WP.No.
21344 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.09.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.No.21344 of 2022 and
WMP.Nos.20435 & 20436 of 2022
Sahil Raj ... Petitioner
Vs.
1.The State of Tamil Nadu,
Through: Inspector of Police,
Cyber Crime P.S. Villupuram,
Tamilnadu 605 602
2.The Superintendent of Police,
District Police Office, Collector Office Road,
Moovendar Nagar, Villupuram,
Tamilnadu 605 602
3.IDFC First Bank,
Branch: Karol Bagh,
2109, Ground Floor, Desbandhu Gupta Road,
Karol Bagh, New Delhi 110 005
Through: Branch Manager ... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India, praying to issue a writ of certiorari to quash the impugned notice
under Section 41A of Cr.P.C. dated 08.06.2022 in FIR No.33 of 2021 P.S.
Villupuram which was illegally issued by the respondent No.1 against the
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WP.No.21344 of 2022
petitioner without jurisdiction and without compliance of the conditions
precedents imposed under Section 41A of Cr.P.C. and consequently for
quashing the entire proceedings emanating from notice under Section 41A
of Cr.P.C. dated 08.06.2022 in FIR No.33 of 2021 P.S. Villupuram issued
by respondent No.1 against the petitioner; to quash notice dated
07.04.2022 under Section 91 of Cr.P.C. in FIR No.33 of 2021
P.S.Villupuram, issued by the respondent No.1 to IDFC First Bank, New
Delhi for freezing the bank accounts of the petitioner, which are patently
illegally and cannot be termed under Section 102 of Cr.P.C. which is also
not even applicable in the present case as per directions of this Court in the
case titled as 'R.Chandrasekar Vs. Inspector of Police' in Crl.OP.No.24398
of 2002.
For Petitioner : Mr.H.K.Chaturvedi
For Respondents
For R1 & 2 : Mr.E.Raj Thilak
Additional Public Prosecutor
ORDER
The writ petition has been filed to defreeze the bank account
of the petitioner which has been freezed in pursuant to the registration of
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WP.No.21344 of 2022
FIR in crime No.33 of 2021 on the file of the first respondent.
2. The case of the prosecution is that the cheating committed by
anonymous person by using whats app No.9003174336 who offered a part
time job to the complainant in flipkart and for the purpose of getting job,
complainant had followed the instructions of the anonymous person who
directed the complainant to open a link i.e. www.U12.in and to open an
account. He had followed the instructions of the anonymous person and
invested a sum of Rs.5,58,749/- in 26 instalments via Oceanpay link and
the amount was sent to the Account No.110009711723 IFSC: CNRB
0019454 (while putting this information in various bank applications the
auto-fetch name of the account holder is displayed as Ankit Bansal).
Further alleged that the payments made through his mobile phone by using
phonepe, google pay account and Punjab National Bank net banking and
the anonymous person further told him to deposit a sum of Rs.60,000/- in
order to complete the task and only after depositing Rs.60,000/- he will get
full amount. However, he could not make the said payment.
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WP.No.21344 of 2022
3. The learned counsel for the petitioner submitted that the
petitioner is the sole proprietor of his proprietorship business 'AD Street'
with GSTIN 07BUHPR7097E1Z4 which engaged in the work of printing
business and also engaged in the work trading i.e. purchase and sale of
virtual digital assets i.e. crypto currency on different exchanges. While
being so, he had received an order of purchase of USDT (virtual digital
asset in the form of crypto currency) from a user named Raj Ghosh on
21.10.2021. He had made payment of Rs.89,000/- for the said purchase
which is linked with his HDFC Bank current account by phonepe
application. He had released the said crypto currency within 15 days to the
said Raj Ghosh. While being so, the first respondent issued notice under
Section 91 of Cr.P.C. to the Branch Manager of Punjab National Bank,
Inderpuri, New Delhi and directed to freeze the petitioner's account. The
first respondent has no jurisdiction under Section 91 of Cr.P.C. to freeze
the petitioner's account. It cannot be termed under Section 102 of Cr.P.C.
Admittedly, the petitioner is not an accused in crime No.33 of 2021. The
first respondent also freezed the petitioner's following accounts”
(a) Bank account No.3063000100396702 IFSC: PUNB0306300
Punjab National Bank
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WP.No.21344 of 2022
(b) Savings Bank Account No.10074558873 IFSC:
IDFB0020109 (IDFC First Bank)
(c ) Banking through phonepe mobile application with phone
number 8586873572 which is attached/linked with my
HDFC bank account.
Therefore, the petitioner could not able to operate his accounts.
3.1 He further submitted that on 20.06.2022, the petitioner was
served with notice under Section 41-A of Cr.P.C. from the file of the first
respondent, thereby called upon the petitioner to attend enquiry on
20.06.2022 before the first respondent. However the said notice was
issued only on 20.06.2022. It requires atleast minimum 14 days to appear
before the first respondent with complete documents and records. It was
issued without compliance with the conditions prescribed under Section
41-A of Cr.P.C.
4. The learned Additional Public Prosecutor appearing for the
respondents 1 & 2 submitted that in pursuant to the registration of FIR, the
accounts of the petitioner were freezed in crime No.33 of 2021. Now, the
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WP.No.21344 of 2022
investigation is still pending. Further, even according to the petitioner, a
sum of Rs.89,000/- was received from one, Raj Ghosh for purchase of
virtual digital assets in the form of crypto currency. Therefore, there is
reason to believe that the petitioner also involved in similar kind of
offence. Therefore, the first respondent rightly requested the petitioner's
banker to freeze the account. He further submitted that the petitioner was
issued notice under Section 41-A of Cr.P.C. and even then, he failed to
appear before the first respondent for enquiry.
5. Heard, Mr.H.K.Chaturvedi, the learned counsel for the
petitioner and Mr.E.Raj Thilak, the learned Additional Public Prosecutor
appearing for respondents 1 & 2.
6. It is also seen that admittedly the petitioner is not an accused
in crime No.33 of 2021 on the file of the first respondent. In pursuant to
the registration of FIR, the first respondent issued notice under Section 91
of Cr.P.C. It revealed that during investigation found that the victim money
was transferred to various bank accounts. In one of the accounts used by
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WP.No.21344 of 2022
fraudster, the cheated money was transferred to the petitioner's account.
Therefore, they requested the third respondent to total freeze the bank
account which is linked with suspect bank account. It is relevant to extract
provision under Section 91 of Cr.P.C.
91. Summons to produce document or other thing.
(1) Whenever any Court or any officer in charge of
a police station considers that the production of any
document or other thing is necessary or desirable for the
purposes of any investigation, inquiry, trial or other
proceeding under this Code by or before such Court or
officer, such Court may issue a summons, or such officer
a written order, to the person in whose possession or
power such document or thing is believed to be, requiring
him to attend and produce it, or to produce it, at the time
and place stated in the summons or order.
(2) Any person required under this section merely
to produce a document or other thing shall be deemed to
have complied with the requisition if he causes such
document or thing to be produced instead of attending
personally to produce the same.
(3) Nothing in this section shall be deemed-
(a) to affect sections 123 and 124 of the Indian
Evidence Act, 1872 (1 of 1872 ), or the Bankers' Books
Evidence Act, 1891 (13 of 1891 ) or
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WP.No.21344 of 2022
(b) to apply to a letter, postcard, telegram or other
document or any parcel or thing in the custody of the
postal or telegraph authority.
7. Thus, it is clear that the first respondent has no jurisdiction. In
the summons issued under Section 91 of Cr.P.C., the investigation officer
summons the person to produce the document or other things. On the
summons issued under Section 91 of Cr.P.C., account cannot be freezed.
That apart, the first respondent failed to comply with the procedure as
contemplated under Section 102(3) of Cr.P.C. Admittedly the first
respondent failed to inform the freezing of the petitioner's account to the
concerned jurisdictional Magistrate even till now. However, the petitioner
himself admitted that he placed order of purchase of USDT (virtual digital
asset in the form of crypto currency) from a user named Raj Ghosh on
21.10.2021. He also had made a payment of Rs.89,000/- to his HDFC
Bank current account.
8. In view of the above, the petitioner is directed to deposit a
sum of Rs.89,000/- in the form of fixed deposit in favour of crime No.33
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of 2021 on the file of the first respondent and the third respondent is
directed to permit the petitioner to operate his Account No.10074558873
IFSC: IDFB 0020109, Karol Bagh Branch, IDFC First Bank. Insofar as the
notice under Section 41-A of Cr.P.C., now the date of enquiry has expired.
However, the first respondent is directed to issue fresh notice after
compliance of the procedure laid down under Section 41-A of Cr.P.C. for
enquiry.
9. With the above directions, this writ petition is disposed of.
Consequently, connected miscellaneous petitions are closed. There shall
be no order as to costs.
14.09.2022
Speaking order
Index : Yes
Internet : Yes
lok
G.K.ILANTHIRAIYAN, J.
lok
To
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WP.No.21344 of 2022
1.Inspector of Police,
Cyber Crime P.S. Villupuram,
Tamilnadu 605 602
2.The Superintendent of Police,
District Police Office, Collector Office Road,
Moovendar Nagar, Villupuram,
Tamilnadu 605 602
3.Branch Manager,
IDFC First Bank,
Branch: Karol Bagh,
2109, Ground Floor, Desbandhu Gupta Road,
Karol Bagh, New Delhi 110 005
4.The Public Prosecutor,
High Court of Madras
WP.No.21344 of 2022
14.09.2022
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