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IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. Babu, J.
State Of Kerala Represented By The Additional Public Prosecutor – Petitioner
Versus
Deputy Director Directorate Of Enforcement And Ors. – Respondents
CRL.MC NO. 2681 OF 2024
Decided On : 08-07-2024
Section 91 Cr.P.C. - Refusal to permit seizure of documents from the custody of the Court - Prevention of Money-Laundering Act, 2002 - Sections 4, 13(1)(c), 13(1)(d) r/w 13(2) - Summary
Fact of the Case:
The case involved a financial/loan scam at a cooperative bank, leading to the investigation of offences under various sections of the IPC and the Prevention of Corruption Act. The Enforcement Directorate seized documents related to the case and refused to permit the Chief Investigating Officer to seize the files from the custody of the Court for forensic analysis.
Finding of the Court:
The Court found that the investigating agency should have requested the trial Court to hand over the relevant files for investigation rather than seeking permission to seize them. It directed the Court to hand over the relevant files to the Chief Investigating Officer for forensic analysis.
Issues: The refusal to permit seizure of documents for forensic analysis under Section 91 Cr.P.C. and the interpretation of the term 'Court' in the context of document custody.
Ratio Decidendi: The Court held that the term 'Court' in Section 91 Cr.P.C. is not confined to the Court where the petitioner filed FIR, and it can include any public office where the documents are kept in custody. It emphasized the necessity and desirability of the documents for investigation purposes.
Final Decision: The Court allowed the petition, set aside the previous order, and directed the Court to hand over the relevant files to the Chief Investigating Officer for forensic analysis within two months.
ORDER :
The challenge in this Cri.M.C. is to the order dated 12.01.2024 in Crl.M.P.No.1187 of 2023 in SC (PMLA) 04/2023 on the file of the Special Court for the trial of offence punishable under Section 4 of the Prevention of Money-Laundering Act, 2002, Ernakulam (the Additional Special Sessions Court (SPE/CBI)-III, Ernakulam). The State of Kerala challenges the order refusing the application filed under Section 91 Cr.P.C. by the Chief Investigating Officer of the Special Investigation Team constituted to investigate the financial/loan scam of Karuvannur Service Co-operative Bank Limited.
Facts:-
2. The Secretary-in-charge of the Karuvannur Service Co-operative Bank Ltd filed a complaint before the Irinjalakuda Police against six persons on 14.07.2021 alleging offences punishable under Sections 406, 420, 409, 465 r/w 34 of IPC. The Police registered an FIR alleging the aforesaid offences. As per order No.D3-108924/201/PHQ dated 21.07.2021, the investigation of the case was transferred to the Crime Branch, which registered Crime No. Cr.165/CB/TSR/R/21. During the investigation, offences under Sections 13(1)(c) and 13(1) (d) r/w 13(2) of the Prevention of Corruption Act, 1988, (PC Act for short) were added. Accordingly, the case was transferred to the Court of the Enquiry Commissioner and Special Judge (Vigilance), Thrissur on 30.05.2022. The investigating agency found that the accused committed financial fraud and misappropriation with the connivance of the members of the Board of Directors of the Bank.
3. The Enquiry Commissioner and Special Judge, Thrissur, by order dated 30.01.2023, attached 58 items of immovable properties. The Court also ordered the seizure of a vehicle and sale of the same in public auction. The Investigating Agency also found that the accused abused their official position by conjointly conspiring to issue illegal loans with fake names and addresses by, creating forged documents in the name of 180 persons from 2011 to 2020, and obtained loans and misappropriated the same. The accused created fake loans without the knowledge and consent of the persons in the name of whom loans were sanctioned by forging their handwriting, signatures, fingerprints and creating false documents. They siphoned off the entire loan amount so disbursed for their own purpose.
4. While the Crime Branch was proceeding with the investigation, the Officials of the Enforcement Directorate, Zonal Office, Kochi, conducted a search in the Karuvannur Service Co-operative Bank Ltd in the month of August 2022 and seized several documents.
5. The Chief Investigating Officer of the Special Investigation Team of the Crime Branch thereafter issued a letter to the Deputy Director, Enforcement Directorate on 20.08.2022 requesting to take urgent necessary steps to make available the original files in the custody of the Enforcement Directorate. The Investigating Officer did not get any reply from the Enforcement Directorate. On 25.08.2022, the Enforcement Directorate seized 162 files containing loan documents that were earlier kept by them in a sealed room in the Bank by preparing a seizure memo.
6. On 25.08.2022, the Chief Investigating Officer again sent a request to the Deputy Director of Enforcement Directorate to return the original loan files. In response to this letter, the Deputy Director of the Enforcement Directorate sent a reply informing that as per Section 21(2) of the Prevention of Money-Laundering Act, 2002 (‘the PMLA’ for short), only the party from whom the documents were seized is entitled to get the copy of the documents/records and informed that it might be procured from the adjudicating authority at New Delhi. By that time, the Enforcement Directorate filed a complaint as per the provisions of the PMLA and produced the relevant files before the Special Court dealing with PMLA cases.
7. The Chief Investigating Officer then filed Crl.M.P.No.1187 of 2023 in SC (PMLA) 04/2023 under Section 91 of the Code of Criminal Procedure, along with a
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