TaxTMI 
TaxTMI 
2020 (12) TMI 640
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.... 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 as well as in the accounts of Overseas Companies. The funds....
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....tap 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 Act for remand seeking his custody with the applicant for 10 days, the le....
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....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 needs no interference by way of a revision. He submits that respondent No.2 is....
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.... 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 involved by taking into consideration the various case laws on the subject. Mr. Singh has drawn ....
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....ld 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 exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal ....
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....ourt 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. Kulkarni, (1992) 3 SCC 141, would not apply to the facts of the present case. In the said case, facts were that on the basis of the material which was available S....
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....usly 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 the case State represented by Inspector of Police and others Vs. of N.M.T Joy Immaculate, (2004) 5 Supreme Court Cases 729 would not apply to the facts of that case since the question which fell for consider....
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.... 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 connection as follows :- "It is neither advisable, nor possible to make a catalogue of orders to determine which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those ....
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....nda 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 Topsgrup bank accounts and were given to the ex-CEO of Tops Group Mr. Niraj Bijlani. In the year FY 2017-18 itself an amount of Rs. 92 lakhs or thereabout was handed over to Mr. Niraj Bijlani and it is understood from him that there was an arrangement with two persons named Mr. Sanket S. More and Mr. Amit S. Chandole that 50....
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.... 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 out from records that the billing was used to be done for all the guards, however only 70% of guards were actually deployed by Tops Group under instructions of Mr. Nanda. The wages were being paid by 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. (o) In relation to the above MMRDA contract, ....
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....ed 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 Thane Municipal Corporation. I have met Mr. Chandole around 5-6 times as he used to come to office frequently for the purpose as stated above in reply to the Q-5 and Q-6." 29. Relevant portion of the statement of Chandrakant Abhang reads thus; "Q.4. How do you know Sh. Amit Chandole? Ans :- I saw him in 2014/2015 in Land & Estate Department of MMRDA, coming out of DMC Cabin. Later, I was informed by Raju Pandey that he is Sh. Amit Chandole." 30. Relevant portion of the st....
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....aterial 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 from the aforesaid material placed on record. Prima facie, it appears that the proceeds of crime exchanged hands from M.M.R.D.A, Tops Group and respondent No.2. 34. On the point of arrest of respondent No.2, Mr. Merchant contends that there are no reasons for the belief of the Investigating Officer which are to be recorded in writing and, therefore, there is no due compliance of section 19 of the P.M.L Act. A perusal of the arrest order dated 25th November, 2020 reveals that respondent No.2 has been informed of the grounds of such arrest....
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....en 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 payment through NEFT also. 40. It is argued by Mr. Singh that involvement of respondent No.2 with proceeds of the crime is not only with respect to the less supply of Security Guards to MMRDA and excess bills raised but also his involvement with respect to other transactions as well. It is quite surprising that a person like respondent No.2 has been collecting cash from the amount received from MMRDA without any lawful authority which indeed needs to be probed thoroughly. Mr. Singh submits that not only has MMRDA been cheated, but a very influential pol....