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2012 DIGILAW 394 (PAT)

Seema Rani Choudhary v. State of Bihar

2012-03-02

HEMANT KUMAR SRIVASTAVA

body2012
JUDGMENT Hemant Kumar Srivastava. J. – This petition under Section 482 of the Cr PC has been filed on behalf of the petitioner. Seema Rani Choudhary, who is an accused in Kotwali P.S. Case No. 26 of 2009 registered under Sections 406. 420. 467. 468. 471, 120-B of the Indian Penal Code, for quashing the order dated 25-08-2010 passed by learned Judicial Magistrate-1st Class. Patna. 2. I have already heard all the concerned parties and with consent of them, this petition is being disposed of at the stage of admission itself. 3. The facts giving rise to this quashing petition; are that Opposite Party No.2, namely. Mohan Kumar Khandelwal gave a written report to officer-in-charge of Kotwali Police Station. Patna alleging therein that on 20-01-2009, a cheque issued by him in favour of Maa Kamakhya Fuel Centre, Naugachia, was dishonoured on account of insufficient money in his account and, thereafter, he contacted the concerned bank and, then it was detected that Rs 1.00,24,000/- was withdrawn from Ws account by using Ws old cheques. It was also detected that four cheques/drafts amounting to Rs 39,96,000/- had been deposited in the accounts of one, Heeranand Jha and Babita Jha and the aforesaid amount was withdrawn by the aforesaid persons on 17-01-2009. He further alleged in Ws petition that his one staff namely, Paramhans Pandey in connivance with some other persons committed the above- said crime. 4. On the basis of above-said written report of the Opposite Party No.2, Kotwali P.S. Case No. 26 of 2009 was registered under Sections 406, 420, 467, 468, 471, 120-B of the Indian Penal Code against Paramhans Pandey and five others. 5. The matter was investigated and in course of investigation, it came to light that the part amount of the above-said money had been deposited in Account No. 1383329145 of Central Bank of India, Patelnagar Branch, Patna and Account No. 10287407457 of State Bank of India, Rajbanshinagar Branch, Patna and aforesaid accounts had been opened in the name of the petitioner, Seema Rani Choudhary. 6. On 21-01-2009, the Investigating Officer of the aforesaid case wrote a letter to the Branch Managers of State Bank of India, Rajbanshinagar Brunch, Patna as, well as to the Central Bank of India, Patelnagar Branch, Patna requesting both the aforesaid bank officials to stop the operation of above-said two bank accounts which stand in the name of petitioner, Seema Rani Choudhary. It is relevant to mention here that after conclusion of the investigation, police submitted charge-sheet against the petitioner and some other co-accused persons for the above-said offences, 7. Petitioner, Seema Hani Chaudhary filed a petition before learned Court below for release of the money and permission to operate her above-said bank accounts and the learned Court below, having heard the parties, disposed of the above-said petition along with some other petitions by the impugned order holding that the genuineness of the claim with regard to the amount recovered in the above-said case, can only be ascertained after conclusion of the trial and at this stage, it would not be proper to make any order in this respect. 8. Learned counsel appearing for the petitioner challenged the validity of the impugned order and submitted that neither the police nor the bank officials had any power to seize the bank accounts of the petitioner. It is further contended by him that as a matter of fact, the husband of the petitioner is a petty, contractor and he was invisible partner of the company of the informant. It is further contended by him that in course of above-said business work, the informant issued banker's cheque of Rs 1.00, 24.000/- only and also issued an authority letter in the name of petitioner's husband but later on, he lodged this case with mala fide intention and that is why, a cutting has been made in the amount of first information report. It is further contended by him that neither has informant stated in his first information report nor in course of investigation that the cheques/drafts were forged and the aforesaid cheques/drafts do not bear his signature and, therefore, the aforesaid fact clearly suggests that the cheques/drafts in question, had been issued by the informant himself in course of business transaction. It is further contended by him that under Code of Criminal Procedure. It is further contended by him that under Code of Criminal Procedure. Section 102 of the Cr PC gives power to police officer to seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which may create suspicion of the commission of any offence and one of the important ingredients of the aforesaid Section 102, Cr PC is that the property in question, must be stolen property or should have been found to have some nexus with the offence which is under investigation of a police officer concerned. It is further contended by him that so far as present case is concerned, the Investigating Officer could not succeed to establish in course of investigation that the amount found in the accounts of petitioner, is part of the amount which is said to have been withdrawn from the account of Opposite Party No.2 and, therefore, there is no link between the, amount withdrawn from the account of Opposite party No.2 and the amount deposited in the accounts of the petitioner. It is further contended by him that in the aforesaid circumstances, Section 102 of the Cr PC is not applicable in the present case and, there-fore, the learned Judicial Magistrate committed an error in rejecting the prayer. 9. Learned counsel appearing for the petitioner relied upon a decision reported in 1999 (7) SCC 685 , State of Maharashtra v. Tapas D. Niyogi, in which, it has been held by the Hon’ble Supreme Court that if the circumstances exist creating suspicion of commission of any offence in relation to the bank account, Section 102(1) is attracted empowering the police officer investigating the offences to seize the bank account and issue order prohibiting the account from being operated upon. In view of the aforesaid decision, learned counsel appearing for the petitioner submitted that there should be a direct link between the property in dispute as well as seized property. In the aforesaid judgment, the Hon’ble Apex Court has also held that there are two pre-conditions for applicability of Section 102(1) that it must be "property" and secondly, in respect of the said property, there must have been suspicion of commission of any offence. He also relied upon a decision reported in 1988 CR. In the aforesaid judgment, the Hon’ble Apex Court has also held that there are two pre-conditions for applicability of Section 102(1) that it must be "property" and secondly, in respect of the said property, there must have been suspicion of commission of any offence. He also relied upon a decision reported in 1988 CR. L.J. 241 (Delhi High Court) in which it has been held that for applicability of Section 102 of the Cr PC, the seized property must be case property. In the aforesaid decision, it has also been held that after seizure of any property under Section 102 of the Cr PC, the follow up actions prescribed in the aforesaid section should also be done by the seizing authority. 10. Having relied upon the aforesaid discussions, learned counsel for the petitioner submits that learned Judicial Magistrate committed a grave error in rejecting the prayer of the petitioner. 11. Learned counsel appearing for Opposite Party No. 2 refuted the above-said submissions of learned counsel for the petitioner and submitted that the learned Judicial Magistrate has not passed final order on the petition of the petitioner and kept his opinion reserved till conclusion of the trial. So, the matter should be sent to learned Judicial Magistrate for giving his final opinion on the petition filed on behalf of the petitioner. 12. Certain facts are admitted in this case. It is an admitted position that Opposite Party No. 2 lodged the above-said Kotwali P.S. Case No. 26 of 2009 against six persons and the name of petitioner sprang during course of instigation, when it was detected that the amount withdrawn from the account of, Opposite Party No. 2 had been deposited in the accounts of co-accused persons including co-accused Hiranand Jha and one Babita Jha and again the amounts deposited in the accounts of Hiranand Jha and Babita Jha were withdrawn and deposited in the accounts of petitioner and after completion of the investigation, police submitted charge-sheet against petitioner also though Babita Jha was not sent up for trial. 13. It would appear from the impugned order of learned Court below that Rs 18.00.000/- (eighteen lacs) and Rs.17.2 lacs are said to have been traced out by the police in the account of petitioner as part money of the present case. 14. 13. It would appear from the impugned order of learned Court below that Rs 18.00.000/- (eighteen lacs) and Rs.17.2 lacs are said to have been traced out by the police in the account of petitioner as part money of the present case. 14. I would like to refer Section 102, of the Cr PC which runs as follows : Power of police officer to seize certain property : (1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. (2) Such police officer, if subordinate to the officer in- charge of a police station, shall forthwith report the seizure to that officer. (3) Every police officer acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently, transported to the Court, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as, and when required and to give effect to the further orders of the Court as to the disposal of the same." 15. It is clear from bare perusal of above-said section that to attract Section 102. Cr PC, the property should be stolen, or should be suspected property. Therefore, even if the property is a suspected property, then also, Investigating Officer has power to seize the suspected property. 16. In the present case. it has been detected in course of investigation that part amount of the money of present case was deposited in the accounts of Babita Jha and Heeranand Jha and later on, the aforesaid amount was transferred to the accounts of petitioner. So, there is sufficient material in the case diary to suspect that the part amount of the money of the, present case has been transferred to the accounts of petitioner and. therefore. Investigating Officer has got every power to seize the aforesaid property under Section 102, Cr PC which can only be done by freezing the operation of accounts of petitioner. 17. However. therefore. Investigating Officer has got every power to seize the aforesaid property under Section 102, Cr PC which can only be done by freezing the operation of accounts of petitioner. 17. However. it is not clear from, the record as to whether the Investigating Officer has given any information to the concerned Magistrate regarding the seizure of bank accounts of the petitioner or not and it is also not clear from the record as to whether he has given any notice of seizure to the petitioner or not and, therefore, it is not possible for this Court to make any comments on the above-said facts. Moreover, the learned Magistrate has not passed final order on the petition of the petitioner and kept his opinion reserved till the conclusion of trial and, therefore, in my view, learned counsel appearing for the Opposite Party No. 2 has rightly submitted that the matter should be remitted back to the learned Judicial Magistrate-1st Class with a direction to him to pass afresh order on the petition filed on behalf of the petitioner for release of her bank accounts from the seizure. 18. In view of the aforesaid discussions, the impugned order dated 25-08-2010 passed by learned Judicial Magistrate-1st Class, Patna in Kotwali P.S. Case No. 26 of 2009 corresponding to G.R. No. 379 of 2009 is, hereby, quashed to the extent of disposal of petition filed on behalf of the petitioner only with this observation that the learned Magistrate shall pass order afresh on petition dated 26-03-2010 filed on behalf of the petitioner for release of her money from her seized accounts, keeping in mind the observations given in this order as well as materials available on the record. 19. In the aforesaid manner, this petition stands disposed of at the stage of admission itself. Petition disposed of.