2015 ALL MR (Cri) 1963
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ABHAY M. THIPSAY, J.
Mrs. Sunita Ajit Gholkar & Anr. Vs. State of Maharashtra & Ors.
Writ Petition No.711 of 2013
1st September, 2014.
Petitioner Counsel: Mr. NITEEN PRADHAN, Ms. S.D. KHOT, AMEETA KUTTIKRISHNAN
Respondent Counsel: Ms. SNEHAL V. KHAIRNAR, Mrs. S.V. SONAWANE
Criminal P.C. (1973), S.102 - Penal Code (1860), Ss.406, 408, 420, 465, 468, 477A - Seizure of bank account - Application for de-freezing accounts - Rejection on count that applications were filed after about 6 years from date of seizure of said account - Challenge - Amount standing in credit of said account was Rs.1,20,000/- only - However, total amount which was allegedly misappropriated by petitioners was about Rs.10 crores and 30 lakhs - Held, amount lying in credit of said account was not much - Further, trial was pending since quite some time and it was not clear as to when it would be over - Held, it would be proper to direct de-freezing of said account on conditions of executing a bond in sum of Rs.1,20,000/- with one surety. (Paras 10, 11)
JUDGMENT
JUDGMENT :- Rule. By consent rule is made returnable forthwith. Respondents waive service. By consent heard finally.
2. The petitioner No.1 is the accused No.2 in C.C.No.223/PW/2005 pending before the Additional Chief Metropolitan Magistrate, 19th Court, Esplanade. The case is in respect of offences punishable under sections 406, 408, 420, 465, 468, 477(A) read with 34 I.P.C. The petitioner No.2 is the husband of petitioner No.1.
3. In the course of investigation, certain bank accounts held by the petitioner No.1 came to be seized/attached by the investigating agency. One such account was one that was held by the petitioner No.1 in IDBI bank, Chembur Branch. Purporting to act under the powers vested in the investigating agency vide section 102 of Code of Criminal Procedure, (for short Cr.P.C.,) the investigating agency issued a direction to the bankers of the petitioners not to permit any operation of the said account.
4. The petitioners made an application before the learned Magistrate seeking directions for "de-freezing" of the said account, but the learned Magistrate by an order dated 10th August 2012 rejected the said application. Being aggrieved thereby, the petitioners have approached this court invoking its Constitutional jurisdiction and inherent powers.
5. Though a number of contentions have been raised in the petition challenging the legality and validity of the action of freezing of the accounts as taken by the investigating agency, in view of what transpired in the course of hearing of the petition, I do not find it necessary to discuss or deal with those contentions.
6. The amount standing in the credit of the said account is Rs.1,20,000/- only. The total amount which has allegedly been misappropriated and which is the subject matter of the case against the petitioner No.1 and the other accused is about Rs.10 Crores and 30 lakhs.
7. The learned Magistrate while rejecting the petitioners' application for de-freezing of the said account inter alia observed that the account was frozen in the year 2005, but the petitioners had applied for defreezing it only in the year 2011 i.e. after about six years from the date of the seizure of the said account. The Magistrate further observed that since the applications had been filed after about six years, there was 'no urgency to decide the application' and that the criminal case which was pending before the Magistrate would be decided in "near future".
8. Though the learned Counsel appearing for respondent No.3 has contended that there is a clear nexus between the amounts lying in the credit of the said account and the misappropriated property and further that the petitioners had made an application for de-freezing it after about six years from its seizure, in the view that I am taking it is not necessary to discuss these aspects.
9. It is not disputed before me that not much progress has been made in the trial court proceedings after the rejection of the petitioners' application for de-freezing the said account. The application was rejected by the Magistrate on 10th August 2012, wherein he expressed likelihood of trial being concluded in "near future". It cannot be lost sight of that the amount standing in the credit of the said account is not much. In the course of hearing, I have asked Mr.Pradhan, learned Counsel for the petitioners as to whether the petitioners would be ready to abide by any reasonable conditions as may be imposed by this Court, while permitting them to withdraw the amount lying in the said bank account and whether the petitioners would be willing to offer a surety in respect of the amount lying in the said bank account. Mr.Pradhan answered these questions in the affirmative.
10. In my opinion, considering that the trial is pending since quite some time and that it is not clear as to when it would be over, as also the fact that the amount lying in the credit of the said account is not much, it would be proper to direct de-freezing of the said account on certain conditions.
11. Accordingly, it is directed that on the petitioners giving an undertaking before the learned Magistrate that they shall return the entire amount lying in the credit of the said account at the point of time when it was frozen, the learned Magistrate shall permit them to operate the said account. The petitioners shall execute a bond in the sum of Rs.1,20,000/- only, with one surety in the like amount before the Magistrate, binding them to produce the said abount in the event of the Magistrate so directing at the conclusion of the trial against petitioner No.1.
The petition is disposed of in the aforesaid terms. Rule is made absolute accordingly.