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IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 13.04.2022

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W.P.(CRL) 2482/2021

V PLUS TECHNOLOGY PVT LTD

..... Petitioner

Through:

Mr. Amit Mahajan, Mr. Pulkit

Prakash, Mr. Rajeev Ranjan, Mr.

Saimon Farooqui, Advs.

versus

THE STATE (NCT OF DELHI) & ANR.

..... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE JASMEET SINGH

:

JASMEET SINGH, J (ORAL)

1.

This is writ petition seeking a writ in the nature of Mandamus

cancelling/ staying the debit freeze order of bank account No.

407411212776 maintained at RBL Bank at Banglore, where the debit freeze

order has been passed. That the order of debit freeze was informed to the

petitioner by letter of 07.10.2021 by RBL Bank which reads as under:

“Date: 07/10/2021

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001595

Branch Manager.”

2.

It is this order which has been challenged before this Court. The said

order was issued on a complaint by one Ms. Payal on the basis of which an

FIR was registered on 22.10.2021 with P.S. Kanjhawala. In the FIR, it has

been stated that Ms. Payal was defrauded of Rs. 25,000/- through a Cyber

fraud. The respondents have filed a status report, wherein it is submitted:

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001595

YESB0CMSNOC and this account was found same which was

transactions lies with account holder only.”

3.

Mr. Mahajan, learned counsel for the petitioner, stated that the order

for debit freeze has been passed pursuant to a notice u/s 91 Cr.P.C. which, in

law, is impermissible. He submits that the power u/s 91 Cr.P.C. is only to

summon documents and an order of debit freeze can only be passed u/s 102

Cr.P.C.

4.

Even while passing an order u/s 102 Cr.P.C. the police officer passing

an order has to forthwith report to the magistrate having jurisdiction. He

submits that even assuming that the order of debit freeze was passed

pursuant to the powers u/s 102, the respondent has complied with section

102(3) i.e. to inform the magistrate only on 20.12.2021.

5.

Lastly, Mr. Mahajan has argued that a coordinate bench of this Court

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001595

in Muktaben M. Mashru v. State of NCT of Delhi and the Anr. 2019 SCC

OnLine Del 11509 has dealt with the ambit and scope of section 102 and

observed as under:

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001595

setting aside of the prohibitory order.”

6.

He further submits that even assuming the allegations of Ms. Payal to

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001595

be correct, the correct procedure should have been asking the petitioner to

execute bond undertaking to produce the amounts in Court as and when

required. He submits that the petitioner has always been and is ready and

willing to execute that bond.

7.

Per contra, Mr. Kundu, learned ASC, appearing for the State submits

that the notice was, in fact, issued u/s 102 Cr.P.C. and not u/s 91 and the

mention of section 91 was only a procedural irregularity.

8.

He further submits that the magistrate was informed on 20.12.2021

after some delay, but the delay is not fatal to the case of the prosecution.

9.

As far as the judgment of the Muktaben is concerned, Mr. Kundu is

unable to show any law taking a contrary view.

10.

I have heard arguments and gone through the records. It is an

admitted case that u/s 91 Cr.P.C, the order of debit freeze could not have

been passed. Mr. Kundu is also correct in stating that it was a procedural

lapse on the part of the investigating agency to nomenclature the notice u/s

91 because the prosecuting agency has the power to debit freeze an account

even though not u/s 91 Cr.P.C. but u/s 102 Cr.P.C.

11.

As far as the compliance of 102(3) is concerned, I am of the

view that there has been a delay in compliance of the provision and

the magistrate was informed only after more than 2 months