RAGHU EXPORTS Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has filed this writ petition praying therein for issuance of a writ of mandamus directing respondent No. 2 to return/refund a sum of Rs. 1 crore recovered from the petitioner and also to return post dated cheques of Rs. 1.5 crores. It has been further prayed that respondent No. 2 be directed to return the record of the petitioner and supply a copy of Panchnama drawn during search and seizure by the department.

(2.) Learned counsel for the petitioner has submitted that there is no amount outstanding against the petitioner but still under duress and threat, the partners of the petitioner were forced to deposit the draft of Rs. 1 crore and post dated cheques of Rs. 1.5 crores. The said fact is disputed by the counsel for the respondents. He states that the said draft was deposited by the partners of the petitioner along with the cheques voluntarily, when the search and seizure was conducted by the department. It has been pointed out by him that the investigation is under way and the liability of the petitioner could go much more than the amount voluntarily deposited by the petitioner. He has further stated that the cheques of Rs. 1.5 crores were presented to the bank and the same have bounced. He contends that the prayer of the petitioner thus may not be granted. However, he has not disputed that as of date, there is no amount outstanding against the petitioner.

(3.) We have heard the learned counsel for the parties and unable to agree with the learned counsel for the respondents that the amount deposited by way of bank draft should not be ordered to be refunded although as of date there is no amount outstanding against the petitioner. Since the investigation is continuing and the adjudicating authority has not yet determined any amount as due which is payable by the petitioner. There is no justification for the department to retain the sum of Rs. 1 crore and the cheques of Rs. 1.5 crores. The respondent has no legal or moral right to retain the said amount in the absence of the demand raised. However, it will be open to the department to recover the same from the petitioner as and when the demand is created.