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2022 DIGILAW 490 (TS)

Rudraraju Srinivas Shah v. Union of India

2022-07-28

K.LAKSHMAN

body2022
ORDER : 1. This Writ Petition is filed to declare the action of respondents in depriving the privilege of the petitioner to travel abroad, under the guise of pendency of FIR No. RC03520200A0002 dated 16.04.2020 registered by 4th respondent, as illegal and consequently direct the respondents not to deprive him from the said privilege. 2. Heard Sri K. Raghavacharyulu, learned counsel for the petitioner and Sri B. Harinath, learned counsel appearing for 5th respondent-Bank and Sri N. Nagendran, learned Spl. Public Prosecutor for CBI appearing for 4th respondent and Sri Namavarapu Rajeshwar Rao, learned Asst. Solicitor General of India for respondent Nos. 1 to 3. Perused the record. FACTS OF THE CASE: 3. The petitioner herein is a Non-Executive Director of M/s Kyori Oremin Limited (for short, ‘the company’) which was importing and trading in coal. The said company has availed certain credit facilities to the tune of Rs.28 Crores from 5th respondent-Bank. The account of the said company is classified as Non Performing Asset (NPA). 5th respondent -Bank has filed a suit before the DRT, Hyderabad. 5th respondent-Bank has also lodged a complaint with 4th respondent-CBI alleging that the loan account of the said company is a fraudulent one. The above said company had submitted One Time Settlement (OTS) proposal with 5th respondent-Bank and the same was also approved on 31.12.2019. Subsequently a revised OTS proposal dated 14.05.2020 was approved. The OTS amount was paid on 14.08.2020, the 5th respondent has issued even No Dues Certificate and released the personal guarantees of the petitioner. All original documents were returned. But 5th respondent has issued LOC against the petitioner herein. The petitioner herein is now intending to travel United States of America and other countries for his business purpose from 29.07.2022 to 31.08.2022 and he also undertakes to return to India. Earlier when the investigating agency, while investigating a case in R.C. No. 11 of 2018, dated 03.07.2018, in respect of loan from Central Bank of India, did not permit the petitioner herein to travel abroad, he approached this Court by way of filing a writ petition vide W.P. No. 9604 of 2019 and this Court passed interim order. Pursuant to the said orders, the petitioner travelled abroad and returned to India. 4. Pursuant to the said orders, the petitioner travelled abroad and returned to India. 4. Learned counsel for the petitioner would submit that while issuing LOC, 5th respondent has not followed the guidelines issued by the Ministry of Home Affairs, from time to time including the latest guidelines issued vide Office Memorandum dated 22.02.2021 and it is abuse of process of law. The right of the petitioner to travel abroad cannot be deprived and it amounts to violation of Article 21 of the Constitution of India. He has also placed reliance on several judgments. The petitioner herein is now intending to travel United States of America and other countries for his business purpose from 29.07.2022 to 31.08.2022 and he also undertakes to return to India. He has also purchased Air Tickets. He is ready to give undertaking to return to India. Due to pendency of LOC, the petitioner herein is not in a position to travel abroad for the said purpose. He has also placed reliance on several judgments. With the said submissions, the petitioner sought to declare the LOC issued against him as illegal. 5. Whereas, Sri N. Nagendran, learned Spl. Public Prosecutor for CBI appearing for 4th respondent referring to the counter, would submit that 5th respondent-Bank has followed the guidelines issued by the Ministry of Home Affairs, Union of India, including the guidelines dated 22.02.2021. There is already an FIR pending against the petitioner herein for defrauding the bank and causing wrongful loss. The petitioner has availed cash credit facility of Rs.28 Crores from 5th respondent and the same was later declared as NPA. It was found in the Forensic audit that the company has not utilized the borrowed funds for the intended purpose and diverted the funds for other business/personal purpose. Investigation was completed in R.C. 02(A)/2020 of CBI/ACB/Hyderabad and charge sheet was filed against the petitioner herein including three others before the XXI Addl. Chief Metropolitan Magistrate and Special Court for CBI Cases, Hyderabad vide SR No. 1783 of 2021 and the same was taken objection and it is yet to be resubmitted. There is every likelihood of the petitioner to flee away to escape trial if permitted. The petitioner has to approach the officer who ordered issuance of LOC and extend LOC wrongly. Chief Metropolitan Magistrate and Special Court for CBI Cases, Hyderabad vide SR No. 1783 of 2021 and the same was taken objection and it is yet to be resubmitted. There is every likelihood of the petitioner to flee away to escape trial if permitted. The petitioner has to approach the officer who ordered issuance of LOC and extend LOC wrongly. Instead of doing so, he has filed the present writ petition and therefore it is within the bank’s right to make a request to 2nd respondent to issue LOC against the petitioner herein. There is no irregularity in it. 6. In view of the above said facts, this Court directed the learned Special Public Prosecutor for CBI to submit information with regard to violation of conditions imposed by this Court in order dated 13.04.2019 in I.A. No. 01 of 2019 in W.P. No. 9604 of 2019. On instructions, he has submitted that the petitioner has cooperated with the Investigating Officer, and the Investigating Officer on completion of investigation laid charge sheet against the petitioner herein. 7. The petitioner is intending to travel United States of America and other countries for his business purpose from 29.07.2022 to 31.08.2022 and he also undertakes to return to India. In proof of the same, the petitioner has filed certain documents. There is no dispute that the petitioner herein has filed the above writ petition and there is interim order passed and the said writ petition is pending and the said interim order is subsisting as on today. Earlier he travelled abroad pursuance to the interim orders passed by this Court and returned to India. He has strictly complied with the conditions imposed by this Court. There is no complaint against the petitioner that he has violated the conditions imposed by this Court. His family members are residents of Hyderabad and they have been living in Hyderabad since 14 years. He is ready to give undertaking to return to India by 31.08.2022 and will inform the respondent Nos. 1 to 5 about his travel progress and address there. In proof of the same he has also filed air tickets. 8. His family members are residents of Hyderabad and they have been living in Hyderabad since 14 years. He is ready to give undertaking to return to India by 31.08.2022 and will inform the respondent Nos. 1 to 5 about his travel progress and address there. In proof of the same he has also filed air tickets. 8. In Menaka Gandhi vs. Union of India, 1978 (1) SCC 248 it was held by the Apex Court that no person can be deprived of his right to go abroad unless there is a law enabling the State to do so and such law contains fair, reasonable and just procedure. Paragraph No. 5 of the said judgment is relevant and the same is extracted below: Thus, no person can be deprived of his right to, go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure. It was for this reason, in order to comply with the requirement of Article 21, that Parliament enacted the Passports Act, 1967 for regulating the tight to go abroad. It is clear from the provisions of the Passports, Act, 1967 that is lays down the circumstances under which a passport may be issued or refused or cancelled or impounded and also prescribes a procedure for doing so, but the question is whether that is sufficient compliance with Article 21. Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements? Obviously, procedure cannot be arbitrary, unfair or unreasonable. This indeed was conceded by the learned Attorney General who with his usual candour frankly stated that it was not possible for him to contend that any procedure howsoever arbitrary, oppressive or unjust may be prescribed by the law. Therefore, such a right to travel abroad cannot be deprived except by just, fair and reasonable procedure. 9. Referring to the said principle and also the principles laid down by the Apex Court in several other judgments, considering the guidelines issued by the Union of India from time to time, the Division Bench of High Court of Punjab and Haryana at Chandigarh in Noor Paul vs. Union of India, (2022) SCC Online P&H 1176 held that a right to travel abroad cannot be deprived except by just, fair and reasonable procedure. Without communicating the LOC to the subject of LOC, the authorities cannot seek to enforce it as it would not have any effect in law. 10. On examination of the facts therein, it had declared that issuance of LOC against the petitioner therein, a Guarantor to the loans, as illegal and set aside the LOC issued against the petitioner therein. 11. It is also relevant to note that the Bank of India, respondent therein, the Originator of the LOC had preferred Spl. Leave to Appeal (c) Nos. 7733 of 2022 wherein the Apex Court, vide order dated 05.05.2022 declined to stay the operation of said judgment except for the direction in the operative part of the order that the respondent Nos.1, 3 and 4 therein shall serve a copy of the LOC and also reasons for issuing it to the persons against whom it is issued as soon as possible after it is issued, and also provide a post-decisional opportunity to him and those requirements shall be read into the OMs issued by the respondents concerning the issuance of LOCs. The Apex Court also granted stay of the direction for payment of costs. The Apex Court however directed the Originator and custodian to ensure that the petitioner therein shall not be prevented from travelling abroad to pursue her studies by reason of the LOC. However, the Apex Court has also directed the respondent No. 1/Writ Petitioner therein to give an undertaking to the Court not to dispose of her assets if any. She shall also keep the Bureau of Immigration informed of the dates of her departure from and entry into India. 12. As discussed supra, the Investigating Officer, CBI has filed charge sheet against the petitioner and the same was returned with some objections. On re-submission, it was taken on file, on receipt of summons, the petitioner has to appear before the said Court and cooperate. 13. It is also relevant to note that in super-session of its earlier Office Memorandum/guidelines, the Government of India, had issued guidelines vide Office Memorandum, dated 22.02.2021 with regard to issuance of LOC. In the said guidelines, the details of the Officers who have to issue LOC and other procedures were explained. 13. It is also relevant to note that in super-session of its earlier Office Memorandum/guidelines, the Government of India, had issued guidelines vide Office Memorandum, dated 22.02.2021 with regard to issuance of LOC. In the said guidelines, the details of the Officers who have to issue LOC and other procedures were explained. As per the said guidelines, the Chairman/Managing Directors/Chief Executive of all Public Sector Banks can request for opening an LOC to the Deputy Director, Bureau of Immigration (BOI) custodian of the LOC for issuance of the LOC. 14. As per clause-6(J) of the Office Memorandum, dated 22.02.2021, the LOC opened shall remain in force until and unless a deletion request is received by the BOI from the Originator itself. No LOC shall be deleted automatically. The Originating Agency must keep reviewing the LOCs opened at its behest on quarterly and annual basis and has to submit the proposals to delete the LOC, if any, immediately after such a review. The BOI should contact the LOC Originators through normal channels as well as through the online portal. In all cases where the person against whom LOC has been opened is no longer wanted by the Originating Agency or by Competent Court, the LOC deletion request must be conveyed to BOI immediately so that liberty of the individual is not jeopardized. A guideline similar to that of the above referred guideline is also there, in OM, dated 05.12.2017. Therefore, the 1st respondent, Originating Agency, shall review the said LOC. 15. In view of the above said guidelines and also law laid down, coming to the case on hand as discussed supra, the petitioner herein is Non-Executive Director of the Borrower Company which cleared the loan by availing OTS. No Dues Certificate was also issued. However, proceedings in CBI Court are pending. CBI has to resubmit the charge sheet and on receipt of summons, the petitioner has to appear. 16. In view of the above said discussion, this Court is not inclined to declare the LOC issued against the petitioner herein as illegal. However, as per the above said guidelines dated 22.02.2021, the Originating Agency has to review the said LOC on quarterly and annual basis but the 5th respondent-Bank did not do the said exercise. Counter filed by CBI is silent with regard to the same. However, as per the above said guidelines dated 22.02.2021, the Originating Agency has to review the said LOC on quarterly and annual basis but the 5th respondent-Bank did not do the said exercise. Counter filed by CBI is silent with regard to the same. It is not in dispute that the petitioner herein is permanent resident of Hyderabad and his family members are residing at Hyderabad only. Earlier he has travelled abroad by obtaining orders from this Court. There is no allegation against him that he has violated the condition imposed by this Court. Now he is only seeking permission to travel abroad for a period from 29.07.2022 to 31.08.2022 for business purpose. Therefore, this Court is inclined to suspend the LOC issued against the petitioner herein for a period from 29.07.2022 to 31.08.2022. 17. Considering the said principles and also in view of the above said discussion, this Writ Petition is disposed of with the following directions: (i) LOC issued by 5th respondent against the petitioner is suspended for a period from 29.07.2022 to 31.08.2022. (ii) 5th respondent shall inform/communicate this order to 2nd respondent in terms of Office Memorandum, dated 22.02.2021. (iii) The petitioner shall inform to the respondent Nos.2 to 5 the address and other particulars with regard to his stay in United States of America (USA). (iv) The petitioner shall inform his arrival/departure to the respondent Nos.2 to 5 in terms of the said Office Memorandum, dated 22.02.2021. (v) The petitioner shall cooperate with the Investigating Agency including the Central Bureau of Investigation (CBI) by furnishing information/documents, if any, as sought by them. (vi) 5th respondent-Originating Agency shall review the LOC opened against the petitioner herein on quarterly and annual basis, submit proposals to delete LOC, if any, immediately after such a review in terms of the said Office Memorandum, dated 22.02.2021. (vii) The respondent Nos. 2 to 5 are directed to comply with the guidelines issued by the Government of India vide Office Memorandum dated 22.02.2021. (viii) Liberty is granted to the respondents to take action against the petitioner herein for violation of any of the aforesaid conditions. 18. Miscellaneous Petitions, if any, pending, shall also stand closed.