TaxTMI 
TaxTMI 
2020 (12) TMI 640
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...., revisional powers of this Court have been invoked impugning the said order, inter alia, seeking extension of the custody of the accused-respondent No.2 with the applicant for a period of 10 days. 5. Facts necessary for disposal of the revision application are as follows: One Shri Ramesh Ramkrishna Iyer (for short 'the complainant') Ex-Vice Chairman of M/s. Tops Group Services and Solutions Limited (for short 'Tops Group') filed a complaint in the Court of Metropolitan Magistrate, Ballard Piers, Mumbai bearing No.39/Misc/ 2020 dated 15th October, 2020 with a prayer for an investigation under section 156 (3) of the Code of Criminal Procedure (for short 'Cr. P.C'). Pursuant to the directions to that effect, Yellow Gate Police Station, Mumbai registered an F.I.R bearing MECR No.3/2020 dated 28th October, 2020 under sections 420, 406, 465, 467, 468, 471, 120B of the Indian Penal Code (for short 'I.P.C') against Tops Group and it's Promoter and Chairman Shri Rahul Nanda and others. 6. The sum and substance of the complaint lodged by the complainant is that Mr. Rahul Nanda and his Assistant diverted huge funds from the accounts of the Tops Group to various accounts in India ....
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....d him that respondent No.2 is the close confidante of one Mr. Pratap Sarnaik, a sitting M.L.A and that they have to share monthly profit emerging from M.M.R.D.A with Mr. Pratap Sarnaik through respondent No.2. As such, from May, 2017 till June, 2020, an amount aggregating to Rs. 2.36 Crores has been shared as a commission. Out of the said amount, Rs. 90,00,000/- have been paid through a Bank transfer to Mr. Sanket More and respondent No.2. The complainant had shared the documentary evidence and stated that the amounts are still being shared from the Tops Group Bank accounts. Approximately, seven crores have been paid to Mr. Sanket More and respondent No.2 since 2014. 10. The applicant has also recorded statement of Mr. Niraj Bijalani, Mr. Amar Panghal and Ms. Pragati (Latika) Vikas Randive, Account Assistant as well as statement of respondent No.2 under section 50 of the P.M.L Act. 11. On the basis of the statements of the aforesaid persons, the applicant is satisfied as regards involvement of respondent No.2 in the offence of money laundering, and, therefore, was arrested on 25th November, 2020. 12. When respondent No.2 was produced before the Special Court under P.M.L Ac....
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....lso drawn my attention to the Whats App chat which is relevant in order to investigate the scheduled offences. Mr. Singh has placed reliance upon few judgments which shall be referred hereinafter. 15. Mr. Merchant, while strongly opposing the prayer of the applicant, at the outset, questioned the maintainability of the revision application, as according to him, it being an interlocutory order, revision is not tenable. Mr. Merchant took me through section 167 (2) of the Cr. P.C vis-a-vis sections 19 and 46 of the P.M.L Act. According to him, the custody either judicial or with the Investigating Agency has to be within 15 days as a whole and should not exceed and, therefore, since it is an interlocutory order which has not attained finality and as such cannot be a revisable order in view of section 397 (2) of the Cr. P.C. However, Mr. Merchant submitted that for challenging the said order, powers under section 482 of the Cr. P.C can be invoked but the assignment is with different Court. 16. While supporting the impugned order, Mr. Merchant submits that the order is not perverse wherein the learned Special Judge has applied his mind and exercised his discretion judiciously which....
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.... petitioners/accused to deliver a huge amount of Rs. 65,71,000/- for purchase of land at Ambeghar, Taluka Pen. Despite receiving such a huge amount of consideration, the land was purchased in the name of the petitioners and their family members and thereby, the complainant was deceived as he was cheated and there was a criminal breach of the trust by the petitioners. After their arrest, the petitioners were produced before the learned J.M.F.C, however, the learned J.M.F.C refused to grant Police custody remand by observing that it was a civil dispute and remanded the petitioners to judicial custody. The learned Magistrate thereafter released the petitioners on bail pursuant to their applications for bail. 19. The revision application preferred by the State before the Sessions Judge was allowed and the learned Additional Sessions Judge set aside the order refusing to grant the Police custody remand. The learned Sessions Judge, inter alia, directed the Magistrate to reconsider the application for Police custody again. Being aggrieved by the said judgment of the Sessions Judge, the petitioner approached this Court. The learned Single Judge elaborately discussed the issue involve....
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....rs. In such a situation, what is the harmonious way out ? In our opinion, a happy solution of this problem would be to say that the bar provided in subsection (2) of section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one of the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must....
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....Court in N.M.T Joy Immaculate (supra) would not apply to the facts of that case since the question which fell for consideration before the Apex Court in the said case was whether the order passed by the Magistrate granting police custody for one day was an interlocutory order or not. 11. In the present case, the learned Magistrate has refused to grant police custody and, therefore the said order, in my view clearly had become a final order since thereafter the State cannot file further application for granting of police custody and in respect of the said subject matter the order had become final. The ratio of the judgment in Ambarish Rangeshahi Patnigere, 2010 ALL MR (Cri) 2775 (supra), therefore, in my view, would squarely apply to the facts of the present case. Therefore, I am of the view that the Sessions Court has correctly held that the revision application is maintainable. 12. So far as the question of continuation of PCR is concerned, Shri Chitnis, the learned Senior Counsel for the Petitioners relied upon the judgment in Anupam J. Kulkarni, (1992) 3 SCC 141 (supra) in support of his submission. In my view, ratio of the judgment in the case of Anupam J. Kul....
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....ld that the period of calculating the custody would commence from the date of order of remand which in the said case was 05/10/1991 and, thereafter, he remained in jail custody till 29/10/1991 continuously for a period of more than 15 days and, under these circumstances, the Apex Court has observed that thereafter an application for PCR could not be made". 20. It has been observed by this Court that when the Magistrate refuses to grant Police custody, the said order becomes a final order and thereafter the State cannot file further application for grant of Police custody and in respect of the said subject matter, the order had become final. 21. It is thus clear that it is for the Court to consider the nature of the order and determine whether the order has become final or not and accordingly decide whether the revision application can be entertained against it. 22. In view of the judgment in case Ambarish Rangeshahi Patnigere Vs. State of Maharashtra, 2010 ALL MR (Cri.) 2775, the Single Judge of this Court has considered the aspect in respect of refusal by the Magistrate to consider the request for Police custody and has observed that the observations of the Apex Court in ....
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....er which determines the principal matter in question is termed 'final'.' In para 1608 at pages 744 and 745 we find the words : 'An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declarations of right already given in the final judgment are to be worked out, is termed 'interlocutory'. An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals.' In para 15 of the said judgment, the Supreme Court has indicated that even certain orders, which would be normally stamped as interlocutory orders, took in their embrace a final adjudication so far as certain important rights of the parties were concerned and that if that was so, the order in question should not be considered as interlocutory order. In this connection the Supreme Court had occasion to deal with Amar Nath's case AIR 1977 SC 2185 : (1977 Cri LJ 1891). The Supreme Court observed in that conn....
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....he said loans still have not been repaid by Tops Group. Also Corporate Credit cards are issued in the names of Company and are being utilised by Mr. Rahul Randhir Nanda and his family members and we are now being made scapegoats to take all blame of the Company. It is also learnt that Mr. Rahul Randhir Nanda and his family members have already left the country and are currently based in Dubai. (r) In the year 2014, a contract was signed with Mumbai Metropolitan Regional Development Authority (MMRDA) wherein there were about 350 to 500 guards which were deployed at MMRDA sites on a monthly basis. It is found out from records that the billing was done for all the guards as per contract, but only 70% of guards were actually deployed. The wages paid details were submitted to MMRDA for 100% of the contract value based on the number of guards to be deployed as per the contract and not on the basis of actual deployment of the guards. Accordingly, compliance documents like PF/ESIC are being submitted for 100% of the contract value and not on the basis of actual deployment i.e. at the reduced strength of guards deployed. (s)Huge cash amount's were withdrawn from T....
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..... I am submitting 12 pages of the whatsapp chats of "Senior Management Group" showing in support of the above. In the subject Group, myself, Mr. Rahul Nanda, Mr. Ayush Pasari, Mr. Jasmeet Reki, Mr. Amar Panghal, Mr. Shashidharan, Ms. Rasshi Nanda and Roohie Nanda. In Whatsapp chat dated 15 June 2019, Mr. Rahul Nanda specifically asked me to handle Amit properly as he is Pratap's main man. In the conversations, the word "PO" was used. I want to clarify that the word "PO" was a code word for carrying out cash transactions whenever. I wish to add that, in the marriage of Purvesh Sarnaik, son of Mr. Pratap Sarnaik, 100 guards were provided complimentary at the marriage venue on the instructions of Mr. Rahul Nanda, I am submitting one page of whatsapp conversation held in "Senior Management Group" in this regard". 27. Relevant portion of the statement of Amar Panghal reads thus; "(n) There are several irregularities in the contract of MMRDA also. In the year 2014, a contract was signed with Mumbai Metropolitan Regional Development Authority (MMRDA) wherein there were about 350 to 500 guards which were deployed at MMRDA sites on a monthly basis. It is found ....
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....Mr. Amit Chandole used to collect the said profit share on behalf of Mr. Pratap Sarnaik. The funds mostly used to be delivered in cash. Either he used to collect the same or the finance staff used to deliver the same to him. Ms. Latika Randive used to maintain the records for the same and she mostly used to coordinate with Mr. Amit Chandole. Q.6 :- What was the reason for sharing the profit with Mr. Pratap Sarnaik? Ans:- Mr. Pratap Sarnaik used to have a good family bonding with Mr. Rahul Nanda. For the various events organized by Mr. Pratap Sarnaik, free of cost security guards were used to be provided to him under instructions of Mr. Rahul Nanda. Mr. Pratap Sarnaik had no role to play in the company and as per my understanding, the reason for sharing the profit with Mr. Pratap Sarnaik was better coordination of MMRDA with Tops Security & smooth running of contract. Q.7 :- Have you met Mr. Pratap Sarnaik or Mr. Amit Chandole? Ans :- I met Pratap Sarnaik in his office and I was introduced to him by Mr. Rahul Nanda only. As far as I remember, I along with Mr. Rahul Nanda and Mr. Ramesh Iyer had met Mr. Pratap Sarnaik regarding some tenders of Than....
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....perfunctory approach by ignoring that it is not a simple crime but is so enormous and complex which requires a thorough probe and investigation by the Investigating Agency in view of the provisions of P.M.L Act. Merely because, the Investigating Officer could not answer the queries of the learned Judge does not ipso facto mean that the material collected and the statements recorded by the Investigating Agency are figments as there is no reason for the Enforcement Directorate to falsely implicate respondent No.2 when there is clinching material prima facie exhibiting nexus of respondent No.2 with the co-conspirators. Unless there is free, fair and full investigation of the crime of such a large and colossal magnitude, which could fructify only by a custodial investigation, the learned Judge ought to have applied his mind while considering prayer of extending custodial interrogation. 33. It appears that the learned Judge pre-supposed that the complainant being an ex employee of the Tops Group has every reason to implicate the former employer. Such observations are uncalled for, unnecessary and without any basis. Thus, requirements of section 3 of P.M.L Act are precisely attracted ....
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....l of these extracts reveals about the transaction in the name of respondent No.2 in whose account, from time to time, huge amounts in lakhs appear to have been debited from the account of Tops Group. Respondent No.2 shall have to explain about the same. 38. The grounds (f) and (g) on page No.6 of the revision application as rightly been stated by Mr. Merchant, were not raised in the remand application and, therefore, these grounds cannot be considered for the first time in the revision application. 39. However, it would be important to read even the statement of respondent No.2 recorded on 25th November, 2020 under section 50 of the P.M.L Act wherein he has clearly stated that he came into contact with Rahul Nanda through Mr. Pratap Sarnaik, who is his close friend. It indicates that there was contract of Tops Group with M.M.R.D.A in which he has 50% share of the profit arising out of contract which was for providing security guards to M.M.R.D.A. There was no written agreement about share of 50% profit as it was an oral agreement on the basis of trust. It also reveals that 50% profit sharing used to be made in cash. Mr. Bijlani used to pay the amount who used to get the pa....