Sekar Garments v. State of Kerala, Inspector of Police, Cyber Crime Police Station, Ernakulam Rural & HDFC Bank Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 14[TH] DAY OF AUGUST 2023 / 23RD SRAVANA, 1945** **WP(CRL.) NO. 732 OF 2023** **FIR 30/2023 OF CHIEF JUDL.MAGISTRATE, ERNAKULAM** ## **PETITIONER :** **SEKAR GARMENTS (GSTIN 33FMJPB2357F1ZC) OLD NO.28, (NEW NO.14), GENERAL MUTHIAH STREET, SOWCARPET, ARIYALUR, TAMIL NADU STATE, PIN- 600 079, REPRESENTED BY ITS PROPRIETOR MR. B. GNANASEKAR, AGED 35 YEARS, NO.46, MILK DIPPO, BASIN BRIDGE ROAD, WASHERMENPET, CHENNAI, PIN – 600 079** **BY ADVS. SHIBIN K.F. SEBY JOSEPH** ## **RESPONDENTS :** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT,**| ||**GOVERNMENT OF KERALA, ROOM NO. 376, MAIN BLOCK,**| ||**THE SECRETARIATE, THIRUVANANTHAPURAM,**| ||**KERALA STATE, PIN – 695 001**| |**2**|**THE INSPECTOR OF POLICE,**| ||**THE CYBER CRIME POLICE STATION, ERNAKULAM RURAL,**| ||**SUB-JAIL ROAD, NEAR ALUVA POLICE STATION,**| ||**ALUVA, ERNAKULAM DISTRICT, KERALA STATE,**| ||**PIN – 683 101**| |**3**|**THE HDFC BANK LTD.,**| ||**RAMON HOUSE, 169, BACKBAY RECLAMATION,**| ||**H T PAREKH MARG, CHURCHGATE, MUMBAI,**| ||**MAHARASHTRA. REPRESENTED BY ITS AUTHORISED OFFICER,**| ||**PIN – 400 020**| 2 **WP(CRL.) NO. 732 OF 2023** **4 MR. DANIEL PAUL, AGED 25 YEARS, SANDEEPAM HOUSE, HOUSE NO. 69, CONVENT ROAD 2, THOTTAKKATTUKARA, ALUVA VILLAGE, ERNAKULAM DISTRICT, KERALA STATE, PIN – 683 108** **BY SRI.NOUSHAD K.A., PUBLIC PROSECUTOR** **THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 14.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(CRL.) NO. 732 OF 2023** 3 ## **BECHU KURIAN THOMAS, J.** =-=-=-=-=-=-=-=-=-=-=-=-=-= ## **W.P.(Crl.) 732 of 2023** =-=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 14[th] day of August, 2023** ## **JUDGMENT** ## Petitioner seeks for the following reliefs :- A. To issue the Writ of Mandamus, any other appropriate Writ and/ or Order declaring that the freezing/ blocking of Bank Account No.50200068386033 of the petitioner firm maintained with the 3[rd] respondent's Broadway Parrys Corner Branch, No.154 Prakasam Salai, Broadway, Chennai, Tamil Nadu State by the 2[nd] respondent is illegal and arbitrary and B. To issue any appropriate Writ, Order and/ or Direction directing the 2[nd] and 3[rd] respondent(s) to defreeze/ unblock the Bank Account No.50200068386033 of the petitioner firm maintained with the 3[rd] respondent's Broadway Parrys Corner Branch, No.154 Prakasam Salai, Broadway, Chennai, Tamil Nadu State within a time to be fixed by this Court. 2. Petitioner is a proprietary concern allegedly conducting business in buying and selling of garments on wholesale and retail basis. It maintains a bank account with the HDFC Bank at Broadway Parrys Corner, Chennai bearing Account No.50200068386033. Recently petitioner was informed from the Bank that its account mentioned above, has been frozen under the directions of the 2[nd] respondent. Due to the said freezing of its bank account, the entire business has come to a grinding halt. **WP(CRL.) NO. 732 OF 2023** 4 3. Petitioner further alleged that on enquiry it was understood that an FIR was registered by the Cyber Crime Police Station, Ernakulam as Crime No.30 of 2023 at the instance of the 4[th] respondent for the offence of cheating the complainant alleged that an unknown accused impersonated and promised to repay large amount of money, if minor amounts are credited into certain accounts. Believing those directions, amounts were credited into various accounts. Two of the accounts were that of the petitioner's into which on 04.01.2023 and on 05.01.2023, amounts were credited and thus the defacto complainant was cheated. 4. Sri.Shibin K.F., the learned counsel for the petitioner submitted that for a small quantum of money that came into petitioner's account, the 2[nd] respondent has frozen the entire bank account of the petitioner wherein several transactions are taking place on a day to day basis in relation to the petitioner's business. It was also pointed out that petitioner has a licence to import and export garments and the said business has also come to a grinding halt due to the freezing order. The learned counsel further submitted that even though petitioner has no involvement in the alleged crime, he had still offered to the 2[nd] respondent to keep aside the amount which was allegedly the subject matter of the crime either in a separate account or into any account of the choice of the Investigating Officer. However he did not heed to such request and has continued to keep the accounts of the petitioner frozen, compelling the petitioner to approach this Court. **WP(CRL.) NO. 732 OF 2023** 5 5. Sri.Noushad K.A., the learned Public Prosecutor has filed a memo producing the FI statement wherein specific allegations have been made regarding two transactions of 3,96,000/- and Rs.3,52,000/- paid into the account of Sekar Garments with the IFC number and the bank account number. It was submitted that the investigation suspects the involvement of the petitioner also, in the crime and it is in such circumstances that the bank account has been directed to be frozen. 6. The learned Public Prosecutor relied upon the decisions in **State of Maharashtra v. Tapas D. Neogy [(1999) 7 SCC 685]** and also the decision in **Teesta Atul Setalvad and Others v. State of Gujarat and Others [(2018) 2 SCC 372]** and contended that police has a power to freeze the bank accounts in appropriate cases. The learned Public Prosecutor also informed that notice under Section 41A Cr.P.C. was issued to the petitioner and that he had failed to turn up, pursuant to the said notice and that when the Investigating Officer approached the petitioner's address, it was found that there was no such addressee, thereby creating suspicion of petitioner's involvement in the crime. 7. Considering the nature of order being issued, notice to 3[rd] and 4[th] respondents are dispensed with. 8. A perusal of the FIR as well as the FI Statement reveals that two transactions mentioned in the FI Statement indicate that an amount of Rs.7,48,000/- was credited into the account of the petitioner based upon a WhatsApp chat. The petitioner has tried to justify the receipt of the **WP(CRL.) NO. 732 OF 2023** 6 amount as due from a customer who purchased goods from him as per Ext.P10 and Ext.P11 invoices. Whether the said amount credited into petitioner's account is a subject matter of the crime involved in FIR No.30 of 2023 of Cyber Crime Police Station or not is a matter which will have to be investigated. Further, whether the petitioner himself is involved in the crime is also to be investigated. However, for the amount of Rs.7,48,000/- allegedly credited into the account of the petitioner, his entire bank account ought not to be frozen, crippling the business, if any, being conducted by the petitioner. Such a procedure to freeze the entire bank account for a particular quantum of sum, is excessive and is too onerous a procedure which would fall foul of Article 14 of the Constitution of India. Every procedure contemplated under the provisions of Code of Criminal Procedure, 1973 must satisfy Part III of the Constitution of India and therefore any arbitrary action will fall foul of the Constitution. 8. Considering the above circumstances, it is ordered that freezing of the entire bank account of the petitioner is excessive and that it should be confined only to Rs.7,48,000/- alone. Petitioner is therefore be given the liberty to operate his bank account in excess of Rs.7,48,000/- and the freezing shall be confined to the aforesaid amount. 9. As the petitioner claims to be involved in a business where day to day operations are essential, an option is given to the petitioner to keep apart an amount of Rs.7,48,000/- in a separate account with the HDFC Bank, Broadway Parrys Corner Branch itself and the said amount shall be **WP(CRL.) NO. 732 OF 2023** 7 under a lien into Crime No.30 of 2023. If such an account is started and the amounts are kept aside, that amount can be operated only after getting instructions from the 2[nd] respondent and the freezing of account will be confined only to that account. It is also clarified that, if in case during the course of investigation, the 2[nd] respondent is satisfied that further amounts are involved in the commission of crime and the petitioner has any involvement, he will be free to initiate appropriate steps including to proceed against the bank account of the petitioner. The writ petition is allowed to the above extent. Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM **WP(CRL.) NO. 732 OF 2023** 8 ## **APPENDIX OF WP(CRL.) 732/2023** ## **PETITIONER'S EXHIBITS :** **Exhibit-P1 A TRUE COPY OF THE FIR DATED 02-05-2023 ON THE FILES OF THE CYBER CRIME POLICE STATION, ERNAKULAM RURAL Exhibit-P2 A TRUE COPY OF PETITIONER FIRM'S GST REGISTRATION CERTIFICATE ISSUED BY THE GOVERNMENT OF INDIA DATED 25-01-2021 Exhibit-P3 A TRUE COPY OF GST RETURN STATEMENT IN FORM GSTR-3B DATED 05-03-2021 Exhibit-P4 A TRUE COPY OF GST RETURN STATEMENT IN FORM GSTR-3B DATED 19-07-2023 Exhibit-P5 A TRUE COPY OF THE FORM GSTR-1 STATEMENT DATED 19-07-2023 Exhibit-P6 A TRUE COPY OF PETITIONER FIRM'S IMPORTER-EXPORTER CODE ISSUED BY THE GOVERNMENT OF INDIA DATED 23-01-2021 Exhibit-P7 A TRUE COPY OF THE PERMANENT ACCOUNT NUMBER OF THE PROPRIETOR OF THE PETITIONER FIRM DATED NIL Exhibit-P8 A TRUE COPY OF THE AADHAAR OF THE PROPRIETOR OF THE PETITIONER FIRM DATED 20-12-2015 Exhibit-P9 A TRUE COPY OF THE STATEMENT OF BANK ACCOUNT NO. 50200068386033 OF THE PETITIONER FIRM MAINTAINED WITH THE HDFC BANK LTD. BROADWAY PARRYS CORNER CHENNAI BRANCH DATED 05-03-2023 Exhibit-P10 A TRUE COPY OF THE GST INVOICE, BEARING NO. SE/2023/105, ISSUED BY THE FIRM TO MR. NAJEEB DATED 05-01-2023 Exhibit -P11 A TRUE COPY OF THE GST INVOICE, BEARING NO. SE/2023/107, ISSUED BY THE FIRM TO MR. NAJEEB DATED 05-01-2023**