Allahabad High Court
M/S Ismartu India Private Limited vs State Of U.P. And Another on 31 August, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:141124 Reserved on : 02.07.2024 Delivered on : 31.08.2024 Court No. - 77 Case :- APPLICATION U/S 482 No. - 23964 of 2023 Applicant :- M/S Ismartu India Private Limited Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anurag Vajpeyi Counsel for Opposite Party :- G.A.,Sikandar B. Kochar Hon'ble Rajeev Misra,J.
1. Heard, Mr. Roopesh the learned counsel for applicant, Mr. Roopak Chaubey, the learned A.G.A.-Ist for State-opposite partyi-1 and Mr. Sikandar B. Kochar, the learned counsel representing Directorate of Enforcement-opposite party-2.
2. Perused the record.
3. This application under Section 482 Cr.P.C. has been filed by applicant M/s Ismartu India Private Limited challenging the order dated 24.05.2023 passed by Civil Judge (Senior Devision)/ F.T.C./Additional Chief Judicial Magistrate, Gautam Buddh Nagar in Case Crime No. 408 of 2022 under Sections 419, 420, 467, 468, 471 I.P.C., Section 14 of the Foreigner's Act, 1946 and Section 67 DIT Act, Police Station Beta-2, District Gautam Buddh Nagar whereby the application under Section 457 Cr.P.C. filed by applicant to de-freeze his Bank Account has been rejected.
4. Record shows that an F.I.R. dated 14.06.2022 was lodged by first informant, S. I. Pramod Kumar and was registered as Case Crime No. 0408 of 2022 under Sections 419, 420, 467, 468, 471 I.P.C. and Section 14 of the Foreigner's Act, 1946, Police Station Beta-2, District Greater Noida (Commissionerate Gautam Buddh Nagar). In the aforesaid F.I.R., two persons namely XUE FEI @ KOEI and PETEKHRIENUO have been nominated as named accused. It is apposite to mention here that the applicant M/s Ismartu India has neither been nominated as named accused nor the name of applicant finds mention in the body of F.I.R.
5. The gravamen of the allegations made in the F.I.R. as set out in the present application under Section 482 Cr.P.C. is to the effect that the accused were residing at JP Greens, Greater Noida and were caught with several mobile phones, Debit Cards, laptop, a BMW car and various face documents including AADHAR, PAN cards and Passports. It has been alleged in the F.I.R. that the accused persons were involved in forgery of certain documents and were helping Chinese residents to enter Indian territory illegally through Nepal. During the investigation, the accused persons revealed that they were able to extend their visa in India with the help of one Mr. Ravi Kumar Natwarlal Thakkar who is a director in a company named HTZN Technology Private Limited.
6. After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. During course of investigation, the Bank of applicant namely HDFC Bank received a notice on 21.07.2022 bearing No. SD-STF-V-5/2022 under Section 91 Cr.P.C. directing the Bank to Debit Freeze the Bank Account No. 00880330002032 of applicant until further notice. As a consequence of above, aforementioned bank account of applicant stood Debit Freezed.
7. Subsequently, another notice was received by applicant on 25.07.2022 issued by the Investigating Officer directing the applicant to produce documents. The applicant duly complied with the directions issued by the Investigating Officer.
8. Ultimately the Investigating Officer submitted the police report in terms of Section 173(2) Cr.P.C. i.e. charge sheet dated 09.09.2022 against 15 persons, who have been charge sheeted under Sections 201, 419, 420, 467, 468, 471, 120B I.P.C., Sections 14a, 14b, 14c of Foreigners Act 1946 and Section 66D I.T. Act. However, applicant is not a charge sheeted accused.
9. In view of above, the applicant filed an application under Section 457 Cr.P.C. before Court below i.e. the Jurisdictional Magistrate with the prayer that Bank Account of applicant be de-freezed. Subsequent to above, a report was called for by court below from the Investigating Officer. In compliance of above, the Investigating Officer duly submitted his report. In the aforesaid report, it was alleged that the transferred amount has not been shown in the Income Tax Returns of the three companies nor in the ledger accounts of the company. On the basis of forged bill, entries have been made. The details of the Chinese Citizen, who has sent money has not been specified nor the purpose for which the said money was transferred has been explained. No business was found to have been conducted with HTZN-TD MAX. By making forged entries, money laundering has been committed. It was on account of above that bank account of the company was got Debit Freezed. As per the report of the Investigating Officer, the money earned by the accused has been transferred to different persons and companies, in respect of which separate case has been registered. The matter is being enquired into by the Directorate of Revenue Intelligence. Till the conclusion of trial and on account of the proceedings being undertaken by the Directorate of Revenue Intelligence, it is not justifiable to de-freeze the bank account of the applicant/company.
10. Ultimately, court below upon evaluation of the objections raised by the Investigating Officer to the application under Section 457 Cr.P.C. filed by applicant, concluded against the applicant. According to Court below, the applicant is guilty of committing money laundering as no actual transfer of money has taken place. All the transactions are forged and fabricated. Till the conclusion of the trial and on account of investigation being conducted by Directorate of Enforcement, it is not justifiable to de-freeze the bank account of the applicant. On the above findings, the court below i.e. Additional Civil Judge (Senior Division)/F.T.C./Additional Chief Judicial Magistrate, Gautam Buddh Nagar rejected the aforementioned application filed by applicant vide order dated 24.05.2023.
11. Thus feeling aggrieved by the above order dated 24.05.2023 passed by Additional Civil Judge (Senior Division)/F.T.C./Additional Chief Judicial Magistrate, Gautam Buddh Nagar, applicant has now approached this Court by means of present application under Section 482 Cr.P.C..
12. During course of proceedings, direction was issued by this Court to implead the Directorate of Enforcement as party respondent, which was duly complied with by the learned counsel for applicant. Consequently, the Directorate of Enforcement became a party respondent in present proceedings.
13. Learned counsel for applicant in challenge to the order impugned contended that applicant is neither named as an accused in the F.I.R. nor the name of applicant finds mention in the body of F.I.R. nor the applicant has been charge sheeted. The charge sheet has already been submitted on 09.09.2022 against 15 persons but certainly not against the applicant. As such the entire evidence sought to be relied upon by the prosecution against charge sheeted accused stands crystallised. On the above premise, it is thus urged that no good or justifiable ground now exists to prolong the account of the applicant to remain Debit Freeze. In support of aforesaid submissions reliance is placed upon the judgement of Supreme Court in M/s Jermyn Capital LLC Dubai v. CBI, 2023 Live Law (SC) 421.
14. According to the learned counsel for applicant, the bank account of applicant was Debit Freezed on 21.07.2022. Applicant had co-operated with the process of investigation. The investigation has now come to an end inasmuch as the police report under Section 173 (2) Cr.P.C. i.e. charge sheet has already been submitted on 09.09.2022. However, in spite of the fact that a period of more than one year and eleven months has rolled by from the date of submission of police report (charge sheet), no steps were taken by the Investigating Officer for de-freezing the bank account of applicant. He thus concludes that the bank account cannot be allowed to remain Defit Freeze for an indefinite period. To buttress his submission, he has referred to the following judgements; i. Concept Infravision Private Limited v. State of Uttar Pradesh (2022:AHC:197837), ii. Mohammad Enamul Haque v. Central Bureau of Investigation (2018 SCC Online Ker 22772) iii. Mr. Guruprasath v. State (2017 SCC Online Mad 34779)
15. It was then contended by the learned counsel for applicant that on account of the act of the Investigating Officer in getting the account of the applicant Debit Freezed, the day to day transactions of applicant, which is a commercial concern/ a company engaged in business is being seriously affected. On account of above, financial delays have occurred, which is detrimental to the interest of the company/applicant. Referring to the judgment in Mahantesh Mahabaleshwar Khodanpur Vs. State of Karnataka (Criminal Petition: 100184/2022), the learned counsel for applicant contended that Court considered the aforesaid aspect of the matter and on basis thereof, concluded that since the freezing of bank account of the applicant is causing losses and affecting the day to day transactions of the business therefore the bank account of the company needs to be de-freezed. Since on account of Debit-Freeze of bank account, the applicant is unable to remit the salaries to its employees, make payments to the labour, to pay the duty and taxes etc. On account of aforesaid exigencies, bank account of applicant is liable to be de-freezed.
16. Attention of the Court was then invited to the provisions contained in Section 91 and Section 102 Cr.P.C. With reference to Section 91 Cr.P.C. the learned counsel for applicant submits that the Investigating Officer in purported exercise of jurisdiction, issued the notice bearing No. ST-STF-V-5/2022 directing the bank of applicant namely HDFC Bank to Debit Freeze the bank account of applicant. In the submission of learned counsel for applicant, the notice under Section 91 Cr.P.C. can be issued only for summoning a person or a document but it certainly cannot be used to debit freeze the bank account. As such, the notice referred to above is manifestly illegal being in excess of jurisdiction. In support of above, reliance was placed upon the following judgements:- I. Sahil Raj v. The State of Tamil Nadi and Others (W.P. No. 21344 of 2022) II. Mohd. Rizwan Ansari v. State of Uttrakhand & Others (W.P. (M/S) No 699 of 2021), III. V. Plus Technology Pvt. Ltd. v. State (Nct of Delhi) and Another (W.P. (CRL) 2482/2021).
17. On the above premise, it is thus sought to be contended by the learned counsel for applicant that Investigating Officer has acted outside the scope of his power inasmuch as he has acted as an officer of the Directorate of Enforcement. The Investigating Officer has no power under the Code (Cr.P.C.) to get the bank accounts of a prospective accused debit freeze. As such, the Investigating Officer in the present case has abused the process of law.
18. In the submission of the learned counsel for applicant that procedure for freezing the bank account in a case of money laundering has to be done under Section 17 of the Prevention of Money Laundering Act, 2002 by an officer of the Enforcement Directorate or any other officer authorized by the Director. The Investigating Officer in the present case went outside the scope of his power and acted as an officer of the Enforcement Directorate and also did not follow any procedure that is to be followed by an officer of the Enforcement Directorate for freezing of a bank account. With reference to the judgement of Supreme Court in Opto Circuit India Limited v. Axis Bank and Others (2021) 6 SCC 707, he submits that where the law requires a thing to be done in a particular manner, it can be done in that manner alone or not at all. In the instant case, though the authorised officer is vested with sufficient power but such power is circumscribed by the procedure laid down in the Prevention of Money Laundering Act, and the Investigating Officer of aforementioned case crime number was not investigating a case under the Prevention of Money Laundering Act, therefore, the impugned action of the Investigating Officer in taking recourse to Section 91 Cr.P.C. for getting the bank account of applicant debit freeze is de-horse the well established principle i.e. procedure established by law.
19. It was lastly submitted by the learned counsel for applicant that seized goods should be released in favour of the owner until and unless compelling circumstances exists necessitating the retention of seized goods during the pendency of trial. However in the present case, since the investigation of case crime number, in which, the bank account of applicant was got debit freezed by the Investigating Officer has concluded inasmuch as the police report in terms of Section 173 (2) Cr.P.C. has already been submitted and applicant has not been charge sheeted as an accused therefore, no trial of the applicant is pending before court below. As such, no exceptional circumstance can be said to be in existence warranting continuation of the account of applicant to be under Debit Freeze. As such, a direction is liable to be issued by this Court to opposite party-1, State of U.P., to undo the debit freeze of the bank account of applicant. In support of above, reference was made to the judgement of Supreme Court in Sunderbhai Ambalal Desai Vs. State of Gujrat (2002) 10 SCC 283.
20. Learned counsel for applicant, ultimately, invited the attention of the Court to the judgement of Apex Court in Saumya Chaurasia Vs. Directorate of Enforcement, Criminal Appeal No. 3840 of 2023 @ Special Leave Petition (Crl.) No. 8847 of 2023 and with reference to above submits that since the applicant has not been charge sheeted under the predicate/scheduled offence, therefore, no justifiable ground exists to sustain Debit Freeze of the Bank account of applicant. Furthermore, no complaint has been filed by the Enforcement Directorate against applicant till date. On the above premise, he therefore submits that present application is liable to be allowed.
21. The learned A.G.A. representing State-opposite party-1 has filed a counter affidavit in opposition to the present application. In the counter affidavit so filed on behalf of State, it has been alleged that the role of applicant/company has been instrumental in abetting the crime in question. Applicant has played an active part in series of economic offences committed by charge sheeted accused, which led to wrongful gain in favour of international mafia. Co-accused Xue-Fei @ Kyle came to India on 03.12.2018 with a valid VISA and passport and then interpolated his VISA through the applicant. Applicant has wrongfully gained through the entire transactions with complete knowledge and intention. The money trail from various sources has trickled down to the applicant in his complete knowledge. The applicant company is a facilitator of international mafia which is apparent on face of record. The applicant had knowingly and intentionally got Chinese Nationals immigrated in the Indian Territory. On the basis of pleadings raised in the counter affidavit, Mr. Roopak Chaubey, the learned A.G.A.-Ist would submit that considering the nature and gravity of allegations made agaisnt applicant and also the fact that an FIR has been got registered against applicant by the Directorate of Enforcement, the applicant cannot be said to be innocent or that his innocence is beyond doubt. Since applicant is being prima-facie suspected to have committed an economic offence, therefore, no indulgence be granted by this Court in favour of applicant.
22. A short counter affidavit as well as a supplementary counter affidavit have been filed by the Directorate of Enforcement opposing the present application. The pith and substance of the objections raised by the Directorate of Enforcement is that an Enforcement Case Information Report " ECIR" bearing CEIR/ALSZO/03/2023 dated 24.05.2023 based on the F.I.R./Case Crime No. 0408 of 2022 under Sections 419, 420, 467, 468, 471 I.P.C. and Section 14 of the Foreigner's Act, 1946, Police Station Beta-2, District Greater Noida (Commissionerate Gautam Buddh Nagar) as well as the charge sheet dated 09.09.2022 submitted therein has been registered. As such, investigation under the provisions of Prevention of Money Laundering Act has been undertaken and is pending.
23. It has been further stated that summons were issued to the applicant/company under Section 50 of the Prevention of Money Laundering Act. In compliance of same, applicant sought adjournment to appear on the next date. He did appear thereafter but without details. Except for the above, no further details have been mentioned in the counter affidavits filed by the Directorate of Enforcement regarding the investigation of the case registered by the Directorate of Enforcement or about any proceedings having been initiated by the Directorate of Enforcement against applicant to maintain the status of the Bank account of applicant i.e. De-Freeze. On the above conspectus, Mr. Sikandar B. Kochar, the learned counsel representing Directorate of Enforcement-opposite party-2 urges that since investigation qua the conduct of applicant for an offence under the Prevention of Money Laundering Act is still going on, no good ground exists to undo the Debit Freeze status of the bank account of applicant.
24. In rejoinder, the learned counsel for applicant Mr. Rupesh in support of this application and also to portray the bonafide of the applicant has invited the attention of Court to the averments made in paragraphs 12, 14, 15, 16, 17, 18, 19, 20 and 21 of the affidavit filed in support of present application. With reference to above, it was urged by the learned counsel for applicant that applicant is doing bona-fide business with HTZN Technology Pvt. Ltd. under various signed contracts for purchase of goods and service to machinery during the period 10.05.2018 and further under an agreement dated 19.11.2018, higher purchase agreement dated 28.12.2018, service agreement from 24.11.2018 to 23.11.2019. He thus concluded that on the sum-total of the varied submission urged by him and there being no denial of the fact that applicant is not a charge sheeted accused, nor any step has been taken by the Directorate of Enforcement to maintain the Debit Freeze status of the bank account of applicant, the present application is liable to be allowed.
25. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1, the learned counsel representing Directorate of Enforcement-opposite party-2 and upon perusal of record, this Court finds that the following position stands crystallized;-
(i). An FIR dated 14.06.2022 was lodged by first informant, SI Pramod Kumar, which was registered as Case Crime No. 0408 of 2022 under Sections 419, 420, 467, 468, 471 I.P.C., Section 14 of the Foreigner's Act, 1946 and Section 67 DIT Act, Police Station Beta-2, District Gautam Buddh Nagar.
(ii). In the aforesaid FIR, the applicant has neither been nominated as a named accused nor the name of applicant is mentioned in the body of FIR.
(iii). During pendency of statutory investigation of aforementioned case crime number in terms of Chapter-XII Cr.P.C., Investigating Officer in purported exercise of jurisdiction under Section 91 Cr.P.C. sent a notice bearing no. SD-STF-V-5/2022 to the Bank of the applicant namely HDFC Bank directing the bank to Debit Freeze the bank account of applicant until further notice. As a consequence of above, aforementioned bank account of applicant stood Debit Freeze.
(iv). Investigating Officer further issued a notice to the applicant for producing documents. The said notice was received by applicant on 25.07.2002 and applicant duly complied with the directions issued by the Investigating Officer.
(v). Upon completion of investigation of aforementioned case crime number, Investigating Officer submitted the police report dated 09.09.2022 in terms of Section 173(2) Cr.P.C., whereby 15 persons have been charge sheeted under Sections 201, 419, 420, 467, 468, 471, 120-B IPC, Sections 14-A, 14-B, 14-C of Foreigners Act and Sections 66-D of I.T. Act. However, the applicant is not a charge sheeted accused.
(vi). Irrespective of above, no steps were taken by the Investigating Officer for de-freezing of the bank account of applicant, which was Debit Freezed by the bank pursuant to the notice issued by the Investigating Officer himself.
(vii). In view of above, applicant filed an application under Section 457 Cr.P.C. before the Jurisdictional Magistrate seeking de-freezing of his bank account, which was made Debit Freeze.
(viii). On the said application, the concerned Magistrate called for a police report. In response to above, the Investigating Officer submitted the report alleging various facts against applicants and thus opposed the application filed by applicant under Section 457 Cr.P.C. However, there is no denial of the fact that applicant has not been charge sheeted in the concerned case crime number, whereas the bank account of applicant was made Debit Freeze on the notice issued by the Investigating Officer during the course of investigation.
(ix). The concerned Magistrate rejected the application filed by applicant under Section 457 Cr.P.C. by giving reasons as noted in paragraph 10 of this judgment. It appears that the pendency of investigation conducted by the Directorate of Enforcement against applicant swayed with the Court. The Jurisdictional Magistrate failed to consider that the applicant is neither named in the FIR nor a charge sheeted accused.
(x). In view of above and also the law laid down by Apex Court in M/s Jermyn Capital LLC Dubai (Supra), no justifiable ground can be said to be in existence for maintaining the Debit Freezed status of the bank account of applicant. Paragraph 17 of the aforesaid report is relevant for the controversy in hand and is, accordingly, reproduced herein below:-
"17. Since the appellant company is not connected to the alleged crime, and has not found mention in the FIR or the chargesheet, the freeze order against the appellant company's properties is redundant qua the investigation, since the appellant company itself is not necessary for the conclusion of the investigation."
(xi). Once applicant is not a charge sheeted accused and no investigation against applicant is pending in the case crime number during investigation of which, the Investigating Officer got the bank account of applicant Debit Freezed, therefore, the said situation qua the status of the bank account of applicant cannot be allowed to continue for an indefinite period as per law laid down in Concept Infravision Private Limited (Supra), Mohde. Enamul Haque (Supra) and Mr. Guruprasath (Supra). Paragraph 9 of the judgment, which appears to be tailor made for the facts of the present case needs to be noticed and is, accordingly, extracted herein under:-
"9. There is merit in the argument of learned Senior Counsel for applicant that Bank account cannot be defreezed for unlimited period when it is directly affecting livelihood of applicant. The Court concerned could have freeze amount more than the amount which appears to be proceeds of crime. It is possible that at this stage exact proceeds of crime may not be determined, however, to freeze the bank account for unlimited period would not be a correct legal approach. It is alarming that charge sheet was filed way back on 08.05.2017, i.e., that more than five years before, however, till date even charges are not framed. Speedy trial is not only the right of complainant but accused also."
(xii). Since the applicant is a company, undertaking commercial activity, therefore, in case, the bank account of applicant is allowed to remain Debit Freeze for an indefinite period, it is the applicant, who shall suffer as day to day transactions as well as statutory obligations of the company cannot be discharged. The said circumstance is a relevant circumstance, while considering the prayer for de-freezing the bank account as per law laid down in Mahantesh Mahabaleshwar Khodanpur (Supra). The Court took notice of the facts and circumstances of the case and thus delineated it's views in paragraph 6 of the report, which reads as under:-
"6. The petitioner is a builder and developer and he entered into a memorandum of understanding with accused No.2 and 3 for developing the property belonging to them and was required to execute a registered sale deed in their favour for consideration. The charge sheet is filed against petitioner and other accused alleging that accused No.2 and 3 are the borrowers of loan amount and as per the memorandum of understanding, the loan amount sanctioned in favour of accused No.2 and 3 was transferred to the petitioner's bank account. It is further alleged that petitioner with an intention to defraud the bank, colluded with accused No.2 and 3 and executed a registered sale deed in favour of a third party. The police, after investigation, filed the charge-sheet and instructed the petitioner's bank to defreeze the bank account belonging to the petitioner. The petitioner filed applications under Section 451 and 457 of Cr.P.C., seeking for defreezing of his bank accounts. However, the learned Magistrate has dismissed the said applications stating that the petitioner has not produced any material to substantiate his claim that monetary loss is caused to the petitioner. Admittedly, the petitioner is a developer and builder and by freezing his bank account, it is implied that the petitioner will be put to monetary loss, since he will not be able to carry out his day-to-day business activities. So as to protect the interest of the petitioner as well as the first informant, it would be appropriate if the bank accounts of the petitioner are defreezed by imposing certain conditions on him. Accordingly, I proceed to pass the following:
ORDER The petition is allowed.
The impugned order dated 22.12.2021 passed by the learned JMFC-I Court, Hubballi in CC No.2045/2021 rejecting the applications filed by the petitioner herein under Section 451 and 457 of Cr.P.C., is hereby set-aside and consequently said applications are allowed subject to the condition that the petitioner shall furnish bank guarantee before the learned Magistrate for a sum of Rs.16,35,000/-.
Upon petitioner furnishing such a bank guarantee for the said amount, respondent No.1 is directed to intimate the concerned banks to de- freeze the bank accounts of the petitioner forthwith."
(xiii). Section 91 Cr.P.C. only empowers the Court to summon a document and not a person. However, the same cannot be interpreted to mean that Investigating Officer during the pendency of investigation can issue a notice to the bank to de-freeze the bank account of a company. The same can be derived from the judgments in Sahil Raj (Supra), Mohammad Rizwan Ansari (Supra) and V. Plus Technology Pvt. Ltd. (Supra).
In Sahil Raj (Supra), the Court considered the import of Section 91 and Section 102(3) Cr.P.C. The Court expressed it's views regarding the scope of Section 91 Cr.P.C. in paragraph 7 of the report, which reads as under:-
"7. Thus, it is clear that the first respondent has no jurisdiction. Ini the summons issued under Section 91 Cr.P.C., the investigation officer summons the person to produce the document or other things. On the summons issued under Section 91 of Cr.P.C., account cannot be freezed."
In Mohammad Rizwan Ansari (Supra) also, Court considered the parameters of Section 91 Cr.P.C. and Section 102 Cr.P.C. The Court expressed it's views regarding the same in paragraph 6 of the report, which reads as under:-
"6. Perusal of Section 91 of Cr.P.C. reveals that it does not authorise a Court or any Police Officer to freeze the Bank Account of any person. Such power, however, is available to a Police Officer under Section 102 of Cr.P.C., with a caveat as provided in Sub-Section (3) of Section 102 of Cr.P.C., namely, the Police Officer, who has seized any property, has to forthwith report the seizure to the concerned jurisdictional Magistrate."
In V. Plus Technology Pvt. Ltd. (Supra) also, Court considered the effect of Sections 91 and 102 Cr.P.C. After having analysed the ambit and scope as well as the parameters in which, the aforesaid Sections operate the Court ultimately concluded as follows in paragraph 10 of the report;-
"10. I have heard arguments and gone through the records. It is an admitted case that u/s 91 Cr.P.C., the order of debit freeze could not have been passed. Mr. Kundu is also correct in stating that it was a procedural lapse on the part of the investigating agency to nomenclature the notice u/s 91 because the prosecuting agency has the power to debit freeze an account even though no u/s 91 Cr.P.C. but u/s 102 Cr.P.C."
(xiv). An Enforcement Case Information Report " ECIR" bearing CEIR/ALSZO/03/2023 dated 24.05.2023 based on the F.I.R./Case Crime No. 0408 of 2022 under Sections 419, 420, 467, 468, 471 I.P.C. and Section 14 of the Foreigner's Act, 1946, Police Station Beta-2, District Greater Noida (Commissionerate Gautam Buddh Nagar) as well as the charge sheet dated 09.09.2022 submitted therein has been registered.
(xv). The attachment of account can be made under the provisions of Section 17 of the Prevention of Money Laundering Act, 2002 by an officer as provided in the aforesaid Act itself. However, no steps have been taken by any officer of the Directorate of Enforcement to attach the account of the applicant or to maintain the Debit Freeze status of bank account of applicant.
(xvi). No pleading or material has been brought on record to show why the status of the bank account of applicant i.e. Debit Freeze should be maintained during the pendency of investigation of FIR under the Prevention of Money Laundering Act even when no steps have been taken by the Director of Directorate of Enforcement or his nominee to maintain the Debit Freeze status of the bank account of applicant.
26. Mr. Roopak Chaubey, the learned A.G.A.-Ist for State-opposite partyi-1 and Mr. Sikandar B. Kochar, the learned counsel representing Directorate of Enforcement-opposite party-2 in spite of their vehement opposition to this application under Section 482 Cr.P.C. could not dislodge the aforementioned facts, which stand crystallized. Therefore, what has emerged before this Court is that the proceedings in which, the bank account of applicant was got Debit Freeze has not resulted against the applicant inasmuch as, the applicant has not been charge sheeted. Secondly, an FIR has been lodged by the Directorate of Enforcement but neither the Director, Directorate of Enforcement or his nominee has taken any action in terms of Section 17 of the Prevention of Money Laundering Act to make the bank account of applicant Debit Freeze or to maintain the Debit Freeze status of the bank account of applicant. Thus, once the applicant has not been charge sheeted in the FIR during the investigation of which, the bank account of applicant was got Debit Freeze by the Investigating Officer no justifiable ground exists to maintain the same status qua the bank account of applicant.
27. As a result, the present application succeeds and is allowed.
28. The order impugned dated 24.05.2023 passed by Civil Judge (Senior Devision)/ F.T.C./Additional Chief Judicial Magistrate, Gautam Buddh Nagar in Case Crime No. 408 of 2022 under Sections 419, 420, 467, 468, 471 I.P.C., Section 14 of the Foreigner's Act, 1946 and Section 67 DIT Act, Police Station Beta-2, District Gautam Buddh Nagar is, hereby, quashed.
29. The Investigating Officer of aforementioned case crime number shall accordingly, communicate to the concerned bank to de-freeze the bank account of applicant in HDFC bank bearing Account No. 00880330002032 within a period of one month from the date of receipt of a certified copy of this order.
30. Considering the facts and circumstances of the case, the cost is made easy.
Order Date :- 31.08.2024 Vinay