Final Order 1

Order Details: Order Below EX 1
Pdf Text: 1 C.C.NO.168/N/2023
IN THE COURT OF ADDL. CHIEF METROPOLITAN MAGISTRATE,
09TH COURT, BANDRA, MUMBAI
C.C.NO.168/N/2023
Rajesh Harish Sharma …... Accused/Applicant
Vs.
The State of Maharashtra through …... Respondent
Senior Police Inspector, Khar Police
Station
ORDER BELOW EXHIBIT01
This application is filed by the accused/applicant Rajesh
Harish Sharma under Section 457 of The Code of Criminal Procedure
(for short “Code”) for defreezing the bank account in the name of the
accused and his family members and two bank lockers in Bank of
Baroda bearing Locker No.498 and Locker No.733.
2. It is the contention of the applicant that offence is
registered against the accused vide C.R.No.1149/2022 at Police Station,
Khar. The allegations against the accused are that the accused has
taken Rs.1 Crores from the informant and induced him to invest in his
company. This inducement was given in the month of August 2021.
The accused has assured the informant that in the month of October,
November2021 he will repay Rs.1,30,00,000/ to the informant. The
accused has also given postdated cheques to the informant. The
informant has transferred the amount of Rs.1 Crores by issuing cheques
in the account of Jai Durga Steel Industries in which the accused is one
of the director. Thereafter the accused refused to pay the amount of
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2 C.C.NO.168/N/2023
premium and the amount taken from the informant. It is the contention
of the accused that he is the director of Nav Durga Steel Traders
Company having its registered office at Masjid Bunder (E), Mumbai.
The informant has filed multiple proceedings against the accused. One
Civil Suit is subjudice in the Hon'ble High Court Judicature at Bombay.
The complaint under Section 138 of Negotiable Instruments Act is also
filed by the complainant against the accused. The Investigation Officer
has freezed the following accounts and lockers.
Sr.
No.
Account No. Account Name Whether
notice was
received
before
freezing
account
Balance in
account
1. 100009027425
(IndusInd Bank)
RAJESH HARISH
SHARMA
No notice
received
Rs.846/
2. 06520010001604 RUPALI SHARMA Notice
Received
by Bank
Rs.33,683.53
3. 06520120017834
(Kotak Mahindra
Bank)
VEDANT SHARMA Notice
Received
by Bank
Rs.7,283/
4. 00791530000505
(HDFC Bank)
RAJESH HARISH
SHARMA
Notice
Received
by Bank
Rs.17,327/
5. 004010110012284
(Bank of India)
RAJESH
HARISHCHANDRA
SHARMA
No Notice
received
Rs.22.363/
6. 40660647628 RAJESH SHARMA No Notice
received
Under
Rs.5,000/
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3 C.C.NO.168/N/2023
7. 441601010024085
(Union Bank of
India)
NAVDURGA STEEL
TRADERS
No Notice
received
Under
Rs.5,000/
8. 441605010050059
(Union Bank of
India)
NAVDURGA STEEL
TRADERS
No Notice
received
Under
Rs.5,000/
9. 441601010036242
(Union Bank of
India)
RAJESH SHARMA No Notice
received.
Negative
balance
10. 50200006757849
(HDFC Bank)
RAJESH HARISH
SHARMA
No Notice
received
Under
Rs.5,000/
LOCKER DETAILS
11. Bank of Baroda RAJESH SHARMA
& RUPALI
SHARMA
No Notice
received
733
12. Bank of Baroda RUPALI SHARMA No Notice
received
498
3. The offence is registered against the applicant is under
Section 420 and 409 of the Indian Penal Code. The accounts are
freezed illegally by the Investigation Officer in exercise of his powers
under Section 201 of the Code of Criminal Procedure, 1973 ( for short
'Code'). The amounts are defreeze without following procedure
prescribed under Section 102 of the Code and in contravention of the
directions issued by the Hon'ble Supreme Court in State of Maharashtra
Vs. Tapas D. Neogy (1999) 7 Supreme Court Cases 685. The
Investigation Officer is under mandatory obligation to give immediate
report of freezing of the account to the Magistrate Court having
jurisdiction and a notice to the applicant/accused. The Investigation
Officer has not given any notice to the accused. The Hon'ble Sessions
Court while releasing the accused on anticipatory bail vide order dated
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13/12/2022 has specifically observed that the transaction in between
the accused and the informant is of civil nature. On these ground
applicant prayed for defreezing of the account and the lockers
mentioned above.
4. This application is opposed by Ld. A.P.P. on the ground
that the applicant has cheated the informant to the tune of Rs.1 Crores.
It is revealed during investigation that the accused has transferred and
misappropriate the amount to various bank account and thereby
disbursed the said amount. Investigation Officer has rightly freezed the
said bank account to which amount has been transferred. The
Investigation Officer has freezed the account mentioned at Sr. No.1, 4,
5, 8 and 9. The other accounts mentioned by the applicant are not
freezed by the Investigation Officer. The chargesheet is yet to be
submitted. There is possibility that the applicant may tamper with the
said amount and destroy the valuable evidence. On these grounds Ld.
A.P.P. prayed for rejection of the application.
5. The intervenor/ informant opposed the application by filing
say. It is the contention of the informant that the accused under the
name and banner of his company Jai Durga Steel Industries Ltd. has
defrauded the informant to the tune of Rs.1,30,00,000/ by making
false representation and promise of lucrative returns of Rs.30 Lakhs
within three months. The accused has failed to repay the amount as
assured by him. The applicant is the mastermind of the cheating. The
amount is misappropriated by the accused by investing the amount in
gold or other transactions. In view of the judgment of the Hon'ble
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Supreme Court in Vinodkumar Ramchandran Valluvar Vs. State of
Maharashtra, 2011 SCC OnLine Bom 402. Under Section 102 it is not
required that a person whose account is to be seized is required to be
served with a notice.
6. The Investigation Officer opposed the application by filing
say dated 16/06/2023. It is the contention of the Investigation Officer
that the accused has purchased gold by transferring the amount from
his account to Darshana Sanjana Jewellers, Bandra. The accused
transferred total amount of Rs.67,15,000/ by purchasing gold on
27/08/2021, 01/09/2021 and 06/09/2021. The accused transferred
certain amount in the account of his father Harish Sharma and Nav
Durga Steel Company. The accused has purchased diamonds on 21st
June 2021 by transferring Rs.15,00,000/ in the account of Dolson
Jewellers. The accused transferred the amount of Rs.1 Crores in the
account of Darshana Sanjana Jewellers, Nav Durga Steel Traders and in
the account of Harih Sharma. On the basis of this investigation, the
Investigation Officer freezed the account mentioned below
Sr.
No.
Account Name Bank Name Account No. Bank Branch
1. Rajesh Sharma
Indusind Bank
Punjab National
BankPPF
HDFC Bank SB
Bank of India
100009027425
128100PPF000000
00202
0791530000505
004010110012284
Santacruz West
Santacruz West
Santacruz West
Santacruz West
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2.
3.
4.
5.
Navdurga Steel
Traders
Rupali Sharma
Harischandra
Sharma
Rajesh Sharma
(H.U.F.)
Union Bank of
India
Indusind Loan AC
but frozen
Kotak Mahindra
Bank
Bank of Baroda
(Locker)
Indusind Bank
Union Bank of
India
HDFC Bank
441605010050059
706000105801
06520010001605
76000100000882
159820026405
441601010036242
00791000129627
Bhat Bazar Masjid
Bunder
Andheri
Santacruz West
Santacruz West
Khar West
Bhat Bazar
Santacruz West
7. The applicant has filed details of frozen bank account, list of
transactions in question and statement reflecting transaction in bank
statement, the copy of anticipatory bail order passed by the Hon'ble
Sessions Court,letter dated 06/03/2023 issued by Investigation Officer
to applicant Mr. Rajesh Sharma, Rupali Sharma and Harsh Sharma, the
copy of reply issued to these letters .
8. It is the argument of Ld. Advocate for the applicant that the
accounts and lockers are sealed without complying with the provisions
of Section 102 of the Code. In support he relied on
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7 C.C.NO.168/N/2023
i) Gulam Sarvar Vs. State of Maharashtra, 2018 SCC OnLine Bom
164
ii) Muktaben M. Mashru Vs. State of NCT of Delhi and Anr. 2019
SCC OnLine Del 11509:(2019)265 DLT 651 and
iii) State of Maharashtra Vs. Tapas D.Neogy (1999)7 Supreme
Court Cases 685
In all these rulings it is held that if the account is not freeze by
following the procedure under Section 102 of the Code the freezing of
account is not legal. In all the three rulings it is directed that the
account freezed by the Investigation Officer are to be defreezed.
9. Ld. Advocate for the intervenor argued that in the two
judgments referred above it is not necessary that the accused should be
given notice before defreezing of the account by the Investigation
Officer. Ld. A.P.P. argued that the amount is transferred in the different
account by the accused which is obtained by cheating the informant. If
the accounts and lockers are directed to be defreezed then there is every
possibility that the accused will misuse the amount and the gold
purchased out of this cheated amount.
10. This application is filed by the applicant Rajesh Harish
Sharma. In this application he contended that the accounts standing in
the name of his wife Rupali Sharma, son Vedant Sharma and lockers
standing in the name of Rupali Sharma are to be defreezed. The
applicant has not filed on record any authority by these persons to file
present application on their behalf for defreezing of their account. In
absence of any written authority to the applicant the locker standing in
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8 C.C.NO.168/N/2023
the name of Rupali Sharma, account standing in the name of Vedant
Sharma, account standing in the name of Rupali Sharma cannot be
directed to be defreezed or desealed.
11. On careful scrutiny of the say filed by the Investigation
Officer the accounts mentioned at Sr. No.1,4,5, 8 and 9 are sealed by
the Investigation Officer during investigation of this offence. The other
accounts are not freezed by the Investigation Officer during
investigation of this offence. The accounts which are not freezed
cannot be ordered to be defreezed.
12. In view of the say filed by the Investigation Officer and Ld.
A.P.P. account at Sr.No.1,4,5,8,9 and locker in the name of the
applicant is in question.
13. The Hon'ble Bombay High Court in Case of Gulam Sarvar
Vs. State of Maharashtra, by referring the judgment of Tapas D. Neogy
and Teesta Setalvad, referred above, has observed in Para (13) that “
13. Power under Section 102 of the Code of Criminal Procedure can be
invoked by a Police Officer only when the property to be seized is
alleged or suspected to have been stolen or which is found under such
circumstances as to create suspicion of commission of any offence, so
that such seizure provides effective assistance to him in the
investigation. To exercise this power, it is not necessary for the
Investigating Officer to justify the seizure of bank account by collecting
evidence as if a trial is being held and it is enough for him to justify his
action by reasonably showing that the amount in the account creates a
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reasonable suspicion of commission of crime. However,it is necessary in
a case where account has been seized or frozen under Section 102(1) of
Cr.P.C., it being a property not capable of being transported to Court or
actually held in custody by the Police, to report the seizure to the
Magistrate, as required under SubSection(3) of Section 102 Cr.P.C.. A
useful reference in this regard may be had to the cases of State of
Maharashtra Vs. Tapas D. Neogy, reported in (1999)7 Supreme
Court Cases 685 and Teesta Atul Setalvad Vs. State of Gujarat, Criminal
Appeal No.1099/2017 decided by Hon'ble Apex Court on 15.12.2017”.
14. In this case though the allegations are levelled that the
amount is transferred in the different account by the applicant. It is
also alleged that the applicant has purchased gold and diamonds by
receiving the amount from the informant. The Investigation Officer as
well as Ld. A.P.P. has failed to show or produce any document to
establish that the compliance under Section 102(3) of the Code is
made by the Investigating Officer by informing the seizure of the
accounts. The Investigation Officer failed to comply the mandatory
requirements for lawfully seizing of the accounts and lockers. The stage
of investigation is not clearly disclosed by the Investigation Officer. Till
today the chargesheet is not filed. In absence of mandatory
compliance of subsection 3 of Section 102 of the Code and the law laid
down by the Hon'ble High Court and the Hon'ble Supreme Court in the
decisions referred above and relied by the applicant, the accounts which
are in the name of the applicant are to be defreezed and the joint locker
No.733 referred above is to be defreezed. Following order is passed.
O R D E R
1. Application is partly allowed.
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2. Accounts mentioned in Para 20 of the application in Chart
at Sr. No.1, 4, 5, 8, 9 and Locker No.733 are defreezed on the following
conditions in Crime No.1149/2022
i) The applicant shall furnish bank guarantee of
Rs.2,00,000/(Rupees Two Lakh only) and Indemnity
Bond of Rs.5,00,000/(Rupees Five Lakh only).
ii) The Investigation Officer shall prepare list of
defreezed accounts by mentioning balance as on
31/10/2023 and attached the same alongwith the charge
sheet.
iii) The Investigation Officer is directed to desealed the
Locker No.733 in presence of bank official, joint holders,
two panchas and the applicant.
iv) The Investigation Officer shall prepare list of
articles found in the locker No. 733 by drawing
panchanama and taking photographs of the articles.
v) The Investigation Officer is directed to attach the
photographs of the articles and panchanama alongwith
the chargesheet.
Sd/
( K.H.Thombre )
Addl. Chief Metropolitan Magistrate,
Date : 01.11.2023 9th Court, Bandra, Mumbai
vnh
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