Final Order 1

Order Details: Order Below EX 1
Pdf Text: Notice No.124/N/2022
ORDER BELOW EXH1
The Kotak Mahindra Bank is applicant and it has filed the
present application for defreezing the accounts freezed by police and also
for direction to release the amount of I21,38,505.16 alongwith interest in
its favour, as per the provision of section 451 of the Code of Criminal
Procedure. According to the applicant on 10/02/2021, it received an
alarm from one of its customer whereby a term deposit advised for an
amount of I10,00,000/- reflecting rate of interest @ 8% for the tenure of
12 months was purportedly issued by the applicant. In fact, applicant does
not offer such rate of interest on deposit. Upon inquiry it has been
revealed that a fulfledge fraud was piloted by accused as well as co-
conspirators. The bank has filed the complaint with Santacruz police
station and C. R. No. 68/2021 under section 420, 467 etc. came to be
registered. The accused have committed fraud and misappropriated the
substantial amount approximately I8,64,54,251/-. During investigation
accused came to be arrested and the Investigating Officer recovered an
amount of I21,38,505.16 and some articles like camera etc.
2. Further, it is contended that, the Investigating Officer vide
letter dated 20/03/2021 directed the applicant bank to debit freeze the
account of respondent and other accused. The applicant has given the
details of account number and their account holders and respective
amount laying in the said account. It is contended that, the bank has
returned the amount to innocent investors. The respondent and accused
have siphoned the funds of the bank by committing fraud and transfer the
said funds in the accounts of respondent and other. Lastly, it is prayed by
the applicant that, direction of defreezijg the account of respondent and
further direction to release the amount of I21,38,505.16 with interest in
its favour.
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3. The respondent has filed his common say to present
application and another proceeding bearing No.113/N/2022. The
respondent contended that, he has been falsely implicated in the false
offence. He is no way concerned with the alleged offence nor he has
joined any accused for siphoning the funds of the applicant. It is
contended that, previously notice case No.770/N/2021 was came to be
filed by applicant for the same relief, which has been rejected by the court
on 18/02/2022. Therefore, in view of section 362 of the Cr. P. C. the
present application is not tenable. Lastly, the respondent No.13 prayed
that, application be rejected.
4. The Investigating Officer has filed his say at (Exh.6) and
contended that, during the investigation the accounts of the respondent
and other have been freezed. It has been transpired during investigation
that, the respondent in collusion with accused siphoned the funds of the
bank and the accused has transferred the amount from the bank account
of bank customers in the account of other accused and in term the said
accused transferred the amount of I64,04,251/-. in the account of
respondent, further the respondent has make investment of
I21,38,505.16/- in the mutual funds and said amount has been freezed.
Lastly the Investigating Officer submitted that, he had no objection to
defreez the accounts of respondents and for giving the amount to the
applicant.
5. Ld. Advocate Shri Sayyed for applicant submits that,
respondent and other accused by joining hands with each other siphoned
the funds of the bank and its customer and the said amount has been
transferred in the account of respondent and other. He further submits
that, for maintaining the goodwill of the bank and for maintaining faith of
customer on the bank, the bank has returned the amount to its customers
from which accounts accused unauthorizedly transferred the amount by
piloting illegal scheme of interest on deposits. Now during investigation
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the accounts of customers have been freezed and the amount of
I19,10,695/- is laying in the account of other person, which is belongs to
the bank. Much more time is required for final decision of criminal case,
therefore, the said amount be given to the bank by defreezing the said
accounts. He further submits that, previously instituted proceeding has
been rejected on the technical ground of non making of the party to the
respondents. Therefore, the present proceeding is tenable. Lastly, the Ld.
Advocate Shri Sayyed prayed that application be allowed, as prayed.
6. Ld. Advocate appearing for respondent argued that,
application is not tenable, as previous application came to be rejected.
7. I have also heard argument of Ld. APP Shri Joshi for state.
8. Before proceed further I would like to state here that,
previously similar application came to be filed by the applicant bearing
C. C. No.770/N/2021. The copy of order passed in the said proceeding is
placed on record, which shows that, as the applicant has not made all the
persons interested in the property claimed, therefore, the said application
came to be dismissed.
9. It is to be noted that, section 362 of the Code of Criminal
Procedure provides that, court not to alter judgment or review the
judgment otherwise provided by the code of criminal procedure. I would
like to state here that, the previously instituted proceeding rejected on the
technical ground or not making the other persons having interest in the
said proceeding which cannot be said that, the said proceeding is decided
on merit and entertaining the present application cannot be said to be
alteration or review of judgment of previous proceeding. Hence, I do not
find any substance in the arguments advanced by Ld. Advocate for
respondent.
10. The main accused was the branch manager of the the
applicant bank. The Santacruz police have filed the chargesheet against
the accused persons. The copy of chargesheet with present application
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shows that, the accused and respondent have involved in the offence and
they have been siphoned the amount of applicant bank and its customer. I
would like to state here that, the entries in the accounts can be taken into
consideration during the trial of the criminal case against the respondent.
Therefore, it would not cause any prejudice to the defence of respondent.
11. I further would like to state here that, the applicant bank has
filed the pursis and the particulars of account on 17/08/2023 in
proceeding No.113/N/2022 which shows that, the bank has returned the
investments of its customers, which shows also names of customers,
account number and the amount returned to them. Considering all above
aspects, I am of opinion that, account can be defreezed and the amount
laying in the said account can be given to applicant, temporarily. I further
of opinion that, if at the time of conclusion of trial it is decided that, the
applicant bank is not entitled to receive the amount, as claimed then it can
be recovered from the bank and will be given to concern account holder.
Further, I am of opinion that, by allowing to lay the amount in the
accounts in defreez condition, is not at all proper, the amount is part of
currency, therefore, it must be circulated in the economy of the country.
Hence, I am of opinion that, the interim custody of the said amount can
be given to the applicant as discussed above. Hence, I proceed to pass
following order.
ORDER
1. The application is partly allowed.
2. The Sr. P.I. of Santacruz police station is hereby directed
that, he shall defreeze bank account of respondent
maintained in Kotak Mahindra Bank and shall release the
amount of I 21,38,505.16 with accrued interest in favour
of bank.
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3. Applicant shall execute indemnity bond of I22,00,000/-
before the PI of Santacruz police station and PI Santacruz
police station send it in the court.
4. The PI of Santacruz police station is directed to draw
proper panchnama and it be produced in the court in
criminal case No.1088/PW/2021.
5 The applicant shall file undertaking that if at the
conclusion of trial of criminal case No. 1088/PW/2021 if it
is concluded that, the applicant bank was not entitled to
receive the above amount then the said amount will be
returned to respective account holders with interest, as per
the order of the court.
Mumbai.
Date : 05/01/2024.
SRD
Sd/-
Metropolitan Magistrate,
71st Court, Bandra, Mumbai.
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Notice No.113/N/2022
ORDER BELOW EXH1
In view of (Exh.-15), (Exh.-16) to (Exh.24), (Exh.25) and (Exh.26)
(Copies of postal receipts, RPAD Track reports and returned envelops) the
respondent No.2 to No.10 have served with notice but failed to appeared
and contest the matter. Therefore, the proceeding is proceeded ex-parte
against them.
2. In view of (Exh.28) respondent No.12 Bashir Shaikh served
with notice but failed to appear and contest the proceeding. Therefore, the
proceeding is proceeded ex-parte against him.
3. Respondent No.11 appeared through Ld. Advocate but not
filed his say. Therefore, the proceeding is proceeded without say against
him.
Place : Bandra, Mumbai.
Date: 22/12/2023.
Metropolitan Magistrate,
71st Court, Bandra, Mumbai
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