-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL WRIT PETITION NO.1084 OF 2008 Mr.Shaukatali Yakub Khan Aged 58 yrs., Occu: Journalist Residing at 603, Husain Patel Marg, Mazagaon, Mumbai--400 010. : Petitioner (Orig.Accused) V/s. The State of Maharashtra Through the Crime Branch, Economic Offences Wing, Unit-1, Mumbai--400 001. : Respondent (Orig. Complainant) ... Mr.Mubin H. Solkar for the petitioner. Mr.Y.M.Nakhawa, Addl. Public Prosecutor for the State. ... CORAM : A.A.KUMBHAKONI,J. DATE : MAY 23, 2008. ORAL JUDGEMENT Rule. Rule made returnable forthwith, by consent of parties. -: 2 :- Mr.Y.M.Nakhawa, the learned Addl. Public Prosecutor for the State, waives service. Heard the learned counsel for the parties. 2. The petitioner applied to the trial Court for re-opening his Savings Bank account no.01/020203 with Corporation Bank, Fort Branch, Mumbai, which account has been freezed by the police. This application of the petitioner bearing no.72/N/2008 in C.C.No.361/PW/2008 has been rejected by the A.C.M.M. 3rd Court, I/C. 37th Court, Esplanade, Mumbai, by order dated 7.5.2008. The petitioner has, therefore, filed the present Petition, inter alia, challenging the said order dated 7.5.2008. 3. The petitioner is accused in C.R. no.185/2007 registered under section 420 of the Indian Penal Code. An F.I.R. was filed on 31.10.2007 by the complainant alleging commission of an offence by the petitioner under section 420 of the Indian Penal Code. It is not necessary to set out herein in detail the case of the complainant. Suffice it to say that the case of the complainant is that the petitioner herein collected Rs.45,000/- (Rupees Forty Five Thousand only) from the complainant, promising employment and that employment was not provided to the complainant. Anticipatory bail was granted to the petitioner by the Principal Judge, City Civil & Sessions -: 3 :- Court, Greater Mumbai, by an order dated 7.1.2008, a copy of which is produced at exh.‘C’ in the present proceedings. The petitioner surrendered before the trial Court on 28.1.2008 and was remanded to judicial custody. Thereafter, the petitioner had been released on bail on 12.2.2008. 4. After completion of the investigation, on 21.4.2008, charge-sheet has been filed and the case is pending before the lower Court for trial. 5. In the meanwhile, it appears that the police have frozen the aforesaid Bank Account of the petitioner. It is the case of the petitioner that in his Bank account, an amount of Rs.1,88,505/- is lying. The petitioner, consequently, filed the aforesaid application in the trial Court claiming that the aforesaid amount was saved by him for educational expenses of his daughter and that this amount was immediately required for that purpose. It is further contended by the petitioner that the petitioner has already deposited an amount of Rs.45,000/- with the police which amount, according to the complainant, was paid by the complainant to the accused as per the case tried to be made out by the complainant in the F.I.R. 6. In addition to the aforesaid case tried to be made out -: 4 :- by the petitioner before the trial Court in the present proceedings, the petitioner has also tried to make out an additional ground for withdrawal of the amount, viz., to incur medical expenses (coronary angiography suggested by Dr.B.K. Goyal, Interventional Cardiologist, to the petitioner), in view of his heart ailment. In support of such contention, xerox copy of the document signed by Dr.B.K.Goyal dated 14.1.2008 is produced by the petitioner at exh.‘F’ to the present proceedings. 7. The learned counsel appearing on behalf of the petitioner submitted that the freezing of the Bank account of the petitioner by the police is wholly illegal as there is no material collected by the police during the investigation to show that the amount lying in the said Bank account of the petitioner was either stolen or that the same was found under circumstances which created suspicion about the commission of any offence. It is contended that consequently, the provisions of section 102 are not at all attracted which otherwise would have empowered the police to freeze the Bank account. He further contended that no report of such freezing has been submitted to the learned Magistrate by the petitioner as required by the aforesaid provisions of law and that on this ground also, the freezing is unsustainable. The learned counsel further makes a grievance that neither any -: 5 :- notice nor any intimation of the freezing was issued/served by the police to the petitioner and, therefore, such freezing was wholly illegal. The learned counsel relies on the judgements delivered by the Madras High Court in R. Chandrasekhar v. Inspector of Police, Salem, reported in 2003 Cri.L.J. 294. He also placed reliance on another decision of the Madras High Court delivered in B. Ranganathan v. State, reported in 2003 Cri.L.J. 2779. 8. I have also heard the learned Addl. Public Prosecutor for the State, who strongly opposed the present application. The learned Addl. Public Prosecutor has drawn my attention to the grounds on which the learned lower Court has rejected the aforesaid application of the petitioner by the impugned order dated 7.5.2008. 9. I have considered the rival submissions of both the parties and I have also perused the relevant documents with the assistance of both the counsel. 10. At the outset, it is pertinent to note that in the F.I.R., allegations of general nature to the effect that the petitioner has cheated others, apart from the complainant, are not made. Therefore, one of the grounds on which the application of the petitioner has been -: 6 :- rejected by the trial Court vide its impugned order dated 7.5.2008 that it is likely that some more complainants may come forward with complaints similar to the one made by the present complainant is without any substance. Moreover, admittedly, since the filing of the present F.I.R. dated 31.10.2007, the police have not received any fresh complaint by any new complainant. 11. The other ground on which the application of the petitioner has been rejected by the trial Court is that according to the Investigating Officer, the investigation is still pending. On the face of the fact that the charge-sheet has been filed in the present case on 21.4.2008, such a contention of the Investigating Officer that the investigation is still going on could not have been accepted by the trial Court. 12. The third ground set out by the trial Court is that the offence involved in the present case is of economic nature. However, it ought to been appreciated that the complainant on 8.2.2008 itself has already deposited the entire amount of Rs.45,000/- which, according to the complainant, was paid to the petitioner by the complainant. A copy of the panchanama dated 8.2.2008 in support of this fact is produced in the present case by the petitioner at exh.‘E’. Consequently, in view of the -: 7 :- provisions of section 102 of the Cr.P.C., the aforesaid reason cannot be accepted in support of the impugned order. 13. The learned Addl. Public Prosecutor was unable to produce any report made by the Investigating Officer as required by the provisions of section 102 of the Cr.P.C. Admittedly, no notice or intimation regarding freezing of the account of the petitioner has been given to the petitioner. Thus, it is ex facie clear that the freezing of the Bank account of the petitioner has been effected without following the due procedure laid down in section 102 of the Cr.P.C. 14. Moreover, it is not the case of the prosecution that the amount which is lying with the Bank account in issue is either alleged or suspected to have been stolen money or that the same was found under circumstances which created suspicion about the commission of an offence, which are the pre-requisite conditions for applicability of the provisions of section 102 of the Cr.P.C. 15. On all the aforesaid counts, I hold that the freezing of the Bank account in issue of the petitioner is unsustainable in law and in view of the facts of the case. The contention of the learned counsel appearing on behalf -: 8 :- of the petitioner that the trial presently pending before the lower Court will take long time and that pending the trial, lying of the money idle in the Bank account will serve no purpose is with substance and needs to be accepted. In this regard, in ground no.(xviii) of the present petition, the petitioner has shown readiness and willingness to execute a bond undertaking to produce the aforesaid amount of Rs.1,88,505/- (Rupees One Lakh Eighty Eight Thousand Five Hundred Five only) before the Court as and when required. In my view, if the petitioner is directed to execute such a bond undertaking, it will serve the requisite purpose, instead of keeping such amount in the account idle which is seized by the police in violation of the aforesaid provisions of law, viz., section 102 of the Cr.P.C. 16. In view of the aforesaid observations and conclusions, I may not go into the correctness or otherwise of the reasons set out by the petitioner for withdrawal of the aforesaid amount. In any case, in my view, these reasons are irrelevant for the consideration of this petition. 17. In view of the aforesaid facts and circumstances of the case and the conclusions drawn by me, the present petition is disposed of finally with the following order:- -: 9 :- O R D E R (i) The petitioner shall submit with A.C.M.M. Court, Esplanade, Mumbai, the appropriate bond undertaking to the satisfaction of that Court to produce the entire amount lying in the Bank Account no.01/020203 standing in the name of Mr.Shaukatali Yakub Khan, resident of 603, Husain Patel Marg, Mazagaon, Mumbai--400 010, with Corporation Bank, Fort Branch, Mumbai, before the Court as and when ordered accordingly. (ii) Only upon the petitioner submitting such a bond undertaking, the order passed by the A.C.M.M. 3rd Court I/C. 37th Court, Esplanade, Mumbai, in 72/N/2008 filed in C.C.No.361/PW/2008 will stand quashed and set aside and the original application filed by the petitioner at exh.‘G’ to this petition shall stand allowed. Consequently, only upon the petitioner submitting such a bond undertaking, freezing of Savings Bank Account no.01/020203 standing in the name of Mr.Shaukatali Yakub Khan, resident of 603, Husain Patel Marg, Mazagaon, Mumbai--400 010, with -: 10 :- Corporation Bank, Fort Branch, Mumbai, will stand quashed and set aside. (iii) The rule is made absolute accordingly. (A.A. KUMBHAKONI, J.)