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2014 DIGILAW 2112 (MAD)

G. Radhakrishnan v. Assistant Director, Directorate of Enforcement

2014-07-15

T.S.SIVAGNANAM

body2014
Judgment 1. In these writ petitions, the challenge is to the summons issued by the Directorate of Enforcement, Madurai, calling upon the petitioners to appear before the designated authority on 15.07.2014 at 11.00 a.m. 2. The petitioner in W.P.(MD)No.11525 of 2014, is Mr. G. Radhakrishnan, who is described as a partner of a firm under the name and style of M/s. Chivas Trading Corporation, Trichy, who has been directed to appear in person today (15.07.2014) and produce the following documents: a) his Passport b) Bank Account details along with transcripts of himself and his family members and their companies. c) Ration Card/Voter I.D. Card d) Details of immovable properties held in India by him/family members, name, companies name, viz., M/s. Chivas Trading Corporation, Trichy. 3. The petitioner namely R. Geetha, in W.P(MD)No.11526 of 2014 is Mrs. R. Geetha, partner of the same who has been directed to appear in person/authorised agent and it has not been specifically mentioned whether she has to appear in person or through authorised agent, and has been directed to produce the same documents/records as that of the other writ petitioner. 4. Mr. B. Saravanan, learned Counsel appearing for the petitioners submits that the impugned summons is bad in law for several reasons. It is pointed out that Section 50 of the Prevention of Money-Laundering Act, 2002,(hereinafter referred as the Act) enumerates the power of the authority regarding the summon for production of the documents and to give evidence etc. 5. It is submitted that under Section 50(1) of the Act, the powers are vested with a civil Court under the Code of Civil Procedure, 1973, while trying a suit in respect of the matters like discovery and inspection, enforcing the attendance of any person and compelling production of records and receiving evidence on affidavits, issuing commissions of examination of witnesses and documents and any other matter, which may be prescribed have been conferred on the authority exercising power under Section 50 of the Act. 6. Further, it is submitted that in terms of sub-Section (4) of Section 50 of the Act, every proceedings initiated under sub-Sections (2) and (3) of Section 50 of the Act, shall be deemed to be a judicial proceedings. 6. Further, it is submitted that in terms of sub-Section (4) of Section 50 of the Act, every proceedings initiated under sub-Sections (2) and (3) of Section 50 of the Act, shall be deemed to be a judicial proceedings. By referring to Section 12 of the Act, it is submitted that the said provision deals with the reporting entity who is required to maintain the records mentioned in clauses(a) to (e) under Section 12. The provision reads as follows: 12. Reporting entity to maintain records.- (1) Every reporting entity shall (a) maintain a record of all transactions, including information relating to transactions covered under clause (b) in such manner as to enable it to reconstruct individual transactions; (b) furnish to the Director within such time as may be prescribed, information relating to such transactions, whether attempted or executed, the nature and value of which may be prescribed; (c) verify the identity of its clients in such manner and subject to such conditions, as may be prescribed; (d) identify the beneficial owner, if any, of such of its clients, as may be prescribed; (e) maintain record of documents evidencing identity of its clients and beneficial owners as well as account files and business correspondence relating to its clients". 7. It is submitted by the learned Counsel for the petitioners that the four documents which are sought for by the designated authority in the summons do not fall within any of the records mentioned in Clauses (a) to (e) of Section 12(1) of the Act. Therefore, it is submitted that the summons are illegal. It is further submitted that the summons are bad in law as being bereft of material particulars. 8. Learned Counsel further submits that the criminal proceedings have been initiated against the petitioners for the alleged offences under Sections 464, 465, 468, 471,420 and 120(b) IPC on the file of the Inspector of Police, City Crime Branch, Trichy City in Crime No.07 of 2013. The petitioners fearing arrest, approached this Court seeking for anticipatory bail in Crl.O.P(MD) No.6212 of 2013 dated 10.07.2013. The application for anticipatory bail was resisted by the respondent police as well as the intervenor one Mr. Mahesh and this Court after considering the rival submissions, ordered to release the petitioners on bail in the event of their arrest subject to certain conditions and the operative portion of the order reads as follows: "5. The application for anticipatory bail was resisted by the respondent police as well as the intervenor one Mr. Mahesh and this Court after considering the rival submissions, ordered to release the petitioners on bail in the event of their arrest subject to certain conditions and the operative portion of the order reads as follows: "5. Considering the rival submissions made by both sides and on perusal of the typed set of papers and records, it shows that the petitioners herein have borrowed money from the de-facto complainant for their agricultural purposes to the tune of Rs.2,06,00,000/-. But one third party has stood as a guarantor and the amount has been disbursed in the year 2006, mortgage has been executed on 22.03.2006, confirmation has been made on the same day and the amount due as on the date of filing of the petition is Rs.3,04,90,377/-. During the pendency of the suit, when the bank went to attach and sell the property by invoking the provision of SARFAESI Act, it came to light that there is no such property available and hence a case has been registered. According to the learned Senior Counsel for the petitioners, before registering a case, the petitioners have received notices and appeared before the Court, co-operating with the investigation and thereafter only, the case has been registered and it is their case that the bank, after verifying all the records only, has sanctioned the loan amount. Further more, the Bank filed a suit for recovery of money due, not only against the petitioners, but also the guarantor and others. In such circumstances, it is a case of recovery of money due on a mortgage, I am inclined to grant anticipatory bail to the petitioners, with certain conditions. 6. Accordingly, the petitioners are ordered to be released on bail in the event of their arrest or on their appearance before the learned Judicial Magistrate No.IV, Tirhcy, and on each of them executing a bond for a sum of Rs.10,000/-(Rupees Ten Thousand only)with two sureties each for a like sum to the satisfaction of the learned Magistrate concerned and on further condition that the petitioners shall report before the Court concerned daily at 10.30 a.m. until further orders. The petitioners shall comply with the condition stipulated under Section 438 Cr. P.C scrupulously. 7. The petitioners shall comply with the condition stipulated under Section 438 Cr. P.C scrupulously. 7. The petitioners shall appear before the concerned Magistrate within a period of 15 days from the date on which the order copy made ready, failing which, the petition for anticipatory bail stands dismissed." 9. It is submitted by the petitioners that the impugned summons have now been served by the designated authorities under the Prevention of Money-Laundering Act, 2002 and Section 19 of the Act empowers the authority to arrest the persons so summoned and such power conferred under the Statute would be a draconian power and the parallel proceedings are initiated against the petitioners both before the criminal forum as well as under the provisions of the Money-Laundering Act, 2002. Therefore, learned Counsel for the petitioners submitted that the impugned summons deserves to be quashed. 10. Mr. K.K. Senthilvelan, learned Assistant Solicitor General of India, accepts notice for the respondent and submitted that the details mentioned in the schedule to the summon are essentially required for conducting investigation under the provision of Money-Laundering Act, 2002, and the documents sought for are well within the scope and ambit of Section 12 of the Act. The further contention is that the matter is under investigation and a summon may not be quashed at the very threshold as it would ramper the investigation and the petitioners are bound to co-operate with the smooth conduct of the investigation. 11. After hearing the learned Counsels and perusing the materials placed on record, it is seen that out of four documents sought for by the petitioners, the documents (a) & (c) are the Passport, Ration Card/Voter I.D Card. These are essentially required for the identification of the petitioners and ensure that the petitioners co-operate with the investigation which is to be carried under the provisions of the Act. Merely because the criminal case has been registered on the file of the Inspector of Police, City Crime Branch Police, Trichy, the same cannot prevent the respondent/designated authority in exercising the powers under the provisions of the Act. 12. It is seen that the criminal case was registered pursuant to a complaint giving by one Mr. Merely because the criminal case has been registered on the file of the Inspector of Police, City Crime Branch Police, Trichy, the same cannot prevent the respondent/designated authority in exercising the powers under the provisions of the Act. 12. It is seen that the criminal case was registered pursuant to a complaint giving by one Mr. Mahesh who was the intervenor in the anticipatory bail application filed by the petitioners and the said proceedings are independent proceedings wherein the offences alleged are under the provisions of I.P.C which are said to have been committed by the petitioners. 13. Therefore, the petitioners have to defend themselves in that proceedings independently. So far, the documents (b) and (c) mentioned in the summons they are pertaining to bank details with the transcripts of the petitioners and the family members and their Companies and other relate to the immovable properties held by the petitioners in India and by their family members, Companies namely viz., M/s. Chivas Trading Corporation. 14. Thus all the documents called for clearly fall within the ambit of sub-sections (a) to (e) of Section 12(1) of the Act. In such circumstances the summons issued to the petitioners cannot be quashed at the very threshold. In any event, the summons is for production of the documents for the purpose of conducting an investigation under the Act. The petitioners apprehend harassment in the hands of the respondent/designated authority when they are appear for enquiry pursuant to the summons. 15. It is to be noted that the designated authority has to proceed in accordance with law and there shall not be any harassment on the petitioners, merely because they are responding to the summons issued. Needless to state that the petitioners shall co-operate in the investigation for which they have been summoned by the designated authority. Since the petitioners have moved this Court, they have not appeared before the designated authority today, i.e., on 15.07.2014. 16. In the light of the above, while rejecting the prayer sought for by the petitioners, there will be a direction to the petitioners to appear before the respondent on 18.07.2014 and produce the documents sought for and the respondent/designated authority shall investigate the matter strictly in accordance with law under the provisions of the Act, without giving any room for any complaint. 17. With the above direction, these writ petitions are dismissed. 17. With the above direction, these writ petitions are dismissed. Consequently, the connected Miscellaneous petitions are also dismissed. No costs.