WP(C) Nos. 25774/2022 & 26228/2022: Dr. T. M. Thomas Isaac v. Deputy Director, Directorate of Enforcement; KIIFB v. Directorate of Enforcement, Reserve Bank of India, and The State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN ``` ``` THURSDAY, THE 14[TH] DAY OF DECEMBER 2023 / 23RD AGRAHAYANA, 1945 ``` ## `WP(C) NO. 25774 OF 2022` ``` PETITIONER: ``` ``` DR. T.M.THOMAS ISAAC, AGED 69 YEARS S/O T.P MATHEW, RESIDING AT FLAT NO. 1C, QUEENSWAY POINT, KOWDIAR-PATTOM ROAD, KOWDAIR P.O,THIRUVANANTHAPURAM, PIN - 695003 BY ADVS. N.RAGHURAJ NANDAGOPAL S.KURUP VIVEK MENON SAYUJYA RESPONDENTS: 1THE DEPUTY DIRECTOR, DIRECTORATE OF ENFORCEMENT, GOVERNMENT OF INDIA, KOCHI ZONAL OFFICE, KANOOS CASTLE, A.K.SESHADRI ROAD, MULLASSERRY, CANAL ROAD WEST, KOCHI, PIN - 682001 2THE ASSISTANT DIRECTOR DIRECTORATE OF ENFORCEMENT, GOVERNMENT OF INDIA, KOCHI ZONAL OFFICE, KANOOS CASTLE, A.K. SESHADRI ROAD, MULLASSERRY CANAL ROAD WEST, PIN - 682001 ADDL.R3THE RESERVE BANK OF INDIA, REPRESENTED BY ITS CHIEF GENERAL MANAGER, FOREIGN EXCHANGE DEPARTMENT, CENTRAL OFFICE, EXTERNAL COMMERCIAL BORROWINGS DIVISION, MUMBAI [ADDL.R3 IS SUO MOTU IMPLEADED AS PER ORDER DATED 10.10.2022 IN WP(C) 25774/2022] BY ADVS. SRI JAISHANKAR V NAIR-SC MILLU DANDAPANI ARL SUNDARESAN(ASGI), ``` ``` RESPONDENTS: ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.12.2023, ALONG WITH WP(C).26228/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) No.25774 & 26228/2022 ``` ``` 2 ``` ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 14[TH] DAY OF DECEMBER 2023 / 23RD AGRAHAYANA, 1945 ``` ## `WP(C) NO. 26228 OF 2022` ## `PETITIONER:` ``` 1KERALA INFRASTRUCTURE INVESTMENT FUND BOARD REPRESENTED BY DR. KANDATHIL MATHEW ABRAHAM, CHIEF EXECUTIVE OFFICER/FUND MANAGER, THE KERALA INFRASTRUCTURE INVESTMENT FUND BOARD, 2ND FLOOR, FELICITY SQUARE, MG SQUARE, STATUTE, THIRUVANANTHAPURAM- 695001 2DR. KANDATHIL MATHEW ABRAHAM CHIEF EXECUTIVE OFFICER/ FUND MANAGER, THE KERALA INFRASTRUCTURE INVESTMENT FUND BOARD, S/O MATHEW MAPPILA, AGED ABOUT 65 YEARS, R/O B 4 LOWER, MILLENIUM, APARTMENTS, JAGATHY, THYCAUD P.O, THIRUVANANTHAPURAM-695 014. 3ANIE JULA THOMAS. JOINT FUND MANAGER, THE KERALA INFRASTRUCTURE INVESTMENT FUND BOARD, D/O THOMAS KALLUMKAL KOSHY, AGED ABOUT 49 YEARS, R/O VILLA NO.2, THANOTHRA, EMBASSY HOMES, MUDAVANMUGAL, THIRUVANANTHAPURAM-695 012. BY ADVS. B.G.HARINDRANATH AMITH KRISHNAN H. M.GOPIKRISHNAN ``` ## `RESPONDENTS:` ``` 1DIRECTOR, DIRECTORATE OF ENFORCEMENT KOCHI ZONAL OFFICE, KANOOS CASTLE, A.K. SESHADRI ROAD, KOCHI - 682011. 2THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. ADDL R3THE RESERVE BANK OF INDIA, REPRESENTED BY ITS CHIEF GENERAL MANAGER, FOREIGN EXCHANGE DEPARTMENT, CENTRAL OFFICE, EXTERNAL COMMERCIAL ``` ``` WP(C) No.25774 & 26228/2022 ``` ``` 3 ``` ``` BORROWINGS DIVISION, MUMBAI. ADDL R3 IS SUO MOTU IMPLEADED AS PER ORDER DATED 10-10- 2022 IN WP(C)26228/2022 BY ADVS. Jaishankar V.Nair MILLU DANDAPANI SHRI.T.B.HOOD, SPL.G.P. TO A.G. ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.12.2023, ALONG WITH WP(C).25774/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) No.25774 & 26228/2022 ``` ``` 4 ``` ## `JUDGMENT` ``` C.R ``` ``` The Kerala Infrastructure Investment Fund ``` ``` Board (hereinafter referred to as ‘KIIFB’ for ``` ``` ease) is stated to be a body corporate, constituted by the State of Kerala under Section 4 of Kerala Infrastructure Investment Fund Act, 1999, (hereinafter referred to as ‘KIIF Act’ for ease). ``` ``` 2.Shorn of all unnecessary details, the ``` ``` pleadings on record indicate that ‘KIIFB’ issued Rupee Denominated Bonds, or the ‘Masala Bonds’, which opened for subscription on 26.03.2019 and closed on 27.03.2019. It is also asserted that ``` ``` bonds were dual listed on the London Stock Exchange (LSE) and the Singapore Exchange Ltd. (SGX); and that pricing of the issue was arrrived at using a book building process, which is standard for all primary market transactions. ``` ``` WP(C) No.25774 & 26228/2022 ``` ``` 5 ``` ``` 3.Among the afore two writ petitions - ``` ``` which are being heard together, adverting to the analogous factual circumstances pleaded and similarity of the reliefs sought – W.P. ``` ``` (C)No.26228/2022 has been filed by the ‘KIIFB’, ``` ``` along with its Chief Executive Officer and Joint Fund Manager; while, W.P(C)No.25774/2022 has been filed by an individual, who is stated to have been its ex officio Vice Chairperson. ``` ``` 4.The controversy, as per the petitioners, ``` ``` erupted when the Enforcement Directorate ``` ``` (hereinafter referred to as ‘ED’ for short) ``` ``` issued summons to them, pursuant to the powers vested with them under Section 37 of the Foreign Exchange Management Act, 1999 (FEMA), read with Section 131(1) of the Income Tax Act (IT Act); and they assert that this was an abuse of ``` ``` WP(C) No.25774 & 26228/2022 ``` **==> picture [8 x 8] intentionally omitted <==** ``` process, since the fundamental jurisdictional ``` ``` requirements have not been met. ``` ``` 5.Interestingly, the petitioners in W.P(C)No. 26228/2022, say that, they had, in fact, responded to the summons and appeared before the ‘ED’ atleast five times; and that, during each of such instance, the investigation was a sham and virtual farce. They contend that, therefore, when they received the impugned ``` ``` summons again, they had no other option but to approach this Court through W.P(C)No.26228/2022. ``` ``` 6.As far as the petitioner in W.P. ``` ``` (C)No.25774/2022 is concerned, he says that he has been constrained to impugn the summons issued to him, without answering it in any manner because, it makes no sense; and has, in fact, called for certain very personal details, thus breaching his privacy. He also has an ``` ``` WP(C) No.25774 & 26228/2022 ``` ``` 7 ``` ``` adscititious contention that he was anex ``` ``` officio Vice Chairperson of the ‘KIIFB’, who has absolutely no connection with his operations any ``` ``` further; and that in any event, “the information ``` ``` sought for from him through the impguned summons ``` ``` is one in the public domain which can be accessed by the ‘ED’ without having had to summon them”(sic). ``` ``` 7.Though I have recorded the essential ``` ``` pleadings, the fact remains that, when these ``` ``` matters were earlier considered by this Court on ``` ``` 24.11.2023, a submission was made by ``` ``` A.R.L.Sundaresan, learned Additional Solicitor General of India (ASGI), instructed by ``` ``` Sri.Jaisankar V.Nair – learned Standing Counsel ``` ``` for ‘ED’, that, being alerted by the mind of this Court - which was expressed at the Bar during the earlier hearings - his client is ``` ``` WP(C) No.25774 & 26228/2022 ``` ``` 8 ``` ``` proposing to withdraw the impugned summons ``` ``` involved in both the cases. ``` ``` 8.Normally, therefore, this Court would ``` ``` have been justified in stopping proceedings in ``` ``` these matters, recording the afore submission ``` ``` and to have closed the writ petitions. ``` ``` 9.However, Sri.Arvind P. Datar - learned ``` ``` SeniorCounsel,instructedby ``` ``` Sri.B.G.Haridranath - learned counsel for the ``` ``` petitioners in W.P.(C)No.26228/2022, submitted ``` ``` that, in addition to the challenge to the ``` ``` summons, his client has also sought for a ‘Writ of Prohibition’ against the ‘ED’ “from ``` ``` initiating any investigation into the issuance of Masala Bonds”(sic) by the KIIFB, “permission for which has already been obtained from the RBI”(sic). ``` ``` WP(C) No.25774 & 26228/2022 ``` ``` 9 ``` ``` 10.Sri.Jaideep Gupta, learned Senior ``` ``` Counsel, instructed by Sri.N.Raghuraj - appearing for the petitioner in W.P. ``` ``` (C)No.25774/2022, had adopted most of the ``` ``` submissions of Sri.Arvind P. Datar and pointed ``` ``` out that, as far as his case is concerned, the ``` ``` prayer is that impugned summons be quashed as being illegal and beyond the jurisdiction of ``` ``` FEMA. ``` ``` 11.Obviously, if the afore request had to ``` ``` be considered and answered by this Court, it was ``` ``` peremptorily necessary to have obtained details ``` ``` of the cause of investigation and its manner from the ‘ED’, which, very pertinently, they have guarded from the attention of this Court ``` ``` even in their counter pleadings. ``` ``` 12.I say as afore because, in the counter ``` ``` affidavit dated 22.09.2022 filed by the ‘ED’ in ``` ``` WP(C) No.25774 & 26228/2022 ``` ``` 10 ``` ``` W.P.(C)No.26228/2022, they very cautiously say ``` ``` that“theyhavereceivedan ``` ``` information/complaint”, which permits them to ``` ``` “trigger an investigation under Section 37 of ``` ``` FEMA, 1999” (sic); and that it was initiated ``` ``` “cemented by two facets:Firstly, complaints ``` ``` were received on the contravention of ``` ``` regulations of Foreign Exchange Management Act, 1999 by Kerala Infrastructe Investment Fund ``` ``` Board (KIIFB) a body corporate with respect to ``` ``` Rupee Denominated bonds overseas (Masala Bonds). ``` ``` Secondly there were observations on non- ``` ``` adherence to Constitutional provisions with respect to the Masala Bonds and KIIFB borrowings ``` ``` in the State Finance Audit Report of Comptroller ``` ``` and Auditor General of India for the year ended ``` ``` March 2019. In view of the said complaints and CAG Report, the Office of the 1[st] Respondent has ``` ``` WP(C) No.25774 & 26228/2022 ``` **==> picture [14 x 8] intentionally omitted <==** ``` initiated investigation into the allegations of ``` ``` the contravention of regulations of Foreign ``` ``` Exchange Management Act, 1999”(sic). ``` ``` 13.The ‘ED’ further asserts that “the very ``` ``` foundation of the investigation is the ``` ``` examination of contravention of the Regulations ``` ``` under the Foreign Exchange Management Act, 1999, ``` ``` if any, and as a part of the investigation ``` ``` process and by virtue of the powers conferred on ``` ``` the 1[st] Respondent (ED) summons were issued under ``` ``` Sections 37(1) and 3 of the Foreign Exchange ``` ``` Management Act, 1999 to the petitioners”(sic). ``` ``` 14.In fact, Sri.A.R.L.Sundaresan - learned ``` ``` ASGI, reiterated that the purpose of issuing summons during the course of preliminary ``` ``` investigation, was only for production of ``` ``` documents and recording oral evidence, on which, ``` ``` would then depend upon the requirement for a ``` ``` WP(C) No.25774 & 26228/2022 ``` ``` 12 ``` ``` further detailed investigation. He had added that, after such investigation and if there was contravention of the FEMA found, a complaint under Section 16(3) thereof, will be filed, giving rise to further statutory consequences. He, however, made a germane submission that the ‘ED’ is also investigating the issue on the question of “end use of the funds” generated by the ‘KIIFB’ through the issuance of the Bonds; and that they are empowered to do so, notwithstanding the fact that their banker, namely, the Axis Bank had filed documents before the RBI. ``` ``` 15.It was thus obvious that ‘ED’ was ``` ``` keeping away full information from this Court, asserting their right to do so, constrained by the requirement of maintaining secrecy and integrity of investigation; and that the ``` ``` WP(C) No.25774 & 26228/2022 ``` ``` 13 ``` ``` pleadings they filed before this Court disclosed precious little, disabling this Court from gathering what was the nature of the investigation, and the basis of such. ``` ``` 16.In fact, both the learned Senior Counsel ``` ``` - Sri.Arvind P. Datar and Sri.Jaideep Gupta, ``` ``` agreed to this; though Sri.Arvind P. Datar tried to impress upon me that, even with the information disclosed by the ‘ED’, it can only ``` ``` be assumed that the investigation initiated by ``` ``` them was with respect to issuance of “Masala ``` ``` Bonds”. He argued that this is impermissible ``` ``` because, same had been authorised by the “RBI”; and therefore, that the third prayer in this W.P.(C)No.26228/2022, namely, for a ‘Writ of Prohibition’restrainingthe‘ED’from initiating any investigation “into the issuance of the Masala Bonds” becomes necessary. ``` ``` WP(C) No.25774 & 26228/2022 ``` ``` 14 ``` ``` 17.As I have already said above, there is ``` ``` woefully insufficient information available in the pleadings, as to if the ‘ED’ is investigating the issue solely from the angle of issuance of ‘Masala Bonds’ by the ‘KIIFB’; and this, “prima facie”, appears to be not so because, it indicates that they are also investigating various other aspects, including the apprehended misuse of funds, thus causing contravention of the FEMA; but without disclosing any details. ``` ``` 18.That said, pertinently, when this matterwasconsideredon24.11.2023, ``` ``` Sri.A.R.L.Sundaresan - learned ASGI, submitted that his client has not been able to continue with the investigation because of the earlier interim order granted by this Court on ``` ``` 10.10.2022, whereby, they had been stopped from ``` ``` WP(C) No.25774 & 26228/2022 ``` ``` 15 ``` ``` issuing summons any further. He argued that such ``` ``` a blanket interdiction is impermissible in law and cited Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and others [AIR 2021 SC ``` ``` 1918)]; andSerious Fraud investigation Office ``` ``` v. Sahara Housing Investment Corporation Ltd. ``` ``` [(2022) 9 SCC 794] in substantiation. ``` ``` 19.Asalreadyseenabove, ``` ``` Sri.A.R.L.Sundaresan, thereafter, offered that the impugned summons will be withdrawn and fresh ``` ``` ones issued; and this Court felt that this would have been to the benefit of the petitioners because, had such summons been produced before this Court, perhaps, the reasons for the ``` ``` investigation would have become clearer - which the ‘ED’ would have been obligated to disclose, while any such proceedings were issued. ``` ``` WP(C) No.25774 & 26228/2022 ``` **==> picture [14 x 8] intentionally omitted <==** ``` 20.In such perspective, an order dated ``` ``` 24.11.2023 was issued, making it clear that, ``` ``` though the ‘ED’ can issue fresh summons, same ``` ``` will be subject to judicial review by this ``` ``` Court; and the matter was, thereafter, listed on ``` ``` 01.12.2023. ``` ``` 21.On the afore date, Sri.A.R.L.Sundaresan ``` - `learned ASGI, very interestingly, but not` ``` surprisingly, submitted that his client has not ``` ``` issued fresh summons, inspite of the order of ``` ``` this Court; and that they choose not to do so, ``` ``` until the matter is finally disposed of. ``` ``` 22.Indubitably, this Court could have ``` ``` perhaps drawn a negative inference against this; ``` ``` and the matter was, thereafter, listed on ``` ``` 08.12.2023. ``` ``` 23.However, on 08.12.2023, it was informed ``` ``` that the petitioners intriguingly have filed an ``` ``` WP(C) No.25774 & 26228/2022 ``` **==> picture [14 x 8] intentionally omitted <==** ``` appeal against the order dated 24.11.2023 and ``` ``` that it had been set aside on technical reasons, ``` ``` particularly that modification of an earlier ``` ``` interim order could not have been done. ``` `24. Apodictically, therefore, the situation` ``` is thus that ‘ED’ has been spared of any obligation to disclose the details of their investigation; and they, today, take the ``` ``` position very affirmatively that they will not ``` ``` make it available through pleadings, though ``` ``` they are willing to place it in a sealed cover before this Court for inspection. ``` ``` 25.The piquant situation now faced is that ``` ``` there is woefully small information available to ``` ``` this Court, as to what is the investigation being proceeded with by the ‘ED’; and any disclosure has been now stopped by the ``` ``` petitioners themselves, by ensuring that they ``` ``` WP(C) No.25774 & 26228/2022 ``` ``` 18 ``` ``` are not forced to make such disclosures through ``` ``` fresh summons or otherwise. ``` ``` 26.Of course, it was up to the petitioners ``` ``` to have been advised and to initiate action as ``` ``` they pleased; but this Court is now confined to the pleadings on record, which, as I have ``` ``` already said above, discloses precious little. ``` ``` 27.In the afore pespective, when I examine ``` ``` the request of Sri.Arvind P. Datar - learned ``` ``` Senior Counsel, that a ‘Writ of Prohibition’ be ``` ``` issued against the ‘ED’, restraining them from ``` ``` “initiating any investigation” to the issuance ``` ``` of ‘Masala Bonds’, it becomes untenable, if not ``` ``` impossible, because this Court is not aware ``` ``` conclusively, that their investigation is confined only to the aspects relating to the issuance of the ‘Masala Bonds’. ``` ``` WP(C) No.25774 & 26228/2022 ``` ``` 19 ``` ``` 28.To paraphrase, even if this Court is to accede to the request of the learned Senior Counsel and grant prayer No.3 in W.P. ``` ``` (C)No.26228/2022, it would, at the best, only ``` ``` mean that ‘ED’ cannot investigate the issuance of ‘Masala Bonds’ by the ‘KIIFB’; and it would not be possible to restrain them from launching or carrying on, any other investigation, including qua the end use of the funds, or the suspicion of its misuse – not to say that this Court holds so, but as argued/alleged by the learned ASGI - to bring it within the fold of FEMA. ``` ``` 29.In any event, it has been well settled – ``` ``` without requirement for expatiation - that it ``` ``` would not behoove a Court to grant blanket orders, including in the form of a Writ, to stop an Investigating Agency from investigating at ``` ``` WP(C) No.25774 & 26228/2022 ``` **==> picture [14 x 8] intentionally omitted <==** ``` all, notwithstanding the fact that the nature of ``` ``` the investigation, or the cause, and its terms, ``` ``` are not known. ``` ``` 30.I am persuaded as afore, also hearing ``` ``` Smt.Sumathi Dandapani – learned Senior Counsel, instructed by Sri.Millu Dandapani - appearing ``` ``` for Reserve Bank of India, who submitted that an affidavit has been filed by her client in WP(C)No.26228/2023 - which has been adopted in ``` ``` other case also - to the effect that, though ``` ``` Form “ECB II” has been submitted by the Bank for all the months until the time when the said ``` ``` affidavit was filed, the “investigating power ``` ``` with respect to utilization of funds” is with ``` ``` the ‘ED’, and not her client. She submitted that ``` ``` this is more so because, “Form ECB II” is a ``` ``` monthly return required to be submitted by the Bank of the KIIFB, which had been done; but that ``` ``` WP(C) No.25774 & 26228/2022 ``` ``` 21 ``` ``` the Reserve Bank does not investigate the veracity of the same, for which, it does not ``` ``` have competence. She submitted that, therefore, her client will abide by any directions to be issued by this Court in these writ petitions. ``` ``` 31.Sri.Aravind P.Datar – learned Senior ``` ``` Counsel at this time, intervened to say that the stand of the ‘ED’, which is available from the pleadings, would render it more or less clear that the impugned summons were issued with ``` ``` respect to issuance of ‘Masala Bonds’. He ``` ``` submitted that, therefore, his clients’ prayer for a writ to stop such investigation is deserving of being granted; and added to this saying that, in any event, the impugned summons are untenable because, under Section 131 of the Income Tax Act, it could have been issued only on pending proceedings. ``` ``` WP(C) No.25774 & 26228/2022 ``` ``` 22 ``` ``` 32.Ofcourse,theanswerof Sri.A.R.L.Sundaresan to this was that, under Section 37 of the FEMA, ‘ED’ is entitled to cause an investigation into the information received, “which is then opened in their books”; but that it is only if it is found, through a preliminary enquiry, that any warrant for further investigation is required, would it be necessary to register a case. ``` ``` 33.I do not propose to enter into the ``` ``` merits of either of the afore stand of the ``` ``` learned Senior Counsel and the learned Assistant Solicitor General of India; but it is without requirement of restatement and reiteration that any investigation has to be done for valid and cogent reasons. No such can be a roving one, solely for establishment of the cause of a complaint; nor can an entity like the ‘ED’ ``` ``` WP(C) No.25774 & 26228/2022 ``` ``` 23 ``` ``` continue investigation merely for the purpose of ``` ``` establishing a complaint. ``` ``` 34.Investigation into a complaint and the ``` ``` establishment of a complaint through a roving enquiry are two different aspects. ``` ``` 35. As long as an investigation is done, based on a complaint, or on the basis of valid or verifiable cause, certainly, it would be impossible for any Court to prohibit it from being done, so long as it is proceeded with ``` ``` within the parameters of the applicable law. ``` ``` 36.I am guided in my observations above, by the holdings of the Hon’ble Supreme Court in Serious Fraud investigation Office(supra), wherein, referring toNeeharika Infrastructure Pvt. Ltd.(supra),the Hon’ble Court declared unambiguously as under: ``` ``` WP(C) No.25774 & 26228/2022 ``` ``` 24 ``` ``` “14.ThisCourtinNeeharika ``` ``` Infrastructure (P) Ltd. v. State of Maharashtra cautioned the High Courts against passing blanket interim orders directing no coercive steps to be taken by the investigating authorities as that might hamper the investigation at an early stage. Having due regard to the material which has been placed on record, it cannot be said that the Union Government had not indicated reasons for the exercise of its jurisdiction under Sections 212 and 219. At this stage, the Union Government was only ordering an investigation and it would be inappropriate to place a burden of recording elaborate reasons when the purpose of the investigation is to ensure that a full enquiry into the affairs of the companies is carried out. The third reason which weighed with the High Court is hence specious. ``` ``` 15. For the above reasons, we are of the view that the High Court was not justified in staying the investigation and in passing the consequential directions which have been passed in the impugned orders at the interlocutory stage.” ``` ``` WP(C) No.25774 & 26228/2022 ``` ``` 25 ``` ``` 37.Sri.Aravind P.Datar, surely being aware ``` ``` of the afore position in law then made a ``` ``` corollary allegation that the actions of the ``` ``` ‘ED’ against the ‘KIIFB’ alone, and not against ``` ``` any other such Agencies who had floated ‘Masala ``` ``` Bonds’ in India, is extremely suspicious. He ``` ``` asserted that this is only for confutative reasons; and argued that therefore, the investigation, if any, being carried on by the ``` ``` ‘ED’ is illegal on such count also. ``` ``` 38.This submission of Sri.Aravind P.Datar ``` ``` can only be, prima facie, seem to be conjectural ``` ``` – through I notice that this was one of the ``` ``` aspects adverted to by this Court while issuing the interim order dated 10.10.2022. Hence, I ``` ``` deem it necessary to answer it, though ``` ``` peripherally. The argument, that ‘ED’ has ``` ``` initiated investigation only against ‘KIIFB’ and ``` ``` WP(C) No.25774 & 26228/2022 ``` ``` 26 ``` ``` not against any other Agency/Entity in India which had issued “Masala Bonds” in the past, I am afraid is extremely speculative and premature because, the sole aspect of inquiry may not be relating to issuance of “Masala Bonds” alone, but perhaps others like the end use of funds and such other, as asserted by Sri.A.R.L. Sundaresan. It is not in every case that there will arise an automatic suspicion that funds have been misused, or that there are other violations; and it is only in such instances, should the ‘ED’, normally intervene. These are thus matters of conjuncture, which this Court is not expected to answer in any manner whatsoever, especially when the ‘ED’ has been freed from the obligation to divulge details of their investigation, as seen above. ``` ``` WP(C) No.25774 & 26228/2022 ``` ``` 27 ``` ``` 39.Perhaps sensing the mind of this Court as afore, Sri.Aravind P.Datar and Sri.Jaideep Gupta, – learned Senior Counsel, submitted that if this Court is inclined to quash the summons impugned in these writ petitions, then liberty may be reserved, and their contentions left open, so as to enable their clients to invoke and impel them, as and when any further proceedings are taken by the ‘ED’ in future. They asserted that they will be able to ``` ``` establish with certainty, that ‘ED’ is acting without authority and beyond their powers vested, either under the FEMA or under other applicable statutes. ``` ``` 40.In fact, Sri.Jaideep Gupta – learned ``` ``` Senior Counsel, pointed out that his client has a specific case that the impugned summons are beyond the “jurisdiction of FEMA” (sic). ``` ``` WP(C) No.25774 & 26228/2022 ``` ``` 28 ``` ``` However, as I have already said above, this ``` ``` Court could have declared so affirmatively, only ``` ``` if the details of investigation and the complaint - based on which it is stated to be initiated - had been available, or made ``` ``` available; but which has not been offered by the ``` ``` ‘ED’, and which they have been spared from being forced to do, on account of the reasons already stated ut supra. ``` ``` 41.In any event, since the impugned summons ``` ``` are now stated to be withdrawn, or to be withdrawn, I do not think it will be necessary for this Court to enter into this at all because, as matters now stand, there does not appear to be any substratum on ``` ``` which the petitioners need to harbour apprehensions, or to challenge proceedings. Their liberty to do so, as and when it becomes warranted in future, certainly, is left open to them. ``` ``` WP(C) No.25774 & 26228/2022 ``` ``` 29 ``` ``` In the afore circumstances, WP(C)No.25774/20122 ``` ``` is allowed and WP(C)No.26228/2022 is allowed in part, recording that all the impugned summons issued by the ‘ED’ stand withdrawn. ``` **==> picture [21 x 8] intentionally omitted <==** ``` Sd/- DEVAN RAMACHANDRAN, JUDGE ``` ``` WP(C) No.25774 & 26228/2022 ``` ``` 30 ``` ## `APPENDIX OF WP(C) 26228/2022` |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P1`|`TRUE COPY OF THE LETTER DATED 22.05.2018`| ||`ADDRESSED BY AD-I BANK OF KIIFB TO RBI.`| |`Exhibit P2`|`TRUE COPY OF THE LETTER ADDRESSED BY RBI TO`| ||`KIIFB DATED 01.06.2018 .`| |`Exhibit P3`|`TRUE COPY OF THE LETTER OF RBI GRANTING A LOAN`| ||`REGISTRATION NUMBER DATED 22.03.2019.`| |`Exhibit P4`|`TRUE COPY OF THE SUMMONS ISSUED BY THE 1ST`| ||`RESPONDENT TO THE 2ND PETITIONER DATED`| ||`03.02.2021.`| |`Exhibit P5`|`TRUE COPY OF THE NEWSPAPER REPORTS ON THE CASE`| ||`REGISTERED BY 1ST RESPONDENT AGAINST KIIFB`| ||`DATED MARCH 2021.`| |`Exhibit P6`|`TRUE COPY OF THE SUMMONS ISSUED BY THE 1ST`| ||`RESPONDENT TO THE 2ND PETITIONER DATED`| ||`01.03.2021.`| |`Exhibit P7`|`TRUE COPY OF THE LETTER DATED 03.03.2021 SENT`| ||`BY THE 2ND PETITIONER TO THE 1ST RESPONDENT.`| |`Exhibit P8`|`TRUE COPY OF THE SUMMONS ISSUED BY THE 1ST`| ||`RESPONDENT TO THE 2ND PETITIONER DATED`| ||`08.03.2021.`| |`Exhibit P9`|`TRUE COPY OF THE LETTER SENT BY THE 2ND`| ||`PETITIONER TO THE 1ST RESPONDENT DATED`| ||`16.03.2021.`| |`Exhibit P10`|`TRUE COPY OF THE SUMMONS ISSUED BY THE 1ST`| ||`RESPONDENT TO THE 2ND PETITIONER DATED`| ||`08.12.2021.`| |`Exhibit P11`|`TRUE COPY OF THE SUMMONS ISSUED BY THE 1ST`| ||`RESPONDENT TO THE 3RD PETITIONER DATED`| ||`07.07.2022.`| |`Exhibit P12`|`TRUE COPY OF THE LETTER SENT BY THE 3RD`| ||`PETITIONER TO THE 1ST RESPONDENT DATED`| ||`20.07.2022.`| |`Exhibit P13`|`TRUE COPY OF THE SUMMONS ISSUED BY THE 1ST`| ||`RESPONDENT TO THE 3RD PETITIONER DATED`| ||`01.08.2022.`| |`Exhibit P14`|`TRUE COPY OF THE LETTER ADDRESSED BY THE 3RD`| ||`PETITIONER TO THE 1ST RESPONDENT DATED`| ``` WP(C) No.25774 & 26228/2022 ``` ``` 31 ``` ``` 08.08.2022. ``` ``` RESPONDENT EXHIBITS ``` ``` Exhibit R3(a) ``` ``` Exhibit R3(b) ``` ``` Exhibit R3(c) ``` ``` Exhibit R3(d) ``` ``` True copy of the Foreign Exchange Management (Borrowing or Lending in Foreign Exchange) Regulations, 2000 dated 03.05.2000 vide Notification No. FEMA.3/2000-RB ``` ``` True copy of the Master Direction - External Commercial Borrowings, Trade Credit, Borrowing and Lending in Foreign Currency by Authorized Dealers and Persons other than Authorized Dealers issued on 01.01.2016. ``` ``` True copy of the A.P. (DIR Series) Circular No.17 dated 29.09.2015 ``` ``` True copy of the A.P. (DIR Series) Circular No. 17 dated 16.01.2019 ``` ``` WP(C) No.25774 & 26228/2022 ``` ``` 32 ``` ## `APPENDIX OF WP(C) 25774/2022` ``` PETITIONER EXHIBITS Exhibit P1A TRUE PHOTOCOPY OF THE SUMMON NO. FEMA/ SUMMON/ KCZO/ 2022/ 247 DATED 12.07.2022 FROM THE SECOND RESPONDENT TO THE PETITIONER Exhibit P2A TRUE PHOTOCOPY OF THE REPORT IN ENGLISH.MATHRUBHUMI.COM (AT 6:17 AM ON 18.07.2022) ``` ``` Exhibit P3A TRUE PHOTOCOPY OF THE REPORT IN ONMANORAMA (AT 8:46 AM ON 18.07.2022) Exhibit P4A TRUE PHOTOCOPY OF THE PRINT OUT OF THE EMAIL DATED 18.07.2022 BY THE PETITIONER ADDRESSED TO THE SECOND RESPONDENT Exhibit P5A TRUE PHOTOCOPY OF THE SUMMON NO. FEMA/ SUMMON/ KCZO/ 2022/ 267 FROM THE SECOND RESPONDENT TO THE PETITIONER Exhibit P6A TRUE PHOTOCOPY OF THE REPORT DATED 03.08.2022 IN ONMANORAMA Exhibit P7A TRUE PHOTOCOPY OF THE LETTER NO. FA - 1/2./2022/ KIIFB DATED 05/08/2022 (WITHOUT ANNEXURES) ISSUED BY THE STATE PUBLIC INFORMATION OFFICER, KIFFB TO SHRI. GIRILAL.A.L Exhibit P8A TRUE PHOTOCOPY OF THE REPLY DATED 09.08.2022 ISSUED BY THE PETITIONER TO THE SECOND RESPONDENT ```