Mahendra Ramanlal Gandhi vs State Of Gujarat & Ors

Ilesh J. Vora, J

By invoking inherent powers of this Court, the applicant namely Mahendra Gandhi has preferred this application questioning the legality and correctness of the order dated 07.12.2021, passed in Criminal Revision Application No.123 of 2021, passed by Additional Sessions Judge, City Sessions Court, Court No.19, Ahmedabad City, whereby the sessions court refused to grant any relief and remanded the matter to the trial court.

Pursuant to the offence registered with Cyber Crime Police Station, Ahmedabad City being C.R. No.A-11191067210077 of 2021 for the offence punishable under Sections 406, 420, 120B of the Indian Penal Code and Sections 66(c) and 66(d) of the Information Technology Act, the investigating agency directed the bank to keep the disputed amount as a lien and prevent the bank to do further transaction with regard to amount lying in the bank. The applicant is the victim of cyber fraud. He had transferred Rs.20 lacs online in the bank account no.111405005386, maintained with ICICI Bank in the name of Golden Mark Technologies Private Limited and also transferred Rs.15 lacs in the bank account no.649305052463 maintained with ICICI Bank, in the name of Stylyn Tech Private Limited. The investigating agency, as a part of investigation, also find out another account maintained with ICICI Bank No.15340100136 used and maintained by the fraudster. The applicant after knowing the direction issued by the investigating agency, applied before the court concerned to release and/or disburse the said amount which he had deposited at different occasions. The learned trial court refused to grant any relief and accordingly, rejected the application observing that, the amount whatever lying in the account has not been seized by the police and therefore, Section 451 of Cr.P.C. will not be applicable in the facts of present case. Being aggrieved with the said order dated 06.07.2021, the revision application before sessions court was filed. After hearing the parties, the revisional court, remanded the matter to the trial court and directed the trial court to decide the matter afresh after hearing the concerned bank.

Aggrieved with the order of sessions court, the applicant is before this Court.

This Court has heard learned counsel Mr. J.F. Mehta, Mr. Jainish P. Shah and Mr. Jay Mehta, learned Additional Public Prosecutor for the respective parties.

Having regard to the facts and circumstances of present case and on perusal of material placed on record, it reveals that, the applicant came into contact with one Ms. Alina online, and after discussion with her, the complainant-applicant agreed to invest in the wine trading. Based on the promise given by Ms. Alina, he decided to invest in the company. The link for registration was sent by the accused. The particulars of bank accounts maintained with ICICI Bank were shared by the accused. Accordingly, the complainant transferred Rs.35 lacs in two different accounts as referred in para-2 of this order. As per commercial deal, the complainant was entitled to withdraw Rs.10 lacs as a part of profit and when he sent the withdrawal form, the accused on technical ground did not permit him to withdraw the said amount and sent the message to him that he will withdraw only up to Rs.1 lac. When the complainant again sent the withdrawal form to withdraw the amount of Rs.97,000/- , the same was credited and thereafter, for the remaining amount of his profit as well as investment, was being not proceeded and since then, there was no response. In such circumstances, the complaint came to be lodged with Cyber Crime Police Station.

In the aforesaid set of circumstances, it appears that the entire transaction was held online, the complainant was not aware about the whereabouts and further identity of Ms. Alina. The investigating agency got the bank statement from ICICI Bank, but, the accused were not traceable and till date, the agency could not detect the offence as well as the author of the crime. The person whose name has been mentioned in the bank accounts are also not traceable.

In the aforesaid background facst, learned counsel Mr. Mehta has submitted that the amount whatever lying in 3 bank accounts may be released in favour of the applicant subject to appropriate condition including the production of solvency certificate for the security purpose.

Mr. Jainish Shah, learned counsel appearing for ICICI Bank, upon instructions, has submitted that, the bank will honour the amount whatever actual amount lying in the bank and that too subject to condition whatever imposed by the court.

The applicant herein has invoked inherent powers of this Court under Section 482 of Cr.P.C. The powers of the High Court is with purpose and object of advancement of justice. The High Court has inherent powers to act as Ex debito justitiae to do real and substantial justice for the administration of which alone it exists or to prevent the abuse of process of court and thus, the inherent powers can be exercised to give effect to an order under the Code; to prevent the abuse of process of court to otherwise secure the ends of justice.

In light of the settled position of law and considering the peculiar facts and circumstances of present case, this court is of view that the revisional court could not have passed the order to remand the matter. It is no doubt true that, the amount lying in the bank accounts has not been seized, however, the direction by the investigating agency would suffice to exercise the discretion under Section 451 of Cr.P.C. The revisional court could have imposed the condition to secure the right of the parties so as to minimize the litigation. The order of remand would not serve any further purpose and the proceedings for getting the amount initiated would gets further delayed. This Court finds substance in the arguments advanced by learned counsel Mr. Mehta that keeping the amount idle in the bank account would not serve any purpose and therefore, for the ends of justice, imposing appropriate conditions, the case is made out for issuance of necessary directions as prayed.

For the reasons recorded, case is made out to exercise inherent powers of this Court. The orders of courts below for the reasons recorded, are not sustainable in law and accordingly, set aside. The application for releasing the amount filed before the trial court is allowed. The two bank accounts as referred in para-2 of this order are maintained with ICICI Bank – respondent no.3. The complainant has claimed Rs.34,03,000/-. As per the case papers, in the account of Golden Mark Technologies, Rs.20 lacs being seized and/or lien, whereas in the other bank account namely Stylyn Tech Private Limited, Rs.9,92,790/- were being seized and/or lien. The third account though referred by the police authority, but this court do not deem it fit to consider at this stage. In such circumstance, the respondent no.3 is directed to transfer the said amounts lying in two accounts as referred above to the bank of the complainant-applicant herein subject to following conditions:

(i) The complainant shall execute a personal bond in the sum of Rs.35 lacs with a solvent surety to the satisfaction of the bank authority;

(ii) Shall deposit the said amount as and when directed by the court or the bank and file undertaking to this effect before this Court as well as the bank authority;

This petition is disposed of accordingly. Direct service is permitted.