminal who is yet to be tried and a person who has already been convicted. A fugitive criminal may be apprehended under either category:
(i) an endorsed warrant; and
(ii) a provisional warrant.
78. An endorsed warrant is one which is a warrant that has, at first been issued by the foreign country with which India has an extradition treaty and subsequently been endorsed by the Central Government. Hence once a warrant issued by the foreign country is endorsed by the Central Government, it becomes an endorsed warrant in terms whereof sufficient authority is conferred to apprehend a person and to bring him before any Magistrate in India. Power to apprehend includes the power to investigate. Section 15 uses the term "apprehend" which is defined as "the seizing or taking hold of a man; the act of arresting or seizing under the process of law". Section 15 of the Act describes "endorsed warrant". It reads as:
"15. Endorsed warrant for apprehension of fugitive criminal.--Where a warrant for the apprehension of a fugitive criminal has been issued in any foreign State to which this Chapter applies and such fugitive criminal is, or is suspected to be, in India, the Central Government may, if satisfied that the warrant was issued by a person having lawful authority to issue the same, endorse such warrant in the manner prescribed, and the warrant so endorsed shall be sufficient authority to apprehend the person named in the warrant and to bring him before any Magistrate in India."
Procedures required to be followed after a person is arrested
79. The requirement to arrest a person for the purpose of his extradition is in two categories--(1) the cases in which India has an extradition treaty with the country concerned; and (2) those in which no such extradition treaty exists. In the former category of cases the provisions of Chapter III of the Act shall apply.
1580. Arrest, as noticed hereinbefore, is made by the police authorities in terms of an endorsed warrant; whereafter the procedure laid down in Section 17 is to be followed by reason whereof the fugitive criminal is to be brought to the Magistrate. Once the Magistrate satisfies (sic is satisfied) that the fugitive criminal has been brought before him in terms of an endorsed warrant which is duly authenticated and that the offence is an extraditable one, the Magistrate shall commit the fugitive criminal to prison. A certificate of committal is thereafter sent to the Central Government.
81. Section 17(1) states that the endorsed warrant in the case of the person who is brought before whom (sic) [Ed.: It may be useful to refer to the text of Section 17(1) of the Act:"17. Dealing with fugitive criminal when apprehended.--(1) If the Magistrate, before whom a person apprehended under this Chapter is brought, is satisfied on inquiry that the endorsed warrant for the apprehension of the fugitive criminal is duly authenticated and that the offence of which the person is accused or has been convicted is an extradition offence, the Magistrate shall commit the fugitive criminal to prison to await his return and shall forthwith send to the Central Government a certificate of the committal."] is duly authenticated and that the offence with which the person is accused of or has been convicted is an extradition offence, "the Magistrate shall commit the fugitive criminal to prison to await his return and shall forthwith send to the Central Government a certificate of the committal".
.... ... ....
89. It is sought to be clarified that Section 41(1)(g) of the Code of Criminal Procedure clearly contemplates the power of the police to arrest under "any law relating to extradition" thereby contemplating the exercise of powers subject to the provisions of the Extradition Act. Thus, the provisions of the Code of Criminal Procedure are subject to those in the Act."
(Emphasis supplied) 16 The Apex Court, in the afore-quoted paragraphs, has answered every issue that is now wanting to be projected by the petitioner.
The Apex Court holds that whether an offence is extraditable or not, has to be determined by the Magistrate under the Extradition Act.
The Government of India can act upon a Red Corner Notice only when extradition request is received. Types of warrants are also discussed by the Apex Court. Procedure to be followed upon arrest for the purpose of extradition under Section 17 of the Extradition Act is also noticed. Following the said judgment, the Punjab and Haryana High Court in VIKAS AGGARWAL supra has held as follows:
".... .... ....
It also appears that respondent No.2 has not applied its mind to the request for issuance of LOC made by the Indian entities of Bank of Baroda and the SBI and did not consider whether the grounds disclosed by them fall within the four corners of the OMs issued in that regard, though it may not be able to go into the merits/demerits of the allegations made against the petitioners by the said entities. It appears that mechanically the respondent No.2 had issued the LOCs at the instance of the Indian entities of the Bank of Baroda (respondent No.7) and the SBI (respondent No.8).
Similar views have been expressed by this Court in Noor Paul (2 Supra) and Poonam Paul (1 Supra). It was further held in those decisions that non supply of the LOC to the subjects of the LOC at the time of issuance of the same 17 and denial of opportunity to the subjects of the LOC, a post decisional hearing to explain why such LOC issued against them should be withdrawn/cancelled by the Bureau of Immigration (respondent No.2), is arbitrary and illegal, and it cannot be said to have followed fair, just and reasonable procedure to deprive the subject of the LOC of his or her fundamental right to travel abroad.
We follow the said decisions rendered by the Division Benches of this Court and hold that respondents No.7 and 8, which are Indian entities of the Bank of Baroda and the State Bank of India, cannot make a request for issuance of LOC to respondent No.2 in respect of dues owed to their sister entities incorporated in the UAE as per the Office Memorandums issued by the Ministry of Home Affairs from time to time.
The decision of Telangana High Court in Garikapati Venkateswara Rao (4 Supra), in our opinion, does not represent the correct legal position. So we decline to follow it.
Point (b) is answered accordingly in favour of the petitioners and against the respondents.
Point (c):
We shall now consider point (c):
Whether respondents No.5 and 6 are entitled to seek LOC against the petitioners?"
RE: LOC's issued at the instance of National Central Bureau (respondent No.5) Sh. Satya Pal Jain, counsel for respondents No.1, 2, 5 and 6, has placed before us only the LOC copy issued at the instance of respondent No.5, but not the request for issuance of LOC made by respondent No.5 to the respondent No.2. This LOC No. 2019411204 mentions in its remark column that the requesting country is 'UAE' and the charge is "uttering an unfunded cheque" (sic).18
In the additional pleadings filed by the petitioners details of some of the decisions rendered in criminal cases involving cheques issued in bad faith are furnished by the petitioners. But it is not disputed that all these decisions wherein petitioners were convicted and sentenced to imprisonment for three years for issuing cheques which have been dishonoured appear to have been pronounced in absentia. Also none of these cases have originated or had been adjudicated in India and therefore cannot serve as the basis for issuance of LOCs.
According to the petitioners, issuance of a cheque in bad faith or dishonour of cheque is no longer a criminal offence in the UAE as per Federal Decree Law No.14 of 2020 (amending the provisions of Federal Law No.18 of 1993 as issued by Sheikh Khalifa bin Zayed Al Nahyan on September
27. 2020 and published in Issue No.687 (Supplement) of the Official Gazette on September 30, 2020) with effect from January 2, 2022 and criminal sanctions may only be used in case of specific acts added by the Federal Decree by virtue of Article (641) Bis (2) and Article (641) Bis (3) added to the Federal Law No.(18) of 1993 concerning Commercial Transaction Law, Such specific acts added by the Federal Decree by virtue of Article (641) Bis (2) are as follows:
i. Ordering or asking the drawee, prior to due date, not to pay the value of a cheque he has issued.
ii. Closing the amount or withdrawing all available fund therein before issuing the cheque or before presenting the cheque for payment or if the account has been frozen; and iii. Deliberately writing or signing the cheque in a way that makes it unpayable.
The Federal Decree Law No.14 of 2020 which came into force on 02.01.2020 is filed as Annexure A2 by petitioners No. 1&2.
Petitioners contend that as per the aforesaid Federal Decree, issuance of a cheque in bad faith has been 19 decriminalized and is therefore no longer a criminal offence in UAE, apart from the exceptions added.
In the present case, Petitioners No.1&2 do not fall within any of the exceptions provided above.
According to the petitioners the amendment results in abrogation of the erstwhile provisions of the Penal Code governing the offence of bounced cheque.
Petitioners have also filed Circular No.9 of 2021 dt. 19.12.2021 issued by the office of the Attorney General of the UAE as Annexure A4 which deals with disposing cases for giving a cheque in bad faith and refusing to pay, for which the criminalization is abolished. As per the Attorney General Circular, travel ban and the embodied punishment is to be dropped for criminal orders passed in absentia, in cases of giving a cheque in bad faith, that are not executed ie, where arrest has not been made. The said circular states that where a final judgment has been passed, the Execution Division of the Court in UAE is required to put in place a mechanism to cancel enforcement of the judgment (including cancellation of the order for arrest and travel ban).
None of the respondents have chosen to refute the above contentions of the petitioners.
Therefore, on the basis of the Federal Decree Law No. 14 of 2020 and Circular No.9 of 2021 dt. 19.12.2021 issued by the office of the Attorney General of the Emirate of Dubai, the contentions of the petitioners regarding decriminalization of the offence of issuance of cheques in bad faith, and cancellation of judgments/orders of criminal Courts imposing sentence of imprisonment in absentia which are not executed, deserve to be accepted.
Therefore, respondent No.5 cannot insist on extension of any LOC issued against the petitioners and prevent them from travelling abroad and any such extension of the LOC after issuance of the Federal Decree Law No.14 of 2020 which came into effect on 02.01.2022 and the Circular No.9 of 2021 dt.19.12.2021 issued by office of the Attorney General, UAE cannot be sustained.
20Therefore the LOCs dt.03.04.2019 and 06.09.2021 issued and extended by respondent No.2 at the instance of respondent no.5 cannot be sustained.
Admittedly. Office Memorandum dt.27.10.2010 issued by the respondent No.1. LOC can be issued by the Respondent No.5 (amongst other authorities) for cognizable offences under the Indian Penal Code, 1860 or any other penal laws, where the accused deliberately evades arrest or does not appear before the trail courts despite non-bailable warrants or there is likelihood of the accused to leave the country to evade trial/arrest.
As per Indian Law, offence of dishonour of cheques is a non-cognizable offence.
As per Clause (h) of the Office Memorandum dt.27.10.2010 extracted above (clause (1) of the latest Office Memorandum No.25016/10/2017-IMM dt.22.02.2021), in cases where there is no cognizable offence under IPC and other Penal laws, the LOC subject cannot be detained/arrested or prevented from leaving the country. The originating agency can only request that they be informed about the arrival/departure of the subject in such cases.
In the instant case, when the petitioners are not alleged to have committed any cognizable offence, they could not have been prevented from leaving the country by respondents by issuing LOCs and such action is clearly violative of the Office Memorandums dt.27.10.2010 and dt.22.02.2021.
RE: LOCs issued at the instance of SFIO (respondent No.6) Coming to the case of the Serious Fraud Investigation Office (SFIO) (respondent No.6), it is said to be conducting an investigation into the affairs of M/s ACCIL, India, a company in which the petitioners are Directors and Guarantors for loans advanced by several lenders including SBI.
21The said investigation is only under Section 212 (1)
(c) of the Companies Act, 2013 initiated on 04.10.2019 by the Ministry of Corporate Affairs.
The debt of the said company has admittedly got resolved pursuant to an order dt. 19.10.2020 of the NCLT. New Delhi which had approved the resolution plan submitted by the resolution applicant M/s JSW Steel Coated Products Ltd. on 08.03.2019. Thereafter the SBI had entered into a debt assignment agreement dt.27.10.2020 with M/s Hasaud Steel Ltd. and had also issued a No Due Certificate on 23.11.2020 to ACCIL.
This Court has held in its order dt. 04.02.2022 in CWP No.1156 of 2022 and CWP No.1160 of 2022 that the said Bank and other lenders prima facie cannot continue proceedings before the NCLT. New Delhi and the DRT-II. New Delhi against the petitioners and has stayed proceedings in the said fora.
Once the debts of ACCIL are resolved by Corporate Insolvency Resolution Process, which is also approved by the NCLT. New Delhi, and the entire debt of the principal borrower stood assigned, petitioners contend that its account, which was earlier declared NPA by lenders, stands free of all exposures towards lenders and proceedings to enforce even guarantees against the petitioners cannot continue.
This issue is subject matter of CWP No. 1156 of 2022 and CWP No. 1160 of 2022.
But even if there is an investigation into the affairs of ACCIL, there is no report as of date adverse to the petitioners and there is no FIR filed against them in India. So no request for issuance of LOC could have been made by the SFIO to respondent No.2.
No provision of any Office Memorandum issued by the Ministry of Home Affairs empowering the SFIO to seek a LOC on the pretext of such investigation under Section 212(1) (c) of the Companies Act. 2013 is brought to our notice by Sh.
22Satya Pal Jain, the learned Additional Solicitor General of India or any of the respondents' counsel.
Therefore, it has to be held that neither respondent No.5 nor respondent No.6 were entitled to approach the respondent No.2 for issuance of an LOC or its extension in the facts and circumstances of the case.
Point (c) is answered accordingly.
Point (d):
In view of the above reasoning, the LOCs issued against the petitioners at the instance of respondents No.3 to 8 by respondent No.2 and which are said to have been extended at their request and are said to be subsisting as on date are all set aside; respondents No.3 to 8 shall communicate this order to respondent No.2; and officials/employees of respondents No. 1 & 2 are restrained from preventing the petitioners from travelling abroad. Writ Petition is allowed accordingly. No costs.
Pending application(s), if any, shall stands disposed of."
(Emphasis supplied) Every contention of the learned senior counsel have been answered by the Apex Court and the High Court of Punjab and Haryana in the afore-quoted judgments and therefore, consideration all over again would not be necessary in the peculiar fact of this case. The peculiar fact is, whether any cause of action has arisen to the petitioner, at this juncture, to approach this Court with the present petition?
2312. The CBI has placed a communication dated 6/14-02-2025 which reads as follows:
"Please refer to this office email dated 06-02-25 and letter WP No.2632/2025/112/DSP/NCB/157(1) dated 06-02- 25 on the subject cited above.
2. In this connection, based on records, it is informed that there is no colour coded INTERPOL. Notice published against the subject Manoj Thandaserry Dharman by INTREPOL. However, we have no information if there is any Look Out Circular against the subject from any other agency.
3. In view of the above, it is requested to kindly appear before the Hon'ble High Court of Karnataka at Bengaluru on the NDOH and apprise above the limited role of National Central Bureau (NCB India), INTERPOL, New Delhi in the matter. This is for your kind information and taking further necessary action as deemed appropriate please."
(Emphasis added) This is a communication to the counsel by the CBI that it has not issued any look out circular against the petitioner. The learned Deputy Solicitor General of India Sri H.Shanthi Bhushan, appearing for the Ministry of External Affairs, also submits that the Ministry has also not received any extradition request against the petitioner and if received in future, it would be governed by the provisions of 24 Bilateral Extradition Treaty between India and the UAE. Therefore, when there is no look out circular and when there is no request for extradition, it must therefore be held that the petition is woven more from apprehension than actuality, as the remedy sought by the petitioner is undoubtedly premature.
13. The contention of the learned senior counsel is that a Red Corner Notice must be issued only against extraditable offence. The entire edifice of the argument of the learned senior counsel is built on the alleged decriminalizing of dishonor of a cheque in UAE. The prayers that are sought by the petitioner are absolutely outlandish.
There is nothing today that has happened against the petitioner. No travel ban is imposed by this country and there is no look out circular issued thereto. Therefore, if the petitioner has any grievance with regard to certain incident or warrants pending in United Arab Emirates, it is for him to avail all such remedies as are available in law. Insofar as this Nation is concerned, the communication is quoted hereinabove, and no action is taken 25 against the petitioner, there is no adverse entry anywhere or any coercive steps taken.
14. For the aforesaid reasons, finding no merit in the petition, the petition is rejected, leaving open the liberty of the petitioner to invoke appropriate remedies, if and when any coercive action, if in fact, be initiated or taken against the petitioner.
SD/-
(M.NAGAPRASANNA) JUDGE bkp CT:SS