RAKINDO DEVELOPERS P LTD Vs. COMMISSIONER OF POLICE

JUDGEMENT

(1.) THE petitioner herein/defacto complainant, who claims to be a Quasi-Government Association of United Arab Emirates dealing with purchase of vacant land, joint venture development and other allied businesses, is said to have entered into an agreement with the proposed accused/seller by name S.P.Velayutham for purchase of lands in and and around Tamil Nadu and in that regard, made payments to the said Velayutham to the tune of Rs.171 crores through cheques but, neither lands were procured for the petitioner nor the money repaid, resulted in preferring a complaint to the police having jurisdiction as well as the Commissioner of Police. On the prime allegation that, in view of the influence and nexus the accused has with some high-ranking police officials, the complaints which deserve immediate attention and action on the part of the police, could not be taken up even in the normal course, the present petition has been filed before this Court seeking to direct the fourth respondent/Central Bureau of Investigation (CBI) to receive the petitioner's complaint dated 14.02.2009 from the first respondent for registration of a case and proper investigation thereof or in the alternative to appoint a senior level officer in the rank of Inspector General of Police to register and investigate the case.

(2.) FACTS of the case, as projected in the affidavit filed in support of the petition, are narrated in brief for better understanding.With reference to land deals between the purchaser/petitioner and the proposed accused/seller, three Memorandum of Understandings (MOUs) dated 18.12.2007, 23.01.2008 and 23.05.2008 were entered into, whereupon, the seller received a total advance sale consideration of Rs.171,11,00,000/- (Rupees One Hundred and Seventy One Crore and eleven lakhs only) from the purchaser in the following manner:A. Rs.20 crores paid by the purchaser with respect to MOU dated 18.12.2007 ie.,i) Rs.5 crores, by cheque dated 01.08.2007 with No.000192, from IPN Management Consultancy Services Pvt. Limited.ii) Rs.15 crores by cheque dated 19.12.2007 with No.030157B. Rs.150 crores, by cheque dated 23.01.2008, No.000118, drawn on Kotak Mahindra Bank, as advance consideration as per MOU dated 23.01.2008 and C. Rs.1.11 crores, by cheque towards Advance Sale Consideration. Before receiving money, the proposed accused/intervener represented that his son-in-law is a directly recruited IPS Officer serving as Superintendent of Police at Nilgiris, his son-in-law's brother is a Deputy Commissioner of Police at Chennai and one of his close relatives is an Inspector General of Police, Tamil Nadu thus, with their assistance and backing, the land deals would be made viable and profitable without any impediment or difficulty. Since the defacto complainant was in dire need of lands in and around Tamil Nadu, believing such representation, huge money as aforesaid was given to S.P.Velayutham. The proposed accused and three of his associates presented documents of the properties and, on site inspection and verification of the documents, it came to light that the proposed accused was not in possession of any of the lands he represented to have sold in favour of the complainant and that the MOUs were entered into with the complainant only to cheat and defraud him. Since the terms of MOUs could not be fulfilled, a deed of cancellation dated 24.06.2008 was entered into between the parties whereby it was agreed by S.P.Velayutham to refund the advance sale consideration of Rs.171,11,00,000/-. Subsequently, S.P.Velayutham issued four cheques, for Rs.1.11, 5, 45 and 120 crores, dated 24.06.2008, 23.07.2008 and 23.12.2008 with Nos.595244, 595241, 595242 and 595243 drawn on Axix Bank, Madipakkam. On presentation, the first cheque for Rs.1.11 crores was honoured while the second one returned on the ground that the signature of the drawer was not legible and the other two cheques were dishonoured with the endorsement -payment stopped by the drawer-. The petitioner, through letter dated 09.01.2009, requested the proposed accused to issue fresh cheque for Rs.5 crores and make arrangements to honour the other two cheques for Rs.165 crores. Since such request fell to deaf ears, a legal notice dated 03.02.2009 came to be issued, calling upon the proposed accused to pay the sum of Rs.165 crores in respect of the two cheques dishonoured on 09.01.2009 within fifteen days from the date of the notice, failing which, to face legal proceedings. Since there was no response, a complaint, dated 14.02.2009, was preferred with the 2nd respondent against S.P.Velayutham and three others for having cheated the complainant and for surreptitiously retaining Rs.171 crores with them and hence, they are liable to prosecuted for various offences including the one punishable under Sections 406, 409, 420, 465, 477 and 120-B IPC. However, the 2nd respondent refused to entertain the complaint and did not even give acknowledgment for having received the complaint. Therefore, a complaint was lodged with first respondent on 05.03.2009. Also, for the cause of action arising under the provisions of the Negotiable Instruments Act, a complaint was preferred on 09.03.2009 and the same was taken on file by the Judicial Magistrate, Alandur, in C.C. No.108 of 2009. Another complaint, dated 23.03.2009, was forwarded to the first respondent/Commissioner of Police through Registered Post wherein a reference has been made to the complaints dated 14.02.2009 and 05.03.2009. Since no prompt action was ever endeavoured to be taken by the police authorities, the petitioner has come forward with the present petition before this Court.

(3.) - In the complaint also the role played by the son-in-law of S.P.Velayutham, a directly recruited IPS officer, the brother of S.P.Velayutham-s son-in-law, a Deputy Commissioner of Police at Chennai and close relative of S.P.Velayutham, a highly placed police official were also brought out (vide Document No.11 of the Typed set of Papers). Ultimately the same was not acted upon.- and in parallel, pointing out the following allegation in the complaint, dated 05.03.2009, preferred to R-1, to the effect, -We state that when we have approached the police authorities the said attempt had been continuously hampered by the relatives of the said S.P.Velayutham, who are in police service. We state that on 14.02.2009, when the local police was approached in the matter for registering a case against the said S.P.Velayutham & three others and to deal with them according to law, the only answer was that they cannot entertain the complaint since it involves huge sums invested on the properties and that the properties are situated outside the jurisdiction. The said local Police Station viz., Station House Officer viz., The Inspector of Police, Abhiramapuram Police Station did not even give acknowledgment for having received the complaint. We state that admittedly the said S.P.Velayutham & three others are backed by the top police officers of the Government of Tamil Nadu. ", submits that this is a peculiar case where all the allegations put forth against the proposed accused/intervener S.P.Velayutham are borne out by records that the accused entered into three MOUs with the complainant that, since the accused could not purchase the lands in favour of the complainant as per the agreement, deed of cancellation has been entered into between the parties, pursuant to which, for the advance amount received, cheques were issued, thus, it was promised that, by presentation of the cheques, the amounts will be settled as provided in the deed of cancellation that, thereafter, the accused failed to repay the money and exerted influence through the top ranking police officials to see that the petitioner is deprived of a fair inquiry at the hands of the local Police that is the reason why the first complaint lodged with the 2nd respondent could not be taken on file and since the first respondent also, even though was apprised of the extraordinary situation emerged in the case due to the influence exerted, did not take the matter with all seriousness and that, having left with no other alternative, the petitioner has preferred the present petition. It is further submitted that initiation of proceedings for dishonour of cheque under the provisions of the Negotiable Instruments Act has nothing to do with the criminal prosecution under the penal law, for, the present one relates to cheating, fraud, misrepresentation etc. which acts altogether different from the scope of the special enactment. One of the cheques viz., the one issued for Rs.5 crores was returned with an endorsement signature 'not legible'. The accused did not choose to reply for the statutory notice for dishonor of the two cheques for Rs.165 crores nor issued fresh cheque for Rs.5 crores. Unless a case is registered with all seriousness and investigation proceeds in a proper perspective, involvement of the other accused, who colluded with the proposed accused with an intention from the inception to defraud and cheat the petitioner, may not come to light. That is why at the first instance, complaint was lodged with R-2 and when he could not even acknowledge receipt of the complaint, with a fond hope that the top-most administrative head of the Police Agency at Chennai viz., Commissioner of Police, would impartially direct for an independent investigation being done by a competent officer, complaint was also preferred to him, but the manner in which the complaint of the petitioner was dealt with would show that, unfortunately, the first respondent also did not endeavor to set the investigation in motion as expected of him. 3-A. Learned Senior Counsel points out that the complaint to the 2nd respondent was given as early as on 14.02.2009 and to the first respondent on 05.03.2009, 2nd complaint was forwarded to the first respondent on 23.03.2009 which was acknowledged by R-1-s office on 25.03.2009 in the meantime, private complaint invoking the provisions of special enactment (NI Act) was filed on 09.03.2009 and the contemporaneous dates of filing of the complaints cannot be disputed. The present petition filed on 30.03.2009 came up for enquiry before this court on 31.03.2009 and on 01.04.2009 it was represented by the learned Government Advocate that the matter is at enquiry stage without having registered a case. On 03.04.2009, it was represented that the first respondent has forwarded the complaint to the Central Crime Branch, whereupon, a case has been registered by the Inspector of Police attached to CCB and investigation is on the track. According to the learned Senior Counsel, when serious allegations have been made against high ranking police officials, the first respondent should have applied his mind and deputed an equally ranking officer at least to conduct a preliminary enquiry into the allegations so as to come to a conclusion one way or the other. But unfortunately, he forwarded the complaint to the CCB culminating in investigation by an officer in the rank of Inspector of Police. Thus, it is ex facie apparent that the act of the first respondent in purposely neglecting to react properly to the seriousness of the allegations made, particularly when materials aspects are borne out by records, would only divulge the mala fide intention on his part. He importunately pleads that inasmuch as criminal prosecution is sought for against an accused, who is highly powerful since he happens to be a close relative of some of the top-level police officials of the State Government and who is wielding much influence thereby having the potential to stall and even cripple the investigation at the preliminary level, in the interests of justice, the task of investigation may be entrusted to CBI. 3-B. Learned Senior Counsel mainly relied on the case law reported in 1985(1) SCC 317 (State of W.B. v. Sampat Lal) wherein the requirement of -consent of the Government- as outlined in Section 6 of the Delhi Special Police Establishment Act, 1946 (in short -Act-) for exercising jurisdiction under Section 5 of that Act was discussed and submitted that in the present case, the plea of consent is not at all raised. He referred to the following observation made therein as to the independent power of the High Court/Supreme Court in ordering CBI investigation in deserving cases to uphold the interests of justice,-13. when a direction is given by the Court in an appropriate case, consent envisaged under Section 6 of the Act would not be a condition precedent to compliance with the Court-s direction. In our considered opinion, Section 6 of the Act does not apply when the Court gives a direction to the CBI to conduct an investigation and counsel for the parties rightly did not dispute this position.-3-C. Learned Senior Counsel cited the case law reported in AIR 1994 SC 1033 (Maniyeri Madhavan v. Sub Inspector of Police) wherein it has been held that the consent of the State Government as contemplated under Section 6 of the Act is not necessary before directing investigation by the CBI. 3-D. Learned Senior Counsel referred to the decision reported in 1995 (1) L.W. (Crl) 272 (Ramanathan v. State), wherein, a single Judge of this Court, having regard to the factual aspects involved therein, after observing," The non-registration of the case for eight months and wrong recording of the statement of S and the inaction by the Police Authorities in spite of several complaints, give rise to three irresistible inferences, viz.,(1) Police was desultory and lackadaisical(2) Lack of appreciation and the emergent need to get at the truth in spite of representation, Newspaper Publication, court's order, etc., and(3) Investigation not bona fide and aimed to shield officers", held that, normally, investigation should not be taken from the hands of the State police machinery, which is a statutory agency, but, due to certain lapses in conducting investigation, all that this Court could do, in the interests of instilling confidence in the machinery, meant for maintaining law and order, is to order investigation by the C.B.I. 4. Learned Government Advocate points out that the case was listed on 31.03.2009 again, it was taken up for enquiry on 01.04.2009 adjournment was sought to receive instructions from the first respondent and on 02.04.2009, when arguments were advanced by the learned senior counsel for the petitioner, it was replied by him that he would request the learned Advocate General to advance arguments on the question of law pertaining to the power of the High Court to transfer investigation to the CBI without the consent of the State Government. He submits that never a complaint was preferred with the 2nd respondent as stated by the petitioner. He further states that on 03.04.2009, Mr.Shanmugasundaram, Senior Counsel, appeared on behalf of the proposed accused and sought permission to intervene in the case and requested for adjournment of the matter on 06.04.2009. Learned Government Advocate submits that, the matter standing thus, he received further instructions and filed counter to the effect that investigation has been taken up by the Inspector of Police, CCB, after the complaint was forwarded to that Wing by R-1 and therefore, since the investigation is now onset and being pursued by an officer of the Special Branch, the same need not be disturbed. Learned Additional Public Prosecutor (Public Prosecutor-in-charge) also appeared on behalf of the respondents and made submission in the same lines and both of them repeatedly stressed that the Police Officers mentioned by the petitioner never interfered with the process at any stage and therefore, the prayer of the petitioner may be rejected. According to them, transfer of investigation to CBI could be ordered only if the court comes to an emphatic conclusion that the investigation conducted by the state investigating agency is improper. In the case on hand, the allegation against the police officers is flimsy and no rare and exceptional case is made out, warranting exercise of jurisdiction by this court to order transfer. Prima facie case having been made only as against S.P.Velayutham, merely because of the reason that some of his relatives happened to be top ranking police officials, investigation cannot be transferred without any basis. They submitted that a batch of petitions challenging the powers of the High Court ordering CBI inquiry without the consent of the state government concerned are pending decision by a Full Bench of the Hon-ble Apex Court and further, since investigation is being pursued now, the issue need not be gone into further and there is no need to transfer the investigation to CBI.5. Learned Senior Counsel for the intervener, requesting this Court to receive the submissions on behalf of the proposed accused as an intervener, though made an attempt to project the points elaborately by placing several case laws, ultimately conceded on the proposition that the proposed accused need not be heard at the time of investigation. However, he submitted that the alleged offence is said to have taken place within the territory of Tamil Nadu, under such circumstances, without the consent of the State Government, investigation of a case cannot be transferred to CBI. By relying on a judgment of the Supreme Court reported in 2008 (2) SCC 409 (Sakiri Vasu vs. State of U.P.), it is submitted that such exercise can be done only in rare and exceptional cases and merely because a party makes some allegations, transfer cannot be ordered as a matter of routine. Referring to the case law in Secretary v. Sahngoo Ram Arya (2002) 5 SCC 521, it is submitted that the High Court must reach a conclusion on the basis of pleadings and materials on record that a prima facie case is made out against a person and merely because a party made allegations against a person, CBI cannot be directed to investigate as to whether a person committed an offence, as alleged or not. In lines with the submission made by the learned Government Advocate and the Additional Public Prosecutor, adverting to the decision reported in 2007 (2) SCC (Cri) 100 (State of W.B. v. Committee For Protection of Democratic Rights), wherein, the Honourable Apex Court with reference to the question 'whether the court can order the CBI, an establishment created under the Delhi Special Police Establishment Act, 1946, to investigate a cognizable offence which is alleged to have taken place in a State without the consent of that State Government", learned Senior Counsel submits that since the consent aspect is referred to a larger Bench of the Apex Court, till the disposal of the case, transfer of the case cannot be effected.