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CR.RA/424/2008 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 424 of 2008
With
CRIMINAL
REVISION APPLICATION No. 425 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI Sd/-
===================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
NO
2
To
be referred to the Reporter or not ?
NO
3
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
NO
5
Whether
it is to be circulated to the civil judge ?
NO
=========================================================
JAYANTILAL
LALJIBHAI KOTECHA - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
VIRAT G POPAT for
Applicant(s) : 1,
MR MR MENGDEY APP for Respondent(s) : 1,
MR
YN RAVANI for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 19/01/2011
COMMON
ORAL JUDGMENT
RULE.
Learned A.P.P. waives service of rule on behalf of the
respondent-State and Mr.Ravani, learned Counsel, waives service on
behalf of respondent No.2.
These
revision applications filed by the same petitioner challenging two
separate orders passed by C.B.I. Court. In Criminal Revision
Application No.424 of 2008 the petitioner has challenged a portion
of the order dated 25.04.2006 passed by Special C.B.I. Court below
Exh.1 in CBI Criminal Misc. Application No.81 of 2004 in Special
Case No.20 of 2003, whereas in Criminal Revision Application No.425
of 2008 the petitioner has challenged a portion of the order dated
13.10.2006 passed by Special C.B.I. Court below Exh.7 in CBI
Criminal Misc. Application No.147 of 2006 in Special Case No.20 of
2003.
The
petitioner is a government servant employed in the Department of
Customs and Central Excise. While in service, C.B.I. allegedly
unearthed properties disproportionate to known source of his income.
Said case is, therefore, instituted against him. It is the case of
C.B.I. that the petitioner has amassed wealth to the tune of
Rs.21,10,440/- in excess of his known source of income. The
investigating agency therefore, seized his properties, documents,
sealed lockers not only of the petitioner but also of other family
members. Petitioner therefore, moved abovementioned applications
seeking release of the properties. It was in these applications the
C.B.I. Court passed two separate orders impugned in these petitions.
In
so far as order dated 25.04.2006, which is impugned in Criminal
Revision Application No.424 of 2008 is concerned, learned Judge
issued following directions:
“1. This
CBI Criminal Misc. Application No.81 of 2004 is partly allowed as
under:-
The
opponent CBI is hereby permitted and directed to release the
documents relating to the properties mentioned in the re-numbered
items at sr.nos.1 to 4 of page no.1 annexed to Exh.10 to the
applicant/original accused after following the requisite procedure.
The
opponent CBI is hereby permitted and directed to release the
document relating to the property mentioned in the re-numbered item
at sr.no.1 of page no.2 annexed to Exh.10 to the applicant/original
accused after following the requisite procedure.
The
opponent CBI is hereby permitted and directed to release the
articles re-numbered at item nos.1 to 4 of page no.3 annexed to
Exh.10 to the applicant/original accused after following the
requisite procedure.
So
far as above directions in Sub Para 1(i) and 1(ii) are concerned,
the same may be carried out by the opponent CBI on the
applicant/original accused giving undertaking that he shall not sell
or pledge or in any manner, whatsoever not to transfer the said
immovable properties. So far as the above direction in Sub Para
1(iii) is concerned, the same may be carried out by the opponent CBI
on the applicant/original accused giving undertaking to produce the
same in the Court as and when so ordered.
As
regards the prayer for the applicant/original accused to renew etc.
the Fixed Deposits, the Bonds etc. etc., which have matured for
encashment of the same are concerned, the applicant/ original
accused is hereby directed to bring the said facts to the notice of
the opponent CBI Gandhinagar in writing requesting to have the
renewal or re-investment of the maturity value and the opponent CBI
is hereby directed to have the same renewed or re-invested. The
opponent CBI is also directed that after the renewed or
re-investment of the relevant securities, the same shall be taken
into their possession and custody along with the original matured
encashed documents, furnishing xerox copies of the same, if so
required to the concerned Institution.
As
regards the amount shown in item no.40 of the statement-B of the
Charge Sheet at Mark 3/1 is concerned, on the request in writing
made by the applicant/original accused, the opponent CBI shall
arrange to have the relevant amount deposited in the Fixed Deposit
as may be desired by the applicant/original accused and the
opponent CBI then take into his custody the relevant documents of
the said Fixed Deposit.”
The
petitioner is aggrieved to the limited extent of the part of
directions contained in sub-para (iii) of the operative portion,
which can be reproduced again for ready reference:
“So
far as above directions in Sub Para 1(i) and 1(ii) are concerned,
the same may be carried out by the opponent CBI on the
applicant/original accused giving undertaking that he shall not sell
or pledge or in any manner, whatsoever not to transfer the said
immovable properties. … …”
In
so far as order dated 13.10.2006, which is impugned in Criminal
Revision Application No.425 of 2008 is concerned, the court rejected
the prayer of the petitioner for release of seized ornaments kept in
the lockers in the name of the wife of the petitioner and other
family members. The petitioner is also aggrieved by the direction to
hand over the service revolver to the Customs Department contained
in the said order, which reads as under:
“As
regards locker no.209 A (key no. 214) Central Bank of India, Gulbai
Tekra, Ambawadi, Ahmedabad shall be opened by the I.O. accompanied
by the Accused and two witnesses and shall open this locker and
Government service revolver lying in the locker may be handed over
to the Competent Authority of the Custom and Central Excise where
the Applicant Accused is serving subject to completing necessary
procedure as ma be required.”
Counsel
for the petitioner submitted that fixed deposits, in the name of the
petitioner and other family members totaling to Rs.21,16,946/-, are
still invested in different banks and originals thereof are in the
custody of CBI Court. He submitted that such amount is sufficient to
cover the entire alleged excess wealth amassed by the petitioner. If
such amount is left untouched, it would not be necessary to freeze
other properties and belongings of the petitioner and other family
members. He submitted that many of these properties were purchased
even prior to period under consideration.
Counsel
for the CBI opposed the request, contending that the courts below
have committed no error.
Upon
perusal of the documents and hearing counsel for the parties, I am
of the opinion that as long as fixed deposits are left untouched,
which would cover the entire disputed amount, the remaining
properties may be released. The details of such fixed deposits are
given hereinbelow:
Sr.
No. of Statement-B
Description
Cost
at the time of acquisi-tion
(in
Rs.)
1
Bank
Balance in Saving Account No. 5352 at Central Bank of India,
Gulbai Tekra, Ahmedabad (Account in the name of Mrs. Neela J.
Kotecha wife of Sh. J.L.Kotecha)
2,94,699.50
7
Balance
in Five Year recurring deposit Account No. 50900784 in the joint
name of Mrs. Kamla L. Kotecha and J.L.Kotecha.
28,800/-
8
Balance
in Five Year recurring deposit Account No. 50900787 in the joint
name of Mrs. Kamla L. Kotecha and J.L.Kotecha.
28,800/-
9
Balance
in Five Year recurring deposit Account No. 50900788 in the joint
name of Mrs. Kamla L. Kotecha and J.L.Kotecha.
29,880/-
10
Balance
in Five Year recurring deposit Account No. 50900789 in the joint
name of Mrs. Kamla L. Kotecha and J.L.Kotecha.
29,880/-
11
Balance
in Five Year recurring deposit Account No. 50900790 in the joint
name of Mrs. Kamla L. Kotecha and J.L.Kotecha.
29,880/-
20
Balance
in Five Year recurring deposit Account No. 51701203 in the joint
nam of Master Deep J. Kotecha UNG Sh. J.L.Kotecha.
1,20,000/-
12
Balance
in Time Deposit Account No. 545156 in the joint name of Mrs. Kamla
L. Kotecha and J.L.Kotecha.
50,000/-
13
Balance
in Time deposit Account No. 545157 in the joint name of Mrs. Kamla
L. Kotecha and J.L.Kotecha.
50,000/-
14
Balance
in Time deposit Account No. 545158 in the joint name of Mrs. Kamla
L. Kotecha and J.L.Kotecha.
50,000/-
15
Balance
in Time deposit Account No. 545159 in the joint name of Mrs. Kamla
L. Kotecha and J.L.Kotecha.
50,000/-
16
Balance
in Time deposit Account No. 545168 in the joint name of Mrs. Kamla
L. Kotecha and J.L.Kotecha.
50,000/-
17
Balance
in Time deposit Account No. 545180 in the joint name of Mrs. Kamla
L. Kotecha and J.L.Kotecha.
50,000/-
18
Balance
in Time deposit Account No. 545186 in the joint name of Mrs. Kamla
L. Kotecha and J.L.Kotecha.
50,000/-
19
Balance
in Time deposit Account No. 545198 in the joint name of Mrs. Kamla
L. Kotecha and J.L.Kotecha.
50,000/-
21
Six
year National Saving Certificate No. 18 EE 330692 dated 12.3.98 in
the name of Sh. JL Kotecha issued by Porbandar Head Post Office.
10,000/-
22
Six
year National Saving Certificate No. 18 EE 330693 dated 12.3.98 in
the name of Sh. JL Kotecha issued by Porbandar Head Post Office.
10,000/-
23
Six
year National Saving Certificate No. 11 EE 103586 dated 18.3.97 in
the name of Sh. JL Kotecha issued by Porbandar Head Post Office.
10,000/-
24
Six
year National Saving Certificate No. 11 EE 103585 dated 18.3.97 in
the name of Sh. JL Kotecha issued by Porbandar Head Post Office.
10,000/-
25
Six
year National Saving Certificate No. 11 EE 538584 dated 26.3.96 in
the name of Sh. JL Kotecha issued by Porbandar Head Post Office.
10,000/-
35
Unit
Trust of India, Monthly Income Plan-2000 membership No.
101-00-1260020701 in the name of Sh. JL Kotecha
1,35,000/-
36
Unit
Trust of India, Monthly Income Plan-2000 membership No.
101-00-1260020702 in the name of Sh. JL Kotecha
1,40,000/-
37
Unit
Trust of India, Monthly Income Plan-2000 membership No.
101-00-1260020703 in the name of Sh. JL Kotecha
1,35,000/-
40
Cash
of Rs. 4.5 lacs seized from the locker No. 404 in the joint name
of Smt. Neela J. Kotecha and Sh. JL Kotecha held at the Indian
Bank, C.G.Road, Navrangpura, Ahmedabad and Rs. 25,500/- seized
from the residence of Sh. JL Kotecha, 2 Amidhara Appt, Ambawadi,
Ahmedabad.
4,75,500/-
47
One
FFD NO. 8428 in the joint name of JL Kotecha and Neela J Kotecha
dated 15.12.99 issued by the Madhavpura Mercantile Co-op Bank P
Ltd. Shahibag, Ahmedabad
51,154/-
48
One
FFD NO. 8458 in the joint name of JL Kotecha and Neela J Kotecha
dated 6.1.2000 issued by the Madhavpura Mercantile Co-op Bank P
Ltd.Shahibag, Ahmedabad
51,154/-
49
One
FFD A/c.NO. 997 in the joint name of Neela Kotecha and JL Kotecha
dated 2.11.99 issued by the Madhavpura Mercantile Co-op Bank P
Ltd. Ambawadi Branch, Ahmedabad
57,843/-
50
One
FFD A/c. NO. 998 in the joint name of JL Kotecha and Neela J
Kotecha dated 29.12.2000 issued by the Madhavpura Mercantile Co-op
Bank P Ltd. Ambawadi Branch, Ahmedabad
57,843/-
Total
Rs. 21,15,433/-
Remaining
properties may be released. Ordered accordingly. The properties to
be released are as follows:
Sr.
No. of Statement-B
Description
Cost
at the time of acquisition (in Rs.)
1
One
plot No. 72 at Shreeji Nagar, Near Rokadia Hanuman, Porbandar(in
the name of Mrs. Neela J.Kotecha wife of Sh. J.L.Kotecha)
11,700/-
2
One
plot No. 97, Jalaram Nagar, Rananvav, State Highway, Porbandar (in
the name of Mrs. Neela J.Kotecha wife of Sh. J.L.Kotecha)
60,500/-
3
One
House near Kailash Garage Road, B/h. paradise Talkies, Porbandar
(in the name of Mrs. Kamlaben L. Kotecha mother of Sh.
J.L.Kotecha)
6,07,800/-
4
One
house at Gnan Jyot near Kamlabaug, Porbandar(in the name of Mrs.
Kamlaben L. Kotecha mother of Sh. J.L.Kotecha)
2,55,000/-
5
One
house aat 5, Swashray Society, Mavdi Road, Rajkot (in the name of
Mrs. Neela J. Kotecha wife of Sh. J.L.Kotecha)
2,30,000/-
2
Bank
Balance in Saving Account No. 5459 at Central Bank of India,
Gulbai Tekra, Ahmedabad (Account in the name of Sh. J.L.Kotecha)
9,874/-
3
Bank
Balance in Saving Account No. 14689 at Canara Bank, Old
Sachivalaya, Ahmedabad (Account in the name of Mrs. Kamlaben L.
Kotecha mother of Sh. J.L.Kotecha)
2,049/-
4
Bank
Balance in Saving Account No.14798 at Canara Bank, Old
Sachivalaya, Ahmedabad (Account in the name of Master Deep J.
Kotecha)
12,666/-
5
Balance
in Saving Account No. 22189 of Sh. J. L. Kotecha held at Bank Of
India, Kedarshwar Roasd, Porbandar
6,667/-
6
Balance
in Saving Account No. 9849 in the name of Smt. Neela V. Anadkat at
the Commericial Co-Op Bank Ltd, Grain Market, Porbandar.
1,118/-
26
Six
year National Saving Certificate No. 11 EE 285950 dated 26.3.96 in
the name of Sh. JL Kotecha issued by Porbandar Head Post Office.
5,000/-
27
Fixed
Deposit receipt No. 112074 dated 29.6.2001 issued by Indian Bank,
Navrangpura Branch, Ahmedebad in the joint name of Mrs. Neela J.
Kotecha and JL Kotecha.
5,000/-
28
ICICI
Tax saving Bonds Certificate No. 7433, Distinctive No. 10199 &
10200(Two bonds), Bond Holder No. 6806536 in the joint name of Sh.
JL Kotecha and Mrs. Neela j.Kotecha.
10,000/-
29
ICICI
Tax saving Bonds Certificate No. 81131, Bond Holder No. 08640-408
in the joint name of Sh. JL Kotecha and Mrs. Neela j.Kotecha.
5,000/-
30
ICICI
Tax saving Bonds Certificate No. 81132, Bond Holder No. 08640-408
in the joint name of Sh. JL Kotecha and Mrs. Neela j.Kotecha
5,000/-
31
ICICI
Tax saving Bonds Certificate No. 81133, Bond Holder No. 08640-408
in the joint name of Sh. JL Kotecha and Mrs. Neela j.Kotecha
5,000/-
32
ICICI
Tax saving Bonds Certificate No. 81134, Bond Holder No. 08640-408
in the joint name of Sh. JL Kotecha and Mrs. Neela j.Kotecha
5,000/-
38
Unit
Trust of India, Unit Scheme 1964 Unit Certificate No.
107000010001396 in the name of Sh. JL Kotecha
1,01,500/-
39
Unit
Trust of India, Unit Scheme 1964 Unit Certificate No.
107000010001397 in the name of Sh. JL Kotecha
1,01,500/-
41
Gold
and Silver articles found in the locker No. 455 maintained at
Porbandar Vibhagiya Nagrik Sahkari Bank Ltd. Porbandar.
4,550/-
46
Gold
and Silver articles found in the locker No. 1262A held in the name
of Smt. Neela J. Kotecha at Bank if India, Jamnagar Main Branch,
Jamnagar (which is Stridhan, given by her father at the
time of marriage)
2,50,753/-
51
Balance
in the SB A/c. No. 221 in the joint name of Smt. Neela Kotecha and
Sh. J.L.Kotecha maintained at the Madhavpura Mercantile
Cooperative Bank Ltd. Ambavadi, Ahmdabad.
9,328.96
With
respect to the direction not to deal with the properties, when I am
of the opinion that the fixed deposits in the custody of CBI Court
would sufficiently safeguard the interest of both sides, such
restriction is no longer required to be imposed. Further, with
respect to the service revolver, it is stated that the petitioner is
still in the service of the Customs Department. In that view of the
matter, the revolver shall be returned to the petitioner. He shall,
however, intimate this development to his department, who may
thereafter take such steps as may be found necessary in accordance
with law.
One
last safeguard is needed that some of the fixed deposits are in the
name of relatives of the petitioner, they shall also file an
undertaking before CBI Court that eventually if while passing final
order the court adjust the amounts of such fixed deposits, they will
not raise any objections for the same being done.
In
the result, revision applications are disposed of with the following
directions:
CBI
Court shall continue to hold the original documents of the
petitioner, fixed deposits, details of which are given in para No.9
of the order. Such fixed deposits shall be re-invested, as and when
they matured, till final disposal of the criminal proceedings;
relatives
of the petitioner, in whose names such fixed deposits are shown,
shall file undertaking within four weeks to the effect that they
will not raise any objections if the court adjusts the amounts of
such fixed deposits towards recovery while passing final order;
properties
mentioned in Paragraph No.(10) of this order shall be released
unconditionally;
directions
for not dealing with the immovable properties contained in the order
dated 25.04.2006 is deleted;
condition
for handing over service revolver to the customs department is
deleted. The petitioner shall, however, intimate having received
such revolver to his department.
Impugned
orders stands modified to the said extent. Direct service is
permitted.
Registry
to place a copy of this order in connected matter.
Sd/-
[AKIL
KURESHI, J]
***
Bhavesh*
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