Delhi High Court
J.C.T. Limited vs State (Delhi Administration) And Ors. on 20 December, 1991
Equivalent citations: 46(1992)DLT237
JUDGMENT V.B. Bansal, J.
(1) This order is to dispose of an application by the petitioner with a prayer that exercising the powers under Sec. 482 of the Code of Criminal Procedure (for short the Code) the Court may set aside the order dated 8th November, 1990 passed by a Metropolitan Magistrate, New Delhi vide which instead of releasing the amount of Rs. 13,03,000.00 in favor of the petitioner the same has been ordered to be frozen.
(2) Briefly stated the facts leading to the filing of this petition are as under.
(3) In June, 1989 the petitioner issued shares to be subscribed by the public to increase its capital base for which the terms and conditions were approved by the Controller of Capital Issues, Ministry of Finance, New Delhi. There was overwhelming response from the public as a result of which the issue was over subscribed resulting in not making available shares at all or the requisite number of sh ires to numerous persons. The issue was of a magnitude of Rs. 50.40 crores and the petitioner availed the services of M/s Magnum Business Associates as Registrar to the Issue. In order to issue refund vouchers M/s Magnum Business Associates were given blank refund orders for computer printing and mailing to various applicants. These blank refund orders were duly signed were made payable at Allahabad Bank, Parliament Street Branch, New Delhi and the American Express Bank Limited, Connaught Circus Branch, New Delhi, and were of date 29th August, 1989.
(4) Arefund order bearing No. 376201 for a sum of Rs 3.16,000.00 was presented to the Americal Express Bank Limited by Bank of Baroda, Azadpur Branch payable to favor of one Badri Nath. The Americal Express Bank Limited became suspicious on account of the huge amount and contacted the petitioner for confirmation of the said order. It was found on verification that in fact the refund order was for a sum of Rs 2.000.00 and it was not issued for the aforesaid amount of Rs.3,16,000.00 . Accordingly the payment of the said refund order was stopped with. further instructions to the Bank that payment of any refund order which is type written may not be made without getting confirmation from the petitioner. It was also found that Allahabad Bank received a refund order No 388139 in favor of Rakesh Jain and refund order No. 439603 for a sum of Rs. 3,56,000.00 in favor of R.K. Jain. These were also found to be forged. The petitioner found that another pay order in favor of Ravinder Kumar was also found to be forged. Investigation revealed that a sum of Rs. 13,03,000.00 was lying undisbursed in the accounts of Rakesh Gupta, Ravinder Kumar, R.K. Jain and Badri Nath and that Rahul Gupta and R.K. Jain were in fact the fictions names of Pramod Goel.
(5) An application was moved by the petitioner for getting the aforesaid amount of Rs 13,03,000.00 so that they may utilise the same. Application of the petitioner was disposed of by the learned Metropolitan Magistrate vide impugned order holding that the freezing of the credit balance in the said accounts is sufficient to secure the interest of the applicant and that the release of the amount in favor of the petitioner may not be proper.
(6) I have heard Shri K.L. Arora, Sr Advocate for the petitioner, Shri B.K. Sharina learned Counsel for, respondent no. 1, Shri Vikram Dhokalia learned Counsel for respondent no. 2 and Ch. Shiv. Raj Singh learned Counsel for respondent no. 4.
(7) Badri Nath could not be served who Is stated to be an absconder even before the trial Court.
(8) A preliminary objection has been taken by learned Counsel for the State as also learned Counsel for respondent no. 2 that the petition is not competent. It has been submitted that the impugned order is an interlocutory order which cannot be challenged by way of a revision and in these circumstances it is not permissible for the petitioner to invoke the inherent powers of this Court under Sec. 482 of the Code. A reliance in this regard has been placed on the judgment Smt. Anisa Begum v. Masoom Ali and Another 1986 Cr. L.J. 503.
(9) Learned Counsel for the petitioner has, however, controverter this submission and submitted that in fact by refusing the prayer of the petitioner there is an abuse of the process of Court and it would be in the interest of justice that this Court entertain the petition against the said order.
(10) I have given my thoughtful consideration to these submissions and have no hesitation in coming to the conclusion that considering the facts and circumstances of this case the petition ought to be entertained to be disposed of on merits.
(11) It would at this stage be appopriate to mention the facts of case Smt. Anisa Begum v. Masoom All & Another (supra). One Zamir Ahmed used to repair shock absorbers and do other auto jobs in the repairs of motor vehicles and used to keep his goods including tools and implements in a box at the place of his work near Inter-State Bus Terminal, Delhi. He along with his son died under misterious circumstances. A report was lodged by Anisa Begum with the police that after the death of her husband and son Masoom Ali had stolen the box having goods and tools etc of her husband from the place of his work upon which a case was registered under Sec, 379 IPC. During investigation of the case property was recovered and seized by the police. An application was moved by accused of the said case for the return of the case property to him on Superdari The said application was opposed by the complainant claiming that it was the property of her husband stolen by the accused-applicant taking advantage of her helplessness. The application was disposed of by the learned magistrate thereby prayer of the accused was rejected and the goods were orderded to be returned on Superdart to the complainant. This order was challenged by way of a revision in the Sessions Court and the revision was accepted by an Addl Sessions Judge who directed that the case property be given on Superdari to the accused. It was in these circumstances that the High Court was moved by way of a revision by the complainant. Dealing with the case law on the subject it was held that the order passed by the magistrate had not decided the matter finally and it was made only for a specific purpose. i.e. interim custody of the property to be produced before the Court and that the Court passes such an order only to facilitate proper exercise of judicial discretion and nothing more. The judgment also has placed reliance upon the cases Madhu Limaye v. State of Maharashtra and Amar Nath and Others v. State of Haryana . A reading of the case of Madhu Limaye (supra) makes it abundantly clear that there is a reference to three conditions under which the High Court may exercise its inherent powers which are: 1.that the power Is not to be resorted to If there Is specific provision in the Code fur the redress of the grievance of the aggrieved party, 2. that it should exercised every sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice' and 3. that it should not be exercised as against the express bar of law engrafted in any other provision of the Code.
(12) The purpose of such embargo appears to be that the proceedings may come to an end expeditlously instead of being delayed by way of challenging the interlocutory orders.
(13) It is the admitted case of the parties that on the basis of a complaint by the petitioner a case has been registered and the respondents are facing trialandasumofRs.l3,03,000.00 is in dispute which is lying in the accounts of the persons referred to above. The prayer made by the petitioner was that the amount may be allowed to be utilised by them instead of it remaining in the accounts which prayer has been declined by holding that the ends of justice would be met if the said amount is frozen. It would, thus, mean that such a huge amount would remain frozen without earning any interest and, thus, it would be the dead money for the period during which the case remains pending I am afraid (be ends of jastice are not met by this order and it would have been appropriate to deal with this amount to be utilised In a better way. Court has to ensure the proper custody of the property during trial as also that there is no 1088 to anybody on account of the passing of such an order. Normally, the purpose of giving the property on Superdari is to ensure that it is available to Court as and when required. In the instant case the order having not able to safeguard the interest of the complainant, in my view, is open to be challenged by the petitioner and the petitioner cannot be non-suited only on the basis of this preliminary objection. Interference by this Court with the impugned order, in my view, would be to secure the ends of justice and, thus, this Court cannot remain silent spectator and decline to interfere.
(14) Learned Counsel for the respondent No. 4 has submitted that Ravinder Singh @ Ravinder Kumar respondent No. 4 does not object to the said amount being on superdart to the petitioner. Learned Counsel for respon No. 1 had at one stage submitted that the State has no obejection to the amount being given to the petitioner but on a subsequent date during the hearing of the petition he submitted that the amount In question may not be given to the petitioner. Learned Counsel for respondent no. 2 has submitted that respondent no. 2 does not want to open his mouth or to disclose his defense nad that asking him to make any statement or averment in this regard would in fact amount to forcing him to disclose his defense which is not permissible and so respondent no. 2 does not want to any anything. He even submitted that respondent no. 2 does not claim the amount either.
(15) In these circumstances, the short question for consideration is as to what order should be passed so as to ensure the proper utilisation of such a huge amount lying under the orders of the learned Metropolitan Magistrate.
(16) Learned Counsel for the petitioner has submitted that the petitioner is ready and willing to give bank guarantee for the said amount and the amount would be produced in Court as and when required if reasonable time is given for producing the same. On a question being put to the learned Counsel for the petitioner as to what should be the interest payable, by the petitioner in case the amount is to hs given to any other party in pursuance of the order of the Court, he has submitted that the Court may fix any reasonable amount.
(17) It is not disputed that sufficient time may be taken in concluding the trial. In these circumstances, T am clearly of the view that the ends of justice would be met it the said amount is given to the petitioner on furnishing a bank guarantee for Rs. 13,03,000.00 and interest at the rate of 12 per cent per ?annum from the date of payment till the date the amount is produced in pursuance of an order of the Court.
(18) As a result, the petition is allowed. The impugned order dated 8th November, 1990 is set aside. The concerned Court is directed to release the said amount of Rs. 13,03,000.00 in favor of the petitioner on their furnishing bank guarantee for the refund of the said amount along with interest at the rate of 12 per cent per annum from the date they receive the amount till the date the amount is paid in terms of the order. Petition allowed.