Allahabad High Court
Concept Infravision Pvt.Ltd. vs State Of U.P. And Another on 24 November, 2022
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 16.11.2022 Delivered on 24.11.2022 Court No. - 84 1. Case :- APPLICATION U/S 482 No. - 33142 of 2022 Applicant :- Concept Infravision Pvt.Ltd. Opposite Party :- State of U.P. and Another Counsel for Applicant :- T. Islam Counsel for Opposite Party :- G.A.,Priyanka Midha 2. Case :- APPLICATION U/S 482 No. - 33129 of 2022 Applicant :- Concept Capital Infra Projects Pvt. Ltd, Opposite Party :- State of U.P. and Another Counsel for Applicant :- T. Islam Counsel for Opposite Party :- G.A.,Priyanka Midha,Ram M. Kaushik 3. Case :- APPLICATION U/S 482 No. - 33136 of 2022 Applicant :- Suninder Sandha Opposite Party :- State of U.P. and Another Counsel for Applicant :- T. Islam Counsel for Opposite Party :- G.A.,Priyanka Midha Hon'ble Saurabh Shyam Shamshery,J.
1. This is second round of litigation on behalf of accused person/applicant with the prayer to defreeze his bank accounts, freezed in a criminal proceedings, i.e., Criminal Case No. 10076 of 2017 (State vs. Suninder Sandha), arising out of Case Crime No. 1233 of 2016, under Sections 420, 467, 471, 468, 406 IPC, Police Station Sector-20 NOIDA, District Gautambudh Nagar, where applicant is accused. The first round of litigation travelled upto Supreme Court wherein the order not to defreeze the bank account was affirmed mainly on ground that investigation was still not over and Supreme Court vide order dated 12.02.2018 passed in Special Leave Leave to Appeal (Crl.) No. 1126 of 2018 observed that since meanwhile charge sheet was submitted, therefore, applicant can approach the Magistrate afresh raising all the contentions which will be considered in accordance with law.
2. In the above background after filing of charge sheet on 08.05.2017 applicant moved before Magistrate afresh to defreeze the bank accounts. The application was rejected vide order dated 14.09.2021 and revision thereof was also dismissed on 25.07.2022. Both the orders are impugned in these three applications filed before this Court under Section 482 Cr.P.C.
3. Sri D.N. Gobhurdhan, learned Senior Advocate assisted by Sri T. Islam, learned counsel for applicant, vehemently argued that Investigating Officer has not followed the due procedure prescribed under Section 102 Cr.P.C. and for that he placed reliance on Teesta Atul Setalvad vs. State of Gujarat, (2018) 2 SCC 372; State of Maharashtra vs. Tapas D. Neogy (1999) 7 SCC 685; M. Adithya Cholan and others vs. The Union of India and others 2015 SCC OnLine Mad. 6729; Sri Jayendra Saraswathy Swamigal (II), T.N. vs. State of T.N. and others (2005) 8 SCC 771 and various other judgments also. Learned Senior Advocate further argued that in all alleged crime proceeds were only Rs. 6.17 crores and that applicant is ready to deposit Rs. 8 crores without prejudice to his right and prayed that freezed bank account be defreezed.
4. Sri Tanveer Ahmad Mir, Advocate assisted by Mrs. Priyanka Midha, learned counsel appearing on behalf of complainant submitted that arguments with regard to non observance of procedure prescribed under Section 102 Cr.P.C. was rejected by a reasoned order in the first round of litigation affirmed upto Supreme Court, therefore, these submissions cannot be re-agitated before this Court. He read out the part of impugned order passed by Magistrate concerned to emphasize that there are two other FIRs against applicant registered at Delhi and proceeds of crime would be much more than the figure given by learned Senior Advocate appearing for applicant. In order to save the hard earned money of flat buyers the prayer to defreeze the account may not be allowed. He placed reliance on a judgment passed by Division Bench of this Court in Amit Singh vs. State of U.P. and others (Criminal Misc. Writ Petition No. 11201 of 2021), decided on 18.04.2022 that sub-section (3) of Section 102 is directory in nature and once the Court has been informed about freezing of bank account on an application moved by Investigating Officer, the requirement of statue is fulfilled.
5. I have heard learned counsel for parties at length and perused the material available on record as well as the case laws cited by both parties.
6. From perusal of record available with applications the allegation against applicant is siphoning of amount deposited by flat buyers. Charge sheet is not on record, therefore, it cannot be said that crime proceeds was only about Rs. 6 crores. However, crime proceeds of the cases filed in Delhi against applicant cannot be included in the present case as nothing has come on record that accounts in question are also freezed in pursuance of two criminal proceedings pending in Delhi. It was upto the Investigating Officer of said two FIRs to defreeze the bank accounts of applicant.
7. As held in Amit Singh (supra); Teesta Atul Setalvad (supra) and Sri Jayendra Saraswathy Swamigal (supra), in order to lift the seizure of bank accounts the Court concerned has to scrutinize whether the account freezed is required to remain freezed till conclusion of trial or not.
8. So far as argument with regard to observance or non observance of due procedure prescribed under Section 102 Cr.P.C. is concerned, the issue has already been discussed and settled in the first round of litigation and there is no reason to take a different view from the view of Coordinate Bench whereby it has held that:
"The Apex Court in State of Maharashtra Vs. Tapas D.N. Neogy, 1999 (7) SCC 685, after considering the divergent views taken by the different high courts with regard to the power of seizure under Section 102 of the Code, and whether a bank account can be held to be a "property" within the meaning of Section 102(1) of the Code sought no justification to give any narrow interpretation to the said provision. It went on to hold that the bank account of the accused or any of his relations is "property" within the meaning of Section 102 of the Code and a police officer during investigation can cease or prohibit the operation of the said account, if such assets have direct links with the commission of the offence under investigation. Thus, various judgements of the High Courts cited by learned counsel for the applicant on the proposition that powers under Section 102 of the Code, are to be exercised only when discovery of a property leads to suspicion of a commission of an offence, does not represent the correct statement of law in view of Neogy (supra), wherein it has been held that if the property seized has links with commission of an offence under investigation, power under Section 102 of the Code can be exercised.
The Apex Court in a recent decision in Teesta Atul Setalwad Vs. State of Gujarat, Criminal Appeal No. 1099/ 2017 decided on 15.12.2017 reiterated the view taken in Niyogi (supra), when it held that there is no room to countenance the challenge to the action of seizure of a bank account of any person, which may be found under circumstances creating suspicion of the commission of any offence.
The courts below refused to defreeze the accounts primarily on the ground that investigation is underway, challenge to seizure had already been rejected by this Court on 22.12.2016 in Criminal Misc. Writ Petition No. 25487 of 2016 and subsequent to the lodging of the F.I.R, alleging siphoning off Rs.6.17 cr, an additional tainted amount of Rs.12 cr has also surfaced.
The learned counsels for the applicant vehemently urged on the basis of certain documents/ transactions to demonstrate that the I.O, concerned is acting at the dictates of the informant, who is bent upon in squeezing the liquidity held by the applicant and his companies under the pretext that the said amount is tainted as being that of the investors, and also the fact that the alleged seizure was neither reported to the superior police officer or to the Magistrate, as envisaged under law, which was sought to be controverted with equal vehemence by the learned Senior Counsel for the informant including the learned A.G.A, that the seizure was reported to the learned Magistrate, as is indicated in the impugned order, correctness of which is not under challenge."
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.
10. In view of above discussion, present applications are disposed of with following directions:
(I) Trial Court shall frame charge under Section 240 Cr.P.C. in accordance with law after crossing the stage of Section 239 Cr.P.C. within a period of three weeks from today and conclude trial expeditiously, preferably within a period of one year thereafter, if there is no legal impediment.
(II) If the accounts in question are not defreezed in pursuance of two criminal cases pending against applicant within the jurisdiction of National Capital Territory of Delhi, the Trial Court after framing of charge, shall permit the applicant to withdraw or break the FDR of amount of Rs. 52,42,371/- (i.e., lowest FDR) from Account No. 50300146511900 for his livelihood during pending trial.
(III) During trial if Court concerned make out a definite opinion about proceeds of crime, on an application of applicant, it may take a reasoned decision to defreeze or not to defreeze the bank accounts protecting the rights of victims in terms of crime proceeds, however, any such application shall not be come a ground to delay the trial.
Order Date :- 24.11.2022 AK