Dismissed

Enforcement Directorate Government of India, v. M. Kishan Rao

Telangana HC20 Oct 2009CRLRC/253/2009

Case brief

AI extract

What is this about?

In this criminal revision, the Enforcement Directorate sought to summon documents from a civil court under Section 91 Cr.P.C. The Special Judge dismissed the application citing laches. The High Court found no bona fide intent due to the seven-year delay and lack of evidence regarding the rejection of prior certified copy applications, dismissing the revision.

What did the court decide?

The Criminal Revision Case was dismissed and the impugned order of the Special Judge was affirmed.

Enforcement Directorate Government of India, Vs M. Kishan Rao — Corruption | Telangana HC (2009)

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THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

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Criminal Revision Case No.253 of 2009

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Dated:20th October, 2009

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Between:

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Enforcement Directorate, Government of India, Rep. by its Assistant Director, Hyderabad.

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…Petitioner/Complainant

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and

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1.M.Kishan Rao & Ors.

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…Respondents

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THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

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Criminal Revision Case No.253 of 2009

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ORDER:

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Aggrieved by the order dated 11.12.2008 passed in Crl.M.P.No.1727 of 2008 in C.C.No.205 of 2002 on the file of the Special Judge for Economic Offences-cum-VIII Additional Metropolitan Sessions Judge, Hyderabad, the complainant has filed this Criminal Revision Case under Sections 397 and 401 Cr.P.C.

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2. Background facts, in a nutshell, leading to filing of this revision by the complainant are:-

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a) The petitioner filed a complaint against the respondents 1 and 2 herein for contraventions of the provisions of Sections 8(1), 9(1) (a) and 14 of the Foreign Exchange Regulation Act, 1973 (for short, ‘the Act’). The complainant examined 3 witnesses apart from marking 27 documents on its behalf to substantiate the accusations levelled against the respondents 1 to 2/accused. When the case stood posted for examination of the accused under Section 313 Cr.P.C., the complainant filed Crl.M.P.No.487 of 2006 under Section 166-A Cr.P.C. with a prayer to issue a letter of request to the Competent Authority for investigation in U.K., British Islands, Irelands and Switzerland, to collect evidence. The said application ended in dismissal on the ground of laches. The complainant carried the matter to this Court unsuccessfully. Thereafter, the complainant filed Crl.M.P.No.1727 of 2008 under Section 91 Cr.P.C. to summon the documents from the Chief Judge, City Civil Court, Hyderabad. The documents sought to be summoned from the Chief Judge, City Civil Court, Hyderabad, are:

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1. Dt.26-12-1992 – Incorporation Certificate of Spectrum Power Generation Ltd.

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2. Dt.15-01-1995 – Office copy of Fax Message.

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3. Dt. 06-02-1995 – Payment transaction details.

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4. Dt.06-02-1995 – Payment transaction details.

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5. Dt.14-02-1995 – Bank Certificate No.156768.

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6. Dt.16-02-1995 – Bank Certificate No.156769.

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7. Dt.17.02.1995 – Bank Certificate No.152770.

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8. Dt.17.02.1995 – Bank Certificate No.152771.

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9. Dt.22-02-1995 – Bank Certificate No.152772.

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10. Dt.14.03.1995 – Bank Certificate No.152794.

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11. Dt.14-03-1995 – Statement of Items 6 to 11 above.

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12. Dt.26-06-1997 – Letter by NRI Investors along with enclosure.

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13. Dt.12-04-1999 – C.C. of complaint No.24/99 in Spl. Judge for Economic Offences Court, Hyderabad along with summons.

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14. Dt.29-03-1999 – Legal notice office copy.

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15. Dt.13-04-1999 – Reply Notice.

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16. Dt.30-12-1998 – Guarantee to the tune of Rs.503 crores.

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17. Dt.13-11-1989 – U.S. Government Insolvency Proceedings.

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18. Dt.29-04-1994 – I.D.B.I. Sanction letter.

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It is stated in the petition filed under Section 91 Cr.P.C. that the petitioner-complainant moved an application for Certified Copy of the plaint and other documents, but the learned III Addl. Chief Judge disposed of the application directing the petitioner to move an application before the concerned Court. Para.4 of the petition reads as hereunder:

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“4. The petitioner submits that the above said documents are material documents and produced by none other than the accused in their support in civil case and no prejudice would cause to either case. In the above said context the petitioner left with no other option except to approach this Honourable court by filing this petition in the interest of justice. The petitioner submits that this Honourable court may be pleased to summon the above mentioned documents from the court of the Honourable Chief Judge, City Civil Court, Hyderabad.”

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b) The respondents 1 and 2/accused filed counter resisting the

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application filed by the complainant under Section 91 Cr.P.C. It is stated in the counter that the application filed by the complainant is hopelessly at a belated stage. The complaint was filed on 30.05.2002. PW.1 was examined on 02.09.2002, PW.2 was examined on 25.09.2002 and PW.3 was examined on 29.10.2002 and thereafter, the matter stood posted for examination of accused under Section 313 Cr.P.C. Therefore, summoning the material at the belated stage causes prejudice to the defence of the respondents/accused.

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c) The learned Special Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, proceeded to dismiss the application on the ground that the petitioner filed the application at a belated stage and that the petitioner failed to substantiate its plea of approaching III Additional Chief Judge, City Civil Court, Hyderabad for grant of Certified Copies and rejection of the said application. For better appreciation, I may refer relevant portion of the order, which reads as hereunder:

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“A perusal of the record shows that the Enforcement Directorate, Government of India is the Complainant, filed the complaint against the Respondents for the offence punishable under Section 56 of Foreign Exchange Regulation Act, 1973. On behalf of the petitioner, PWs.1 to 3 were examined and Exs.P1 to P.27 were marked. At the stage of Section 313 Cr.P.C. examination, petitioner filed Crl.M.P.No.487/06 under Section 166-A of Cr.P.C. seeking letter of request to the Competent Authority for the investigation in U.K. British Islands, Irelands and Switzerland. This court dismissed the said petition on 13.6.2006. Aggrieved by the order of this court petitioner filed Crl. Revision No.1467/06 before the Hon’ble High Court and same was dismissed on 25.8.2008. During the pendency of the Criminal Revision case, stay was in operation. After dismissal of the Criminal Revision case by the Hon’ble High Court, petitioner filed this petition for summoning the documents filed by 1^st respondent in O.S.No.239/99 on the file of the Chief Judge, City Civil Court, Hyderabad, on the ground that documents filed by the Respondents are material documents and further III Addl. Chief Judge, Hyderabad,

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dispose of the copy application with a direction to the Petitioner to move an application before this Court as such the petitioner filed this present petition under Section 91 of Cr.P.C. To substantiate the petitioner’s claim, the return copy of application with the endorsement of III Addl. Chief Judge, City Civil Court, Hyderabad is not filed. Further the Petitioner filed one copy application B.No.28009/08, on 11.11.2008 and the same was returned to the copying section. But the petitioner neither represented the copy application nor filed any order rejecting their copy application. Petitioner during the pendency of the case before the Hon’ble High Court has not taken any steps for taking the certified copy of the said documents filed in O.S.No.239/99. Admittedly, the complaint filed in the year 2002 and evidence of the prosecution is closed in the year 2002 and O.S.No.239/99 is pending before the Chief Judge, City Civil Court, Hyderabad when the complaint is filed before this court by the petitioner. The Department could have taken steps to take the documents from the respondent himself. When this court insisted the Public Prosecutor to file the order of the III Addl. Chief Judge, City Civil Court, Hyderabad, but same was not filed to show the bona fide of the Petitioner and further stated that record has to be traced out which has not available in the civil court. The present application no doubt filed at a belated stage from 2002 to 2006, when the matter was pending before this court even at the time of filing of Crl.M.P.No.487/06 the documents are available in the civil court which shows that the petitioner has not filed this application bonafidely. Therefore, petition is dismissed.”

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Assailing the order of dismissal of the petition filed under Section 91 Cr.P.C, the petitioner/complainant approached this Court by filing this revision under Sections 397 and 401 Cr.P.C.

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3. Heard learned Special Public Prosecutor appearing for the petitioner/complainant and learned counsel appearing for the respondents 1 and 2/accused.

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4. Learned Special Public Prosecutor appearing for the petitioner/complainant submits that the documents sought for from the City Civil Court, Hyderabad, are essential to substantiate the guilt of

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the respondents 1 and 2/accused, with which they stood charged.

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5. Learned counsel appearing for the respondents 1 and 2/accused submits that the petitioner/complainant has not placed on record any material to show that it applied for the certified copy of the documents, which are sought to be summoned and its application for the same has been negatived by III Additional Chief Judge, City Civil Court, Hyderabad.

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6. The Special Judge dismissed the application filed by the petitioner/complainant on the ground that the petitioner failed to place on record any material to show that the application filed for securing certified copies of the documents has been dismissed by the learned III Addl. Chief Judge, City Civil Court, Hyderabad. The complaint is of the year 2002. PWs.1 to 3 came to be examined in the year 2002 itself. Seven years have been elapsed as on this day. No plausible explanation has been given by the complainant for not getting the copies of the documents, which are stated to have been filed in the civil Court. There is no material placed on record to show that the application filed by the petitioner/complainant seeking certified copies of the documents has been rejected. The learned Special Judge considered the matter in right perspective and proceeded to dismiss the application filed by the petitioner/complainant under Section 91 Cr.P.C. I do not see any illegality or irregularity in the order impugned in the revision warranting interference of this Court in exercise of powers under Sections 397 and 401 Cr.P.C.

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7. Accordingly, the Criminal Revision Case is dismissed.

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Date:20^th October, 2009. cs

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______________________ B.SESHASAYANA REDDY, J.

Enforcement Directorate Government of India, v. M. Kishan Rao

Case brief

What is this about?

What did the court decide?

Enforcement Directorate Government of India, v. M. Kishan Rao

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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