Case Title:
Sahil Raj Vs State of Tamil Nadu & Ors
Date of Order:
September 14, 2022
Bench:
Honourable Mr.Justice G.K.Ilanthiraiyan
Parties:
Petitioner- Sahil Raj
Respondent – State of Tamil Nadu &ors
SUBJECT
The writ petition was filed under Article 226 of the Constitution to defreeze the bank account of the petitioner which was freezed following the registration of an FIR. It was a case of cheating throught WhatsApp which amounted to cyber crime.
IMPORTANT PROVISIONS
- Section 91 in the Code Of Criminal Procedure, 1973- This Section was regarding issuing of summons to produce document or other things.
- Section 102(3) in the Code Of Criminal Procedure, 1973- This Section makes it mandatory that every police officer acting under sub- section (1) shall report the seizure of any property to the concerned Magistrate having jurisdiction. If the seized property is such that it cannot be produced before the Court he may give it’s custody to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same.
OVERVIEW
- Cheating was committed by an anonymous person through WhatsApp. A part time job was offered to the complainant in Flipkart and in order to get the job, the complainant followed all instructions of the anonymous person. He was directed to open a link and to create anaccount via that link. The complainant invested a sum of Rs.5,58,749/- in 26 instalments via Oceanpay link as instructed by the anonymous person. Theauto-fetch name of the account holder was displayed as Ankit Bansal.
- The payments were made through his mobile phone using Phonepe, Google Pay accounts and a Punjab National Bank net banking account. He was further told to deposit a sum of Rs.60,000/- in order to complete the task. However, he could not make this payment.
- The petitioner was sole proprietor of his business ‘AD Street’ which engaged in printing works and also in trading i.e. purchase and sale of virtual digital assets such as crypto currency on different exchanges.
- He had received an order of purchase of USDT (virtual digital asset in the form of crypto currency) from a user named Raj Ghosh on 21.10.2021. He made payment of Rs.89,000/- for the said purchase which is linked with his HDFC Bank current account via Phonepe.
- He released this crypto currency within 15 days to Raj Ghosh. It was whole being so, that the notice to freeze the petitioner’s account was sent by the State of Tamilnadu to the Branch Manager of Punjab National Bank, Inderpuri, New Delhi under Section 91 of CrPC.
- The petitioner was called upon to attend an enquiry on20.06.2022 before the Cyber Crime Police Station, Villupuram. The notice regarding this was issued only on 20.06.2022. It requires atleast minimum 14 days to appearfor enquiry with complete documents and records.
- The accounts of the petitioner were freezed and the investigation regarding the crime allegedly committed was pending.
- Since the petitioner had received a sum of Rs.89,000/- from one, Raj Ghosh for purchase of virtual digital assets in the form of crypto currency, there was reason to believe that the petitioner also was involved in similar kind of offence. Therefore, the Cyber Police requested the petitioner’s banker to freeze his account.
ISSUES RAISED
- Whether it was within the jurisdiction of the Cyber Police to direct the petitioner’s banker to freeze his account.
ARGUMENTS ADVANCED BY THE PETITIONER
- It was argued that the Cyber Police of Villupuram had no jurisdiction under Section 91 of Cr.P.C. to freeze the petitioner’s account. It cannot be termed under Section 102 of Cr.P.C, which is concerning power of the police to seize property.
- It was further submitted that it was on 20.06.2022, that the petitioner was served with a notice under Section 41-A of Cr.P.C. He was called to attend an enquiry on 20.06.2022 before the Cyber Police, Villupuram, that is on the same day that the notice was issued. It requires atleast minimum 14 days to appear before the police with complete documents and records. Thus the notice was said to have been issued without compliance with the conditions prescribed under Section41-A of Cr.P.C.
ARGUMENTS ADVANCED BY THE RESPONDENT
- The learned Additional Public Prosecutor argued that a sum of Rs.89,000/- was received by the petitioner from Raj Ghosh for purchase of virtual digital assets in the form of crypto currency. Therefore, there is adequate reason to believe that the petitioner was involved in the case under investigation. It was rightly requested by the Cyber Police to the petitioner’s banker to freeze his account.
- It was further submitted that despite the petitioner being issued notice under Section 41-A of Cr.P.C. and
- According to Section 91 of CrPC, the investigation officer summons the person to produce the document or other things. It is beyond their jurisdiction to freeze the suspected bank account.
- Moreover the Cyber Police has not complied with the procedure set out under Section 102(3) of Cr.P.C. The freezing of the petitioner’s bank account was not informed before theconcerned jurisdictional Magistrate even till now.
- However, as the petitioner himself admitted that he placed order of purchase of USDT (virtual digital asset in the form of crypto currency) from a user named Raj Ghosh on 21.10.2021, and also had received a payment of Rs 89,000/- the petitioner was directed to deposit the same amount as fixed deposit to the victim’s bank account.
- The Police was directed to issue a fresh notice summoning the petitioner for enquiry, by complying with all necessary procedures under Section 41 A of CrPC.
- Thus the writ petition was disposed of and the notice issued earlier was quashed as requested by the petitioner.
CONCLUSION
The High Court held that it was beyond the jurisdiction of the Cyber Police, Villupuram to direct the bank to freeze the petitioner’s bank account. They only had the jurisdiction to summon the petitioner for enquiry. The procedure for freezing any suspected bank account set out in Section 102 (3) included informing the concerned jurisdictional magistrate regarding the same. This was not followed by the respondents. Thus the petition was allowed in favour of the petitioner and all connected miscellaneous petitions were closed.
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