IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.3524/2014 Between:
Assistant Director Mr. David Vijay Rajendra Aged about 38 years Directorate of Enforcement Government of India (Foreign Exchange Management Act & Prevention of Money-Laundering Act) No.9/1, State Bank Road Bangalore – 560 001. … Petitioner (By Sri P.Prasanna Kumar, Advocate) And:
1. State of Karnataka by Halasurgate Police Station Bangalore – 01.
2. Deputy Director of Income Tax Unit-II (1) C.R. Building Queens Road Bangalore – 52.
3. Satish Tukaram Pakare @ Satyavan S/o. Tukaram Pakare, Aged about 41 years R/o. Balodi Village Khanapura Taluk Sangli District – 700612. ...Respondents ( By Sri Vijayakumar Majage, Addl. SPP for R1 By Sri K.V. Aravind., Advocate for R2) This Criminal Petition is filed under Section 482 of Cr.P.C., praying to set aside the impugned order dated 01.10.2013 passed by the I M.M.T.C in C.C. No.758/2012 and grant the interim custody of Rs.55,00,000/- seized in P.F. No.27/2011 of Cr.No.95/2011 of the 1st respondent police.
This Criminal Petition coming on for Admission this day, the Court made the following:
O R D E R Heard learned counsel for the petitioner and learned standing counsel appearing for respondent No.2 and learned Additional SPP for respondent No.1.
2. Respondent No.1 – Halasurgate Police seized a sum of Rs.55,00,000/- from the 3rd respondent during investigation in Crime No.95/2011 on 17.04.2011 and the said property was subjected to PF No.27/2011. During the pendency of the proceedings before the learned Magistrate, the petitioner herein filed an application on 27.04.2011 under Section 37 of Foreign Exchange Management Act, 1999 read with Section 451 and 457 of Cr.P.C. for release of the said amount to the interim custody of the petitioner on the ground that subject money is under investigation by the Directorate of Enforcement. While the said application dated 27.04.2011 was pending consideration by the trial Court, respondent No.2 - Deputy Director of Income Tax – (Investment), Bengaluru moved an application under Sections 451 and 457 of Cr.P.C on 29.04.2011 for release of the very same property in PF No.27/2011 on the ground that the subject money was unaccounted income of respondent No.3 and the same was required for the purpose of adjudication under Section 132(A) of the Income Tax Act, 1961. Without considering the earlier application filed by the petitioner herein, by the impugned order dated 01.10.2013, the learned I MMTC, Bengaluru allowed the application filed by the 2nd respondent and directed the Investigating Officer to transfer the said amount of Rs.55,00,000/- (PF No.27/2011) to the Income Tax Department.
3. Even though both the parties have raised legal contentions in support of their respective claims for release of property covered in PF No.27/2011 yet, the trial Court having not considered the prior application filed by the petitioner herein for release of the said property, without expressing any opinion on the legal contentions urged by the parties, the impugned order is liable to be set-aside and the matter deserves to be remanded to the trial Court for consideration of both the rival applications together. Hence, the following;
ORDER The petition is allowed.
The impugned order dated 01.10.2013 passed by the learned I M.M.T.C in C.C.No.758/2012 is set-aside.
The matter is remitted to the learned Magistrate to hear the parties on the application filed by the petitioner under Section 37 of Foreign Exchange Management Act, 1999 read with Sections 451 and 457 of Cr.P.C and the application filed by respondent No.2 under Sections 451 and 457 of Cr.P.C and thereafter, proceed in accordance with law.
The parties are directed to appear before the learned Magistrate on 30.05.2019 without any further notice.
Sd/-
JUDGE NBM