Court affirmed the validity of freezing a bank account under suspicion of crime while allowing withdrawal of unconnected funds.

JUDGMENT :

N.J. JAMADAR, J.

1. Rule. Rule is made returnable forthwith.

2. This petition under Article 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure 1973 (“the Code”), assails the legality, propriety and correctness of an order dated 5^th July, 2023 passed by the learned Additional Chief Metropolitan Magistrate, Esplanade Mumbai whereby an application preferred by the Petitioner to defreeze his account bearing No.1572669960 maintained with Central Bank of India, Dadar T.T. Branch, Mumbai came to be rejected.

3. The background facts leading to the petition can be stated in brief as under :-

3.1 Abhishek Sheth-Respondent No.3 is the brother of the Petitioner. Rajnikant, who passed away on 17^th October, 2010, was the father of the Petitioner and Respondent No.3. The Petitioner’s father was endowed with properties.

3.2 After the demise of the Petitioner’s father, all his investments in the equity markets were transferred in the name of his wife-Meena Sheth, the mother of the Petitioner and the Respondent No.3. Meena Sheth passed away on 5^th October, 2020.

3.3. The Petitioner alleges that after the demise of the mother, disputes arose between the Petitioner and the Respondent No.3 over the division of the property of their parents. The Respondent No.3 filed a suit bearing No.279 of 2022 before the High Court, Bombay for a declaration that the Respondent No.3 is entitled to 50% share in the securities and investments of their parents. The Respondent No.3 had also filed a complaint dated 30^th May, 2022 with Economic Offences Wing, Zone 4, Mumbai (“EOW”). Post inquiry, the said complaint was closed with remark that the dispute was of civil nature. The Respondent No.3 again filed a complaint with Matunga Police Station.

3.4 Eventually, suppressing the fact that the previous complaint was closed after inquiry, the Respondent No.3 filed a complaint purportedly under Section 156(3) of the Criminal Procedure Code, 1973 (“the Code”) being, Misc. Application No.1370 of 2023, before the learned Additional Chief Metropolitan Magistrate and, in the said complaint, on 16^th May, 2023, the learned Metropolitan Magistrate passed an order to register and investigate the offences, as alleged. On the strength thereof FIR No.240 of 2023 came to be registered against the Petitioner for the offences punishable under Sections 406, 420, 465, 467, 468 and 471 of the Indian Penal Code, 1860 (“IPC”).

3.5 The gravamen of indictment against the Petitioner was that the Petitioner had surreptitiously altered the nomination in the demat account maintained by the mother with Samco investments; mobile number was also dishonestly replaced so that Respondent No.3 and their mother should not get intimation regarding the transactions in the said demat account. The Petitioner had fraudulently got the securities transferred in his name under a purported gift by forging the signatures of their mother or by obtaining the signatures of their mother on the documents while she was virtually on death-bed. The Petitioner had also addressed correspondence from the email ID of the deceased, after her demise. Thereby, Crores of rupees were dishonestly and fraudulently converted by the Petitioner from the accounts of the mother.

3.6 During the course of investigation vide a communication dated 22^nd June, 2023, the Investigating Officer debit freezed the Saving Bank Account No.1572669960 maintained by the Petitioner with Central Bank of India, Dadar T.T. Branch, Mumbai as the allegedly wrongfully converted amount was credited into the said account, purportedly under the provisions contained in Section 102 of the Code. An intimation thereof was given to the learned Metropolitan Magistrate on 23^rd June, 2023.

3.7 The Petitioner preferred an application before the learned Additional Chief Metropolitan Magistrate seeking directions to de- freeze the account. It was inter-alia contended that on account of the order to debit freeze the said account the Petitioner w