TaxTMI 
TaxTMI 
2025 (12) TMI 1316
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.... therefrom, And/or B) Pass such other or further order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case." 2. The petitioner, who is a citizen of England, United Kingdom, has preferred the present petition challenging the impugned order dated 09.06.2023 whereby, the learned Special Judge, (PC Act), (CBI)-16, Rouse Avenue District Courts, declined to cancel the non-bailable warrants issued against the petitioner vide order dated 10.02.2023. BACKGROUND 3. The Central Bureau of Investigation (CBI), New Delhi registered an FIR No. RC2172020A0002 on 23.06.2020 under Sections 120B and 420 of Indian Penal Code, 1860 (for short, 'IPC'), and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short, 'PC Act') against Shri Venugopal Dhoot and one unknown officer of the Consortium of Banks led by the State Bank of India. 4. As the offences alleged in the aforesaid FIR were scheduled offences, the respondent/Directorate of Enforcement (for short, 'ED') registered an ECIR bearing No. ECIR/HQ/08/2020 on 30.06.2020. The case of the respondent/ED is as under: - 4.1. During investigat....
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.... in the overseas jurisdictions. In India, he controls the business affairs of M/s Engineer.ai India Private Limited and its other group companies. Earlier, during the period from 2008-09, he was doing his business through M/s Nivio Technology India Pvt. Ltd. ('Nivio India'). The petitioner was running its business at overseas thorough his flagship company, 'nHoldings SA', USA, till 2014. 4.6 The investigation has revealed that Videocon Group Companies in India and overseas had transactions with the companies of the petitioner. Videocon group had made payments to M/s Nivio Technology India Pvt. Ltd. (Nivio India) amounting to Rs. 18,44,77,000/- during the period from 15.12.2008 to 02.01.2011. However, a loan agreement was signed between Nivio Technology India Pvt. Ltd and Videocon Industries Limited (VIL), only on 24.05.2011, whereby, VIL had lent an amount of Rs. 17,31,98,430/- (equivalent to USD 3,789,900). The agreement was signed by the petitioner and Shri P.N. Dhoot on behalf of Nivio India and VIL respectively. This agreement, as per respondent/ED, appears to be after thought which needs further investigation. 4.7 On 23.10.2011, a loan agreement of USD 2.5 million was si....
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.... Dhoot were the Directors and Authorized Signatories of the accounts through which funds were routed and sent to Global EPC Ventures Limited for further investment in nHoldings SA. It has not been confirmed from the investigation so far about the further travel of the proceeds of crime from nHoldings SA as the account statement of nHoldings SA was not provided. 4.14. In pursuance of the aforesaid investigation, the petitioner was summoned for his personal appearance and seeking information relating to the investments made by the Videocon Group companies, and in order to ascertain his role in his company and holding assets in siphoning off the investment funds in Videocon Group Companies. The sequence of summons issued to the petitioner as per the case of the respondent, as stated in their reply is as under: - Date Description 05.01.2022 Summons were issued to the Sh. Sachin Dev Duggal for his appearance on 27.01.2022 19.01.2022 Summons received back as undelivered at the given address. 19.01.2022 The summons were again sent to the another address of his company at GF 77B, Sector 18, IFCO Road Gurugram, Haryana. 26.01.2022 Postal authorities had retu....
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....eafter, an application dated 07.02.2023, MISC ASJ/35/2023, was filed before the learned Special Court, PMLA, New Delhi, for issuance of Non-Bailable Warrants which was allowed vide order dated 10.02.2023. Thereafter, the present petitioner moved an application, MISC/DJ/ASJ/98/2023, for cancellation of the aforesaid Non-Bailable Warrants which was dismissed vide the impugned order dated 09.06.2023 passed by learned Special Judge, (PC Act), (CBI)-16, Rouse Avenue District Courts. SUBMISSIONS ON BEHALF OF THE PETITIONER 5. Learned Senior Counsel appearing on behalf of the petitioner, at the very outset, draws the attention of this Court to the order dated 03.02.2023 passed by the learned Special Court PMLA, Greater Bombay, and particularly, towards the following paragraphs: - "12. I carefully examined all these facts. Also, I carefully gone through the copies of summons, E-mail correspondence between ED and Sachin Dev Duggal. Considering the allegations I asked the Assistant Director, what. is .the exact status of Sachin Dev* Duggal? Whether he is an accused or a witness? He submitted that, Sachin Dev Duggal is a witness and not cooperating the summons. In such situatio....
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....aph 23 of the impugned order dated 09.06.2023, wherein, it has been recorded that the Enforcement Directorate/respondent never admitted that the petitioner was a 'witness', which is contrary to the statement made on behalf of the respondent recorded before the learned Special Court, Greater Bombay. It is further submitted that learned Special Court in the impugned order erred in giving a finding that the application of the respondent was never rejected; however, they were given an option to move the application for the issuance of Non-Bailable Warrants before the learned Special Court PMLA, Delhi. It is further submitted that learned Special Court, Greater Bombay, had clearly observed that statement made by the respondent/ED was that the petitioner was being sought to be summoned as a 'witness', and thus, Non-Bailable Warrants cannot be issued for such a person. It is further submitted that the learned Special Court in paragraph 35 of the impugned order has recorded that the petitioner was aware of the summons and, he ought to have appeared in pursuance of the summons issued to him, and, despite not being served in accordance with law, he should have appeared before the respondent ....
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....cordingly. 2) In the case of countries referred to in Figure 4.4 and other non-English speaking countries, the summons/notices/judicial documents should be accompanied with the certified/authenticated translation (in duplicate) in the official language of the country where such document is proposed to be served. 3) The documents are served by the Requested Country as per their domestic laws and procedure. 4) For the purpose of Figure 4.6 the issuing Authority shall be the Authority issuing summon/notice/judicial processes. 5) The execution of non-bailable warrants of arrest amounts to extradition. Hence, they do not come under the ambit of service of judicial documents. However, only the service and not the execution of Non-Bailable warrants can be done by IS-II Division, MHA. 6) The IS-II Division, MHA shall make endeavours to transmit summons/notices/judicial processes in cases relating to serious crimes against women and children to the Requested Country preferably within a period of ten working days. It is however clarified that the MHA cannot quantify the time period taken by the Requested Country to serve such summons/notices/judic....
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....ion. Not only that, on 23.10.2011, a loan agreement of USD 2.5 million was signed between the applicant/accused Sachin Dev Duggal and Jupiter Corporation, wherein Sachin Dev Duggal was lender and Jupiter Corporation was borrower. According to investigating agencies, this all is clearly indicating that VIL has transfered funds to applicant/accused Sachin Dev Duggal group of companies in India and correspondingly, they have transfered the fund to Videocon Group overseas companies. 18. It is the case of the ED that there are certain transactions between Videocon Group overseas companies and applicant/accused Sachin Dev Duggal Group of companies indicating transfer and siphoning of funds and it is alleged that applicant/accused Sachin Dev Duggal is involved in both the transaction that took place in India and abroad as well. According to ED, there are so many unexplained transactions related to applicant/accused Sachin Dev Duggal, for which his presence before the ED during enquiry is required." 14. It was submitted on behalf of respondent/ED by learned Special Counsel that in the application moved before the learned Special Court, it had been clearly stated that the petiti....
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.... manner seeking appearance for investigation has been stated in the summons, and that the person who has been summoned cannot dictate as to how and when he would appear before the Court. 17. Learned Special Counsel appearing on behalf of the respondent/ED further drew the attention of this Court to an email dated 08.12.2022 sent on behalf of petitioner showing again that he is ready to comply with summons; however, he did not appear in pursuance of the same. It is further submitted that the service through the MLAT is on the correct address which would be deemed service, and the same has been duly noted by learned Special Court in paragraph 25 of the impugned order dated 10.02.2023 while issuing Non-Bailable Warrants against the petitioner. 18. Learned Special Counsel appearing on behalf of the ED/respondent submits that the petitioner had filed an application, CRL.M.A. 6462/2025, before this Court seeking interim stay of summons dated 28.01.2025 issued by the respondent which was served on the petitioner vide an email dated 26.02.2025. It is submitted that the petitioner filed the aforesaid application along with an accompanying affidavit which was signed by him on 14.02.202....
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....ication of this Chapter in relation to a contracting State with which reciprocal arrangements have been made, shall be subject to such conditions, exceptions or qualifications as are specified in the said notification. 57. Letter of request to a contracting State in certain cases.- (1) Notwithstanding anything contained in this Act or the Code of Criminal Procedure, 1973 (2 of 1974) if, in the course of an investigation into an offence or other proceedings under this Act, an application is made to a Special Court by the Investigating Officer or any officer superior in rank to the Investigating Officer that any evidence is required in connection with investigation into an offence or proceedings under this Act and he is of the opinion that such evidence may be available in any place in a contracting State, and the Special Court, on being satisfied that such evidence is required in connection with the investigation into an 25 offence or proceedings under this Act, may issue a letter of request to a court or an authority in the contracting State competent to deal with such request to- (i) examine facts and circumstances of the case, (ii) take such steps as th....
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....ubmitted that in the email dated 19.01.2022 sent on behalf of respondent, it is clearly admitted that summons sent through post at the registered address of M/s Engineers.AI were returned undelivered. It is further submitted that the petitioner has been cooperating with investigating agency and supplying them every document. It is further submitted that Figure 4.6 in the guidelines which is a format for request of service of summons/notice of judicial process for purpose of MLAT is not the same as the one which was sent by respondent/ED and the said guidelines have not been followed by the respondent/ED. It is further submitted that no concept of 'deemed service' exists, and every service has to be carried out in accordance with procedure established by law. ANALYSIS AND FINDINGS 24. Heard learned counsels for the parties and perused the records. 25. After hearing the arguments, the judgment was reserved for pronouncement on 13.05.2025; however, a legal issue with respect to interpretation of Section 73 of the CrPC was noted and since the arguments were not addressed by either of the parties on the same, the petition was re-listed for clarification on 27.05.2025 and therea....
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....tness nor as an accused the persons so summoned is considered to be only suspect. To consider any person so summoned either witness or accused, it depends on the conclusion of the investigation. If during the course of the investigation and material in possession of the authority and also there is reasonable belief that such person is guilty of offence of Money Laundering then the investigating officer can arrest by invoking the section 19 of PMLA, 2002 after complying with necessary requirements. Since, Sh. Sachin Dev Duggal not attending before the competent authority though he has visited India. Since the suspect is not cooperating in the investigation the crucial evidences could not be gathered hence this petition is being filed for issuance of NBW to proceed with the investigation and to secure his presence. **** **** **** PRAYER That in view of the foregoing facts and circumstances of the case which reflects non-compliance of summons by Sh. Sachin Dev Duggal, it is humbly prayed that: i. An open-ended Non-Bailable Warrant may please be issued against the aforementioned respondent under Section 65 of PMLA, 2002 r/w Section 70 of Code of Crim....
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....caped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest. (2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge. (3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under section 71." 29. It is admitted case that no prosecution complaint was filed before the learned Special Court against the present petitioner. It is also not the case of the respondent that the learned Special Court had issued summons to the petitioner for his appearance which had not been complied with. The application moved on behalf of the respondent under Section 70 of the CrPC, essentially was to ensure that the petitioner cooperates in the investigation, however, it is nowhere stated in the said application that the petitioner at any stage was being summoned as an "accused". It is the case ....
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.... who is to execute the warrant, to release that person on terms and conditions as provided therein. Section 72 provides that a warrant shall ordinarily be directed to one or more police officers but if its immediate execution is necessary and no police officer is immediately available it may be directed to any other person for execution. Section 73, which is required to be interpreted in these appeals, reads as under: "73. (1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest. (2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge." 14. Section 76 requires the police officer or other person, who executes the warrant to bring the person arrested before the Court (unless he is released in terms of Section 71), within twenty-four hours. *** *** *** 19. At this stage it is pertin....
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....860] and if during investigation the Investigating Officer intends to arrest the person accused of the offence he has to seek for and obtain a warrant of arrest from the Magistrate. If the accused evades the arrest, the only course left open to the Investigating Officer to ensure his presence would be to ask the Magistrate to invoke his powers under Section 73 and thereafter those relating to proclamation and attachment. In such an eventuality, the Magistrate can legitimately exercise his powers under Section 73, for the person to be apprehended is "accused of a non-bailable offence and is evading arrest". 22. Another factor which clearly indicates that Section 73 of the Code gives a power to the Magistrate to issue warrant of arrest and that too during investigation is evident from the provisions of Part C of Chapter VI of the Code, which we have earlier adverted to. Needless to say the provisions of proclamation and attachment as envisaged therein is to compel the appearance of a person who is evading arrest. Now, the power of issuing a proclamation under Section 82 (quoted earlier) can be exercised by a Court only in respect of a person "against whom a warrant has been ....
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.... sole discretion which has to be judicially exercised in accordance with Section 167(3) of the Code. Since warrant is and can be issued for appearance before the Court only and not before the police and since authorisation for detention in police custody is neither to be given as a matter of course nor on the mere asking of the police, but only after exercise of judicial discretion based on materials placed before him, Mr. Desai was not absolutely right in his submission that warrant of arrest under Section 73 of the Code could be issued by the courts solely for the production of the accused before the police in aid of investigation." (emphasis supplied) It is pertinent to point out that in the aforesaid case, CBI after apprehending one of the absconders recorded his confessional statement and an application was moved by CBI stating that following the disclosure of the involvements of the respondents therein in the offences, raids were conducted at their hideout to arrest but none of them were apprehended in spite of best efforts as they were deliberately evading their arrest to escape the clutches of law and thus, prayer for issuance of non-bailable warrants of arrest agains....
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....011 from the treating Doctor in Switzerland shows that the second surgery was not urgent and could be planned according to professional agenda. Further with regard to non-appearance on 27th April, 2011 it is evident that the Petitioners were very much in Delhi in view of the affidavits sworn by them at Delhi. However they failed to appear before the Investigating Officer. The power of the Court under Section 73 CrPC to issue non-bailable warrants against the persons who are accused of non-bailable offence and are evading arrest is clearly defined. Despite notices by the CBI the Petitioners refrained to appear before them. The Petitioners are accused persons in this case and because of their absence the Court was justified in issuing of warrants. The Learned Trial Court examined the reasons given by the Petitioners for their non-appearance before the Investigating Officer after the 21st February, 2011 and came to the conclusion that the same were not justified and there was no sufficient explanation. Though the Petitioners had sent a fax message on 2nd April, 2011 stating that they would appear before the Investigating Officer on 11th April, 2011, however they did not appear on the ....
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....er, proceed in accordance with law. 14(ii). The judgments relied upon by learned counsel for the petitioners as also by learned counsel representing the respondents precisely lay down this very proposition. 14(iii). In the case of State Through CBI Vs. Dawood Ibrahim Kaskar and Others (supra), the CBI had moved an application before the designated Court praying for issuance of non-bailable warrants of arrest against the accused to initiate further proceedings in the matter to apprehend them and/or to take further action to declare them as proclaimed offenders. These applications came to be rejected by the designated Court. It was held by the designated Court that there was no provision which entitled the Investigating Agency to seek for and obtain aid from the Court for the same. It was held that presence could be compelled only to face the trial but no process could be issued in aid of investigation under Section 73 CrPC The matter reached the Hon'ble Apex Court. After examining the matter, the Hon'ble Apex Court held that Section 73 Cr. P.C. gave the power to a Magistrate to issue warrants of arrest and that too during investigation. Reference was made t....
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....for initiating a prosecution against the noticee as such. The power entrusted to the designated officials under this Act, though couched as investigation in real sense, is to undertake inquiry to ascertain relevant facts to facilitate initiation of or pursuing with an action regarding proceeds of crime, if the situation so warrants and for being presented before the Adjudicating Authority. It is a different matter that the information and evidence so collated during the inquiry made, may disclose commission of offence of money-laundering and the involvement of the person, who has been summoned for making disclosures pursuant to the summons issued by the Authority. At this stage, there would be no formal document indicative of likelihood of involvement of such person as an accused of offence of money-laundering. If the statement made by him reveals the offence of money-laundering or the existence of proceeds of crime, that becomes actionable under the Act itself. 339. To put it differently, at the stage of recording of statement for the purpose of inquiring into the relevant facts in connection with the property being proceeds of crime is, in that sense, not an investigatio....
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....s validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji [Commr. of Police, Bombay v. Gordhandas Bhanji, 1951 SCC 1088 : AIR 1952 SC 16]: "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." Orders are not like old wine becoming better as they grow older." 34. Learned Senior Counsel while relying upon the aforesaid judgment reiterates his submission that the contradictory stand cannot be taken by the respondent as in....
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....id Court that the status of the present petitioner in the investigation is of 'Witness'. It is noted that on such a statement being made, the learned Special Court had observed that in the circumstances, if a person is not appearing in pursuance to the summons then, a complaint under Section 174 of the IPC should have been filed by the ED, and thus, there was no occasion for issuance of Non-Bailable Warrants. 37. This Court has gone through the material placed on record on behalf of the petitioner as well as respondent and it is noted that in pursuance of summons dated 05.01.2022, which as per the case of the respondent was sent on e-mail as well as served by hand at the office address of the company i.e., 77B, Ground Floor, Sector 18, IFFCO Road, Gurugram, Haryana, the petitioner admittedly sent an e-mail on 27.01.2022 seeking an adjournment for two weeks on account of health concerns, and after considering the same, the respondent had fixed the date for his appearance on 10.02.2022. It is also the case of the respondent that the petitioner was at that relevant time in India and, therefore, did not appear deliberately and, thereafter, took a legal stand that he has not been ser....
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....ascent stage. The investigation or enquiry in the present matter is for gathering material evidence before arriving at a conclusion whether or not the offence as defined under section 3 of the PMLA is made out or not. Only when such an offence is made out and the allegations of money laundering are supported by material and evidence on record, then only ED would file prosecution complaint against any person. 30. Further, in a case where investigation is at a crucial stage, specially as regard the role played by Mr. Sachin Dev Duggal, as narrated in the application under consideration coupled with the evidence collected so far by the ED and considering the serious nature of allegations as alleged, this court is of the considered opinion that the personal presence of Mr. Sachin Dev Duggal is required in connection with the investigation of the present case. As stated herein above, despite the service of summon Mr. Sachin Dev Duggal has not appeared. The conduct of Mr. Sachin Dev Duggal becomes more doubtful when it is alleged that recently he has visited India from 14.10.2022 to 20.10.2022, but he opted not to appear before the ED. 31. One may argue that the offence....
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....espondent/ED while relying upon the judgment of Hon'ble Supreme Court in Vijay Madanlal Choudhary (supra) had contended that summons issued by the respondent/ED under Section 50 of the PMLA is for recording of statement, purpose of which is to inquire into relevant facts in connection with the property emanating from proceeds of crime and the same, in that sense, would not be investigation as such and "in any case there will be no formal accusation against the noticee". There is no dispute with regard to the aforesaid proposition as the respondent is well within its power to issue summons under Section 50 of the Act to the petitioner. Non-compliance of such summons would make the petitioner liable for prosecution under Section 174 of the IPC, which reads as under: - "Section 174. Non-attendance in obedience to an order from public servant. Whoever, being legally bound to attend in person or by an agent at a certain place and time in obedience to a summons, notice, order, or proclamation proceeding from any public servant legally competent, as such public servant, to issue the same, intentionally omits to attend at that place or time, or departs from the p....
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....ds of performance are necessarily forbidden." 40. Learned Special Counsel for respondent/ED has also raised an objection with regard to the maintainability of the present petition as the same has been filed through Power of Attorney holder on behalf of the petitioner. Reliance was placed on the judgement in T.C. Mathai and Another v. District & Sessions Judge, Thiruvananthapuram, Kerala AIR 1999 SC 1385. 41. Reliance was also placed upon a judgement passed by the learned Division Bench of Punjab and Haryana High Court in Mangal Dass Gautam v. State of Haryana 2020 (2) R.C.R. (Criminal) 382, wherein, it has been observed and held as under: - "39. In the light of the above observations, it is held that a petition under section 482 of Cr. P.C. 1973 can be filed by a Power of Attorney holder. As regards the maintainability thereof, it would dependent upon the facts and circumstances of each case as also with regard to the validity of the said Power of Attorney and the powers conferred therein. It requires to be mentioned here that there is no statutory bar provided by the legislature in the Cr. P.C. relating to filing or continuing of a criminal matter through a Power of....
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...., this Court cannot reject the present petition as being non maintainable. 44. In view of the aforesaid discussion and the law with respect to the issuance of Non-Bailable Warrants under Section 73 of the CrPC, this Court is not entering into the issue of whether the summons were served through proper channel or not or whether the summons were deliberately being avoided by the petitioner, despite his being aware of the same. For the limited purpose of this petition, this Court is satisfied that the power exercised by the learned Special Court for issuance of Non-Bailable Warrants was not as per the provisions provided for in the Code. 45. In view of the aforesaid discussion and in the facts and circumstances of the case, the present petition is allowed and the impugned order dated 09.06.2023 in MISC/DJ/ASJ/98/2023 is set-aside. Non-bailable warrants issued vide order dated 10.02.2023 against the petitioner stand cancelled. 46. The present petition is allowed and disposed of. 47. Pending applications, if any, also stand disposed of accordingly. 48. Needless to state that, nothing mentioned hereinabove, is an opinion on the merits of the case or any future proceedings/....
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....he concurrence sought IS-Il Division, MHA provides concurrence Request not concurred by IS-II Division, MHA Request is sent back for Rectification + The request is sent back to Investigating agency /State Goverment For Issuing LR IS-li Division, MHA concurs the request and transmits it back to Investigating Agency/State Government/UTs. Investigating Agency State Government/UTa presents the Request before the Court for issuance of LR LR Request For sending of MLA Request MLA Request The request is signed and issued by Central Authority of India Court issues LR The Court, on bring satisfied by the request made by the Investigating Agency, issues the LR. The Investigating Agency/State Government/UTs transmits it to the AD (IPCC), CBI (except ED ** ) Central Authority of india transmits the request to Foreign Country 7 MLA Request LR Request The Central Authority through AD (IPCC), CBI transmis the LA along with a forwarding letter to the Central Authority of the Requested Country or through concerned lodin Mission/Embassy/Diplomatic Channel as mentioned in the MLAT or on the basis of assurance of reciprocity issued by the Central Authonk....