Madras High Court
P.Ramanathan vs The State Of Tamil Nadu Represented By on 28 July, 2017
Author: S.S.Sundar
Bench: S.S.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.07.2017
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
W.P.(MD) No.14076 of 2017
and
W.M.P.(MD)Nos.11009, 11010 and 11011 of 2017
P.Ramanathan ...Petitioner
-Vs-
1.The State of Tamil Nadu represented by
The Secretary,
Department for Home (Court-II),
Fort St.George,
Chennai ? 600 009.
2.The District Revenue Officer / Competent Authority,
Fort St.George, Chennai-600 009.
3.The Additional Director General of Police,
(Economic Offences Wing),
Anna Nagar, Chennai.
4.The Deputy Superintendent of Police,
Economic Offence Wing II,
Madurai. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
to issue a Writ of Certiorari Mandamus, to call for the records relating to
the impugned G.O.Ms.No.1697, Home (Courts, IIA) Department, dated 24.12.1999
and quash the same as illegal and contrary to provisions of Tamilnadu
Protection of Interest of Depositors (in Financial Establishments) Act, 1997
and Rules, 1997.
For Petitioner : Mr.B.Saravanan
For Respondents: Mr.A.K.Baskara Pnadian
Special Government Pleader.
:ORDER
This Writ Petition has been filed for issuing a Writ of Certiorari, to call for the records relating to the impugned G.O.Ms.No.1697, Home (Courts- IIA) Department, dated 24.12.1999 and to quash the same as illegal and contrary to provisions of Tamilnadu Protection of Interest of Depositors (in Financial Establishments) Act, 1997 and Rules, 1997.
2.Heard the learned Counsel appearing for the petitioner and the learned Special Government Pleader appearing for the respondents.
3.The petitioner stated that he had incorporated a company along with others under the name and style of ?Zara Portfolio Management (P) Limited?. It is further stated that some complaints have been lodged before the respondents as against the petitioner company and particularly a criminal case in Crime No.01 of 2010 has been registered for the offences punishable under Sections 120B, 406 and 420 of IPC and Section 5 of the Tamilnadu Protection of Interest of Depositors Act, 1997 (herein after TNPID Act).
4.The learned Counsel for the petitioner submitted that the role of police is not defined either directly or by necessary implication under the provisions of TNPID Act and that no provision is made under the Act, as to the manner of investigation under the said Act. It is further stated that the Act confers all the powers including investigation and deal with the property attached under the Act only in favour of the Competent Authority. It is further stated by the learned Counsel for the petitioner that the impugned Government Order has taken away the powers conferred upon the Competent Authority under the TNPID Act.
5.It is further submitted that the respondents have registered the cases only under the provisions of TNPID Act, by virtue of impugned Government Order which is illegal. It is further stated that the second respondent in this writ petition has been appointed as a Competent Authority, vide G.O.Ms.No.1049, Home (Courts.IIA) Department, dated 26.08.2004 and that by virtue of impugned Government Order, the second respondent is prevented from discharging the function under the Act.
6.By the impugned Government Order, the Government has created an Economic Offences Wing II (Financial Institutions) headed by Inspector General of Police at State level, exclusively to deal with the cases relating to the non-banking financial companies and unincorporated financial institutions.
7.The main contention of the petitioner in this writ petition is that the Act confers all the powers in favour of the Competent Authority. In the absence of any provisions under the Act to enable the police authorities to investigate the offence under the Act. It is submitted that the impugned Government Order, is passed depriving the Competent Authority all his power to prosecute the offenders under the provisions of TNPID Act and hence it is illegal and contrary to the Act. It is also stated that the impugned Government Order has been passed directly conflicting with the provisions of the Act.
8.This Court is not in a position to accept the prime submissions of the learned Counsel for the petitioner that the Act confers all the powers only in favour of the Competent Authority. Section 4 of the TNPID Act reads as follows :
Competent authority" The Government may, by notification, appoint an authority herein after called "the Competent authority" to exercise control over the properties attached by the Government under section 3. (2) The Competent authority shall have such other powers as may be necessary for carrying out the purposes of this Act.
(3) Upon receipt of the orders of the Government under section 3, the Competent authority shall apply within fifteen days to the special court constituted under this Act for making the ad-interim order of attachment absolute.
(4) An application under sub section (3) shall be accompanied by one or more affidavits, stating the grounds on which the belief that the Financial Establishment has committed any default or is likely to defraud, is founded, the amount of money or value of other property believed to have been procured by means of the deposit, and the details, if any, of persons in whose name such property is believed to have been invested or purchased out of the deposits or any other property attached under section 3,
9.From the language employed, it can be seen that the competent authority is appointed only to exercise the control over the properties attached by the company under Section 3 of the Act. It is to be noted that the Act does not contemplate any prescribed procedure for the investigation and enquiring the complaint arising under the Act. When no special procedure with regard to the investigation and enquiry prescribed by the Act, the procedure laid down in the Code of Civil Procedure has to be followed. Section 4 of Cr.P.C.,1973 can be usefully referred to in this regard:
?4. Trial of offences under the Indian Penal Code and other laws (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences?.
10.Hence, all offences under any other law has to be investigated, enquired into, tried and deal with according to the procedure of Cr.P.C., subject to any other special provisions under any special enactment. Hence, the submission of the learned Counsel for the petitioner has no merits.
11.The learned Additional Public Prosecutor, relied upon a judgment of a learned Single Judge of this Court, in the case of P.S.Chellamuthu and others vs The State by Deputy Superintendent of Police, Economic Offence Wing-II, Coimbatore and others in Crl.O.P.No.21711 and 35339 of 2007. It has been held therein that there is an ambiguity in respect of the investigation and enquiry into the complaint under TNPID Act. It has been held that the Act does not hold the Code of Criminal Procedure in the field of investigation and enquiry with reference to the offence alleged to have been committed under Section 5 of TNPID Act. In the judgment referred to above, it has been further held as follows:
?42. Under the TNPID Act, the competent authority has not been empowered to embark upon investigation into the offences contemplated under section 5 of the TNPID Act. Even assuming for the worst case, without conceding, that the competent authority has been empowered to investigate the offences under section 5 of the TNPID Act, there is no embargo for the respondent police who received complaint from the aggrieved depositors to investigate the offence under the TNPID Act along with other offences alleged to have been committed under the Indian Penal Code as per the above verdict of the Supreme Court.?
12.The learned Additional Public Prosecutor, relied upon yet another judgment of the Honourable Division Bench of this Court, where there was an occasion to consider similar issue. In the case of Helios and Matheson Information Technology Limited vs The State represented by the Deputy Superintendent of Police, DOW-II in W.A.No.1227 of 2015, the Honourable Division Bench of this Court, after specifically framing the question and after referring to Section 4(1) of Cr.P.C., specifically observed that Section 4(1) of Cr.P.C., is not inconsistent in the provisions of TNPID Act. In paragraphs 79, 80 and 81, the Honourable Division Bench of this Court has held as follows:
?79. Section 4(1) of the Code of Criminal Procedure states that all offences under the IPC shall be investigated, inquired into, tried and otherwise dealt with, according to the provisions contained in the Code. Sub-section (2) of Section 4 makes even the offences under any other law, liable to be investigated, inquired into, tried and otherwise dealt with, according to the provisions of the Code, subject however to any enactment that regulates those things.
80. We do not know how any of the above provisions is inconsistent with the provisions of the TNPID Act. Since TNPID Act provides for the constitution of a Special Court, the provisions of the Code in so far as they relate to the inquiry and trial of the offences would stand excluded, to a limited extent, by virtue of Section 4(2) of the Code read with Section 14 of the TNPID Act.
81. But TNPID Act by itself does not lay down any procedure either for investigation or for trial of an offence punishable under Section 5. This is why Section 13(1) of the TNPID Act mandates the Special Court to follow the procedure prescribed in the Code, for the trial of warrant cases, while trying an accused under the TNPID Act. Sub-section (2) of Section 13 of the TNPID Act goes a step further by making the provisions of the Code applicable to proceedings before a Special Court. It also contains a deeming fiction making a Special Court to be a Court of the Magistrate?.
13.Having regard to the specific provisions under Section 4 of Cr.P.C., and the provisions of TNPID Act, this Court has no hesitation to hold that the contention of the learned Counsel for the petitioner do not hold any water and the writ petition is liable to be dismissed for want of merits. Accordingly, the Writ Petition is dismissed.
14.Despite the fact that the Government Order was issued in the year 1999 and several cases have been registered and tried by following the procedure prescribed under Cr.P.C., subject to the powers conferred upon the Competent Authority and the special Court constituted under the Act, the petitioner has filed the writ petition in the year 2017 after a lapse of 18 years. The petitioner failed in his attempt, challenging the proceedings in C.C.No.25 of 2013. Though the petitioner has disclosed the dismissal of the petition filed by the petitioner and others in Crl.O.P.No.10663 of 2014, it is to be noted that this Court has categorically held that the Honourable Supreme Court had already rejected the grounds raised by the petitioner in the quash petition. The petitioner has raised similar issue even in Crl.O.P.No.10663 of 2014. In view of the conduct of the petitioner, this Court is inclined to pass the following order:
15.The Writ Petition is dismissed with a cost of Rs.5,000/- payable to the credit of the Hon?ble Chief Justice Relief Fund, Madurai Bench of Madras High Court, Madurai, within a period of two weeks from the date of receipt of a copy of this order.
16.Post the matter for reporting compliance after two weeks from the date of issuance of a copy of this order.
To
1.The Secretary, Department for Home (Court-II), Fort St.George, Chennai ? 600 009.
2.The District Revenue Officer / Competent Authority, Fort St.George, Chennai-600 009.
3.The Additional Director General of Police, (Economic Offences Wing), Anna Nagar, Chennai.
4.The Deputy Superintendent of Police, Economic Offence Wing II, Madurai.
.