M/s.Rakindo Developers (P) Ltd v. The Commissioner of Police

For Petitioner : Mr.V.Padmanabhan, Sr. Counselfor Mr.S.Santhoshkumar.For R1 to R3 : Mr.Kumaresan, Addl. Public Prosecutor, and Mr.A.Saravanan, Govt. AdvocateFor R-4 : Mr.N.Chandrasekaran,Special P.P. for CBI Cases.For intervener : Mr.I.Subramanian, SeniorCounsel for Mr.M.Jeeva.- - - - -O R D E R The petitioner herein/defacto complainant, who claims to be aQuasi-Government Association of United Arab Emirates dealing withpurchase of vacant land, joint venture development and other alliedbusinesses, is said to have entered into an agreement with theproposed accused/seller by name S.P.Velayutham for purchase of landsin and and around Tamil Nadu and in that regard, made payments tothe said Velayutham to the tune of Rs.171 crores through cheques;but, neither lands were procured for the petitioner nor the moneyrepaid, resulted in preferring a complaint to the police havingjurisdiction as well as the Commissioner of Police. On the primeallegation that, in view of the influence and nexus the accused haswith some high-ranking police officials, the complaints whichdeserve immediate attention and action on the part of the police,could not be taken up even in the normal course, the presentpetition has been filed before this Court seeking to direct thefourth respondent/Central Bureau of Investigation (CBI) to receivethe petitioner’s complaint dated 14.02.2009 from the firstrespondent for registration of a case and proper investigationthereof or in the alternative to appoint a senior level officer inthe rank of Inspector General of Police to register and investigatethe case. 2. Facts of the case, as projected in the affidavitfiled in support of the petition, are narrated in brief for betterunderstanding. With reference to land deals between thepurchaser/petitioner and the proposed accused/seller, threeMemorandum of Understandings (MOUs) dated 18.12.2007, 23.01.2008 and23.05.2008 were entered into, whereupon, the seller received a totaladvance sale consideration of Rs.171,11,00,000/- (Rupees One Hundredand Seventy One Crore and eleven lakhs only) from the purchaser inthe following manner: A. Rs.20 crores paid by the purchaser with respect to MOUdated 18.12.2007 ie., https://hcservices.ecourts.gov.in/hcservices/ 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.030157;B. Rs.150 crores, by cheque dated 23.01.2008,No.000118, drawn on Kotak Mahindra Bank, as advanceconsideration as per MOU dated 23.01.2008; and C. Rs.1.11 crores, by cheque towards Advance SaleConsideration. Before receiving money, the proposed accused/intervener representedthat his son-in-law is a directly recruited IPS Officer serving asSuperintendent of Police at Nilgiris, his son-in-law's brother is aDeputy Commissioner of Police at Chennai and one of his closerelatives is an Inspector General of Police, Tamil Nadu; thus, withtheir assistance and backing, the land deals would be made viableand profitable without any impediment or difficulty. Since thedefacto complainant was in dire need of lands in and around TamilNadu, believing such representation, huge money as aforesaid wasgiven to S.P.Velayutham. The proposed accused and three of hisassociates presented documents of the properties and, on siteinspection and verification of the documents, it came to light thatthe proposed accused was not in possession of any of the lands herepresented to have sold in favour of the complainant and that theMOUs were entered into with the complainant only to cheat anddefraud him. Since the terms of MOUs could not be fulfilled, adeed of cancellation dated 24.06.2008 was entered into between theparties whereby it was agreed by S.P.Velayutham to refund theadvance sale consideration of Rs.171,11,00,000/-. Subsequently,S.P.Velayutham issued four cheques, for Rs.1.11, 5, 45 and 120crores, dated 24.06.2008, 23.07.2008 and 23.12.2008 with Nos.595244,595241, 595242 and 595243 drawn on Axix Bank, Madipakkam. Onpresentation, the first cheque for Rs.1.11 crores was honoured whilethe second one returned on the ground that the signature of thedrawer was not legible and the other two cheques were dishonouredwith the endorsement ‘payment stopped by the drawer’. Thepetitioner, through letter dated 09.01.2009, requested the proposedaccused to issue fresh cheque for Rs.5 crores and make arrangementsto honour the other two cheques for Rs.165 crores. Since suchrequest fell to deaf ears, a legal notice dated 03.02.2009 came tobe issued, calling upon the proposed accused to pay the sum ofRs.165 crores in respect of the two cheques dishonoured on09.01.2009 within fifteen days from the date of the notice, failingwhich, to face legal proceedings. Since there was no response, acomplaint, dated 14.02.2009, was preferred with the 2nd respondentagainst S.P.Velayutham and three others for having cheated thecomplainant and for surreptitiously retaining Rs.171 crores withthem and hence, they are liable to prosecuted for various offencesincluding the one punishable under Sections 406, 409, 420, 465, 477 https://hcservices.ecourts.gov.in/hcservices/ and 120-B IPC. However, the 2nd respondent refused to entertain thecomplaint and did not even give acknowledgment for having receivedthe complaint. Therefore, a complaint was lodged with firstrespondent on 05.03.2009. Also, for the cause of action arisingunder the provisions of the Negotiable Instruments Act, a complaintwas preferred on 09.03.2009 and the same was taken on file by theJudicial Magistrate, Alandur, in C.C. No.108 of 2009. Anothercomplaint, dated 23.03.2009, was forwarded to the firstrespondent/Commissioner of Police through Registered Post wherein areference has been made to the complaints dated 14.02.2009 and05.03.2009. Since no prompt action was ever endeavoured to be takenby the police authorities, the petitioner has come forward with thepresent petition before this Court. 3. Learned Senior Counsel for the petitioner, byadverting to the following portions from the affidavit filed insupport of the petition with reference to the allegations againstthe accused and the police officials, “ 4. The petitioner was approached byS.P.Velayutham, ….., promising and representing thatS.P.Velayutham has vast extents of landed properties in andaround the state of Tamil Nadu and has been doing businesseither as a real estate agent or as power of attorney holderor as agreement holder, besides representing that the son-in-law of S.P.Velayutham is Mr.A.G.Babu a directly recruitedIPS Officer and serving as the Superintendent of Police of aNilgiri district, while the brother of his son-in-law is theDeputy Commissioner of Police at Chennai and another closerelative is the Inspector General of Police in Tamil Naduand through their patronage and assistance all dealings inthe lands would be both viable and profitable without anyproblem. j. … Having thus been cheated by S.P.Velayuthamand his three associates with the active patronage,assistance, collusion and in conspiracy with son-in-law ofS.P.Velayutham, Mr.A.G.Babu a directly recruited IPSofficer, the brother of S.P.Velayutham’s Son-in-law, aDeputy Commissioner of Police at Chennai and close relativeof S.P.Velayutham, a high placed police official, who havealso played mediation roles in the cheating episodes ofS.P.Velayutham and his three associates and promised toreturn back the entire money by convincing S.P.Velayutham &his three associates. … 5. … In the complaint also the role played bythe son-in-law of S.P.Velayutham, a directly recruited IPSofficer, the brother of S.P.Velayutham’s son-in-law, aDeputy Commissioner of Police at Chennai and close relativeof S.P.Velayutham, a highly placed police official were also https://hcservices.ecourts.gov.in/hcservices/ brought out (vide Document No.11 of the Typed set ofPapers). Ultimately the same was not acted upon. “and in parallel, pointing out the following allegation in thecomplaint, dated 05.03.2009, preferred to R-1, to the effect, “ We state that when we have approached thepolice authorities the said attempt had been continuouslyhampered by the relatives of the said S.P.Velayutham, whoare in police service. We state that on 14.02.2009, whenthe local police was approached in the matter forregistering a case against the said S.P.Velayutham & threeothers and to deal with them according to law, the onlyanswer was that they cannot entertain the complaint since itinvolves huge sums invested on the properties and that theproperties are situated outside the jurisdiction. The saidlocal Police Station viz., Station House Officer viz., TheInspector of Police, Abhiramapuram Police Station did noteven give acknowledgment for having received the complaint.We state that admittedly the said S.P.Velayutham & threeothers are backed by the top police officers of theGovernment of Tamil Nadu.", submits that this is a peculiar case where all the allegations putforth against the proposed accused/intervener S.P.Velayutham areborne out by records; that the accused entered into three MOUs withthe complainant; that, since the accused could not purchase thelands in favour of the complainant as per the agreement, deed ofcancellation has been entered into between the parties, pursuant towhich, for the advance amount received, cheques were issued, thus,it was promised that, by presentation of the cheques, the amountswill be settled as provided in the deed of cancellation; that,thereafter, the accused failed to repay the money and exertedinfluence through the top ranking police officials to see that thepetitioner is deprived of a fair inquiry at the hands of the localPolice; that is the reason why the first complaint lodged with the2nd respondent could not be taken on file and since the firstrespondent also, even though was apprised of the extraordinarysituation emerged in the case due to the influence exerted, did nottake the matter with all seriousness; and that, having left with noother alternative, the petitioner has preferred the presentpetition. It is further submitted that initiation of proceedings fordishonour of cheque under the provisions of the NegotiableInstruments Act has nothing to do with the criminal prosecutionunder the penal law, for, the present one relates to cheating,fraud, misrepresentation etc. which acts altogether different fromthe scope of the special enactment. One of the cheques viz., the oneissued for Rs.5 crores was returned with an endorsement signature'not legible'. The accused did not choose to reply for thestatutory notice for dishonor of the two cheques for Rs.165 crores https://hcservices.ecourts.gov.in/hcservices/ nor issued fresh cheque for Rs.5 crores. Unless a case isregistered with all seriousness and investigation proceeds in aproper perspective, involvement of the other accused, who colludedwith the proposed accused with an intention from the inception todefraud and cheat the petitioner, may not come to light. That is whyat the first instance, complaint was lodged with R-2 and when hecould not even acknowledge receipt of the complaint, with a fondhope that the top-most administrative head of the Police Agency atChennai viz., Commissioner of Police, would impartially direct foran independent investigation being done by a competent officer,complaint was also preferred to him, but the manner in which thecomplaint of the petitioner was dealt with would show that,unfortunately, the first respondent also did not endeavor to set theinvestigation in motion as expected of him. 3-A. Learned Senior Counsel points out that the complaint tothe 2nd respondent was given as early as on 14.02.2009 and to thefirst respondent on 05.03.2009, 2nd complaint was forwarded to thefirst respondent on 23.03.2009 which was acknowledged by R-1’soffice on 25.03.2009 ; in the meantime, private complaint invokingthe provisions of special enactment (NI Act) was filed on09.03.2009; and the contemporaneous dates of filing of thecomplaints cannot be disputed. The present petition filed on30.03.2009 came up for enquiry before this court on 31.03.2009 andon 01.04.2009 it was represented by the learned Government Advocatethat the matter is at enquiry stage without having registered acase. On 03.04.2009, it was represented that the first respondenthas forwarded the complaint to the Central Crime Branch, whereupon,a case has been registered by the Inspector of Police attached toCCB and investigation is on the track. According to the learnedSenior Counsel, when serious allegations have been made against highranking police officials, the first respondent should have appliedhis mind and deputed an equally ranking officer at least to conducta preliminary enquiry into the allegations so as to come to aconclusion one way or the other. But unfortunately, he forwarded thecomplaint to the CCB culminating in investigation by an officer inthe rank of Inspector of Police. Thus, it is ex facie apparent thatthe act of the first respondent in purposely neglecting to reactproperly to the seriousness of the allegations made, particularlywhen materials aspects are borne out by records, would only divulgethe mala fide intention on his part. He importunately pleads thatinasmuch as criminal prosecution is sought for against an accused,who is highly powerful since he happens to be a close relative ofsome of the top-level police officials of the State Government andwho is wielding much influence thereby having the potential to stalland even cripple the investigation at the preliminary level, in theinterests of justice, the task of investigation may be entrusted toCBI. https://hcservices.ecourts.gov.in/hcservices/ 3-B. Learned Senior Counsel mainly relied on the case lawreported in 1985(1) SCC 317 (State of W.B. v. Sampat Lal) whereinthe requirement of ‘consent of the Government’ as outlined inSection 6 of the Delhi Special Police Establishment Act, 1946 (inshort ‘Act’) for exercising jurisdiction under Section 5 of that Actwas discussed and submitted that in the present case, the plea ofconsent is not at all raised. He referred to the followingobservation made therein as to the independent power of the HighCourt/Supreme Court in ordering CBI investigation in deserving casesto uphold the interests of justice, “ 13. ….. when a direction is given by theCourt in an appropriate case, consent envisaged underSection 6 of the Act would not be a condition precedentto compliance with the Court’s direction. In ourconsidered opinion, Section 6 of the Act does not applywhen the Court gives a direction to the CBI to conduct aninvestigation and counsel for the parties rightly did notdispute this position. …..” 3-C. Learned Senior Counsel cited the case law reported inAIR 1994 SC 1033 (Maniyeri Madhavan v. Sub Inspector of Police) wherein it has been held that the consent of the State Government ascontemplated under Section 6 of the Act is not necessary beforedirecting investigation by the CBI. 3-D. Learned Senior Counsel referred to the decisionreported in 1995 (1) L.W. (Crl) 272 (Ramanathan v. State), wherein,a single Judge of this Court, having regard to the factual aspectsinvolved therein, after observing," The non-registration of the case for eightmonths and wrong recording of the statement of S and theinaction by the Police Authorities in spite of severalcomplaints, give rise to three irresistible inferences,viz.,(1) Police was desultory and lackadaisical;(2) Lack of appreciation and the emergent need toget at the truth in spite of representation, NewspaperPublication, court's order, etc., and(3) Investigation not bona fide and aimed toshield officers",held that, normally, investigation should not be taken from thehands of the State police machinery, which is a statutory agency,but, due to certain lapses in conducting investigation, all thatthis Court could do, in the interests of instilling confidence inthe machinery, meant for maintaining law and order, is to orderinvestigation by the C.B.I. https://hcservices.ecourts.gov.in/hcservices/

4. Learned Government Advocate points out that the casewas listed on 31.03.2009; again, it was taken up for enquiry on01.04.2009; adjournment was sought to receive instructions from thefirst respondent; and on 02.04.2009, when arguments were advancedby the learned senior counsel for the petitioner, it was replied byhim that he would request the learned Advocate General to advancearguments on the question of law pertaining to the power of the HighCourt to transfer investigation to the CBI without the consent ofthe State Government. He submits that never a complaint waspreferred with the 2nd respondent as stated by the petitioner. Hefurther states that on 03.04.2009, Mr.Shanmugasundaram, SeniorCounsel, appeared on behalf of the proposed accused and soughtpermission to intervene in the case and requested for adjournment ofthe matter on 06.04.2009. Learned Government Advocate submits that,the matter standing thus, he received further instructions and filedcounter to the effect that investigation has been taken up by theInspector of Police, CCB, after the complaint was forwarded to thatWing by R-1 and therefore, since the investigation is now onset andbeing pursued by an officer of the Special Branch, the same need notbe disturbed. Learned Additional Public Prosecutor (PublicProsecutor-in-charge) also appeared on behalf of the respondents andmade submission in the same lines and both of them repeatedlystressed that the Police Officers mentioned by the petitioner neverinterfered with the process at any stage and therefore, the prayerof the petitioner may be rejected. According to them, transfer ofinvestigation to CBI could be ordered only if the court comes to anemphatic conclusion that the investigation conducted by the stateinvestigating agency is improper. In the case on hand, theallegation against the police officers is flimsy and no rare andexceptional case is made out, warranting exercise of jurisdiction bythis court to order transfer. Prima facie case having been made onlyas against S.P.Velayutham, merely because of the reason that some ofhis relatives happened to be top ranking police officials,investigation cannot be transferred without any basis. Theysubmitted that a batch of petitions challenging the powers of theHigh Court ordering CBI inquiry without the consent of the stategovernment concerned are pending decision by a Full Bench of theHon’ble Apex Court and further, since investigation is being pursuednow, the issue need not be gone into further and there is no need totransfer the investigation to CBI. 5. Learned Senior Counsel for the intervener, requestingthis Court to receive the submissions on behalf of the proposedaccused as an intervener, though made an attempt to project thepoints elaborately by placing several case laws, ultimately concededon the proposition that the proposed accused need not be heard atthe time of investigation. However, he submitted that the alleged https://hcservices.ecourts.gov.in/hcservices/ offence is said to have taken place within the territory of TamilNadu, under such circumstances, without the consent of the StateGovernment, investigation of a case cannot be transferred to CBI. By relying on a judgment of the Supreme Court reported in2008 (2) SCC 409 (Sakiri Vasu vs. State of U.P.), it is submittedthat such exercise can be done only in rare and exceptional casesand merely because a party makes some allegations, transfer cannotbe ordered as a matter of routine. Referring to the case law inSecretary v. Sahngoo Ram Arya (2002) 5 SCC 521, it is submitted thatthe High Court must reach a conclusion on the basis of pleadings andmaterials on record that a prima facie case is made out against aperson and merely because a party made allegations against a person,CBI cannot be directed to investigate as to whether a personcommitted an offence, as alleged or not. In lines with thesubmission made by the learned Government Advocate and theAdditional Public Prosecutor, adverting to the decision reported in2007 (2) SCC (Cri) 100 (State of W.B. v. Committee For Protection ofDemocratic Rights), wherein, the Hon'ble Apex Court with referenceto the question 'whether the court can order the CBI, anestablishment created under the Delhi Special Police EstablishmentAct, 1946, to investigate a cognizable offence which is alleged tohave taken place in a State without the consent of that StateGovernment", learned Senior Counsel submits that since the consentaspect is referred to a larger Bench of the Apex Court, till thedisposal of the case, transfer of the case cannot be effected. 6. I have meticulously considered the rival submissions madeon either side with reference to the materials available on recordand the circumstances involved. The only point that arises for consideration is as towhether, in the given situation and circumstances involved, it isabsolutely necessary to transfer the investigation to CBI.7. Before proceeding to the relevant question, it is of muchrelevance to deal with the ancillary issue viz., whether referenceof a question of law, having some relevance to the issue in hand andof course, arising in a case having its peculiar facts andcircumstance, to a larger Bench by the Supreme Court would be adeterrent to decide on the question involved before the High Courtparticularly when the respondents/R-1 to R-3, who anxiously, withall seriousness, represented to argue the legal aspects in the lightof the judgment of the Apex Court by which reference was made andsought an adjournment for appearance of the Advocate General beforethis Court but later, turned aside to represent obstinately that thematter may be closed since a case has been registered. The Statedid not even choose to project their arguments with reference to theactual and legal issues and also, the submissions of the learnedSenior Counsel for the petitioner did not touch the brink of consentaspect and he reiterated, in the light of the decisions of the Apex https://hcservices.ecourts.gov.in/hcservices/ Court, that this Court has ample powers to pass appropriate ordersto avoid failure of justice. It is pertinent here to refer to thefollowing passages from the decision of the Apex Court in CentralBureau of Investigation, Jaipur v. State of Rajasthan ((2001) 3 SCC333), " 13. Section 5 of the Delhi Act enables theCentral Government to extend the powers andjurisdiction of members of the Delhi PoliceEstablishment to any area in a State. Section 6 of theDelhi Act says that:“6. Nothing contained in Section 5shall be deemed to enable any member of theDelhi Special Police Establishment to exercisepowers and jurisdiction in any area in a State,not being a Union Territory or railway area,without the consent of the Government of thatState.” A contention was made before us that when theState Government gives consent for CBI to investigateany offence within the area of the State it would bepermissible for the Magistrate to direct the officer ofCBI to conduct such investigation. What is envisaged inSections 5 and 6 of the Delhi Act is not one ofconferring power on a Magistrate to order CBI toconduct investigation in exercise of Section 156(3) ofthe Code. 14. True, powers of the High Court underArticle 226 of the Constitution and of the SupremeCourt under Article 32 or Article 142(1) of theConstitution can be invoked, though sparingly, forgiving such direction to CBI to investigate in certaincases, (vide Kashmeri Devi v. Delhi Admn.3 and Maniyeri Madhavan v. Sub-Inspector of Police4). A two-Judge Bench of this Court has by an order dated 10-3-1989, referred the question whether the High Court canorder CBI to investigate a cognizable offence committedwithin a State without the consent of that StateGovernment or without any notification or order havingbeen issued in that behalf under Section 6 of the DelhiAct.15. In Mohd. Anis v. Union of India5 Ahmadi, J.(as his Lordship then was) has observed thus: (SCCpp.148-49, para 6)“6. True it is, that a Division Bench of thisCourt made an order on 10-3-1989 referring the question https://hcservices.ecourts.gov.in/hcservices/ whether a court can order CBI, an establishment underthe Delhi Special Police Establishment Act, toinvestigate a cognizable offence committed within aState without the consent of that State Government orwithout any notification or order having been issued inthat behalf. In our view, merely because the issue isreferred to a larger Bench everything does not grind toa halt. The reference to the expression ‘court’ in thatorder cannot in the context mean the Apex Court for thereason that the Apex Court has been conferredextraordinary powers by Article 142(1) of theConstitution so that it can do complete justice in anycause or matter pending before it.” (emphasis supplied) Thus, there is no embargo for this Court to proceed to consider theprayer with reference to the circumstances involved and variousaspects adverted to through pleadings and typed set of papers.8. One another allied aspect to be dealt with is the locusstandi of the proposed accused to participate in the proceedings atthis stage. The Supreme Court, in AIR 1993 SC 1082 (Union of Indiavs. W.N.Chadha), having regard to the submission made by AdditionalSolicitor General therein with regard to the rule of audi alterampartem, after referring to the following observation of theAllahabad High Court viz.," Thus, it has been recognised by Judges ofundoubted eminence that a decision on substantiverights of parties is one thing and a mere decisionthat another body investigate and decide on thosesubstantive rights is quite another, and theprinciple of hearing is not applicable to the latterclass of cases",ruled thus, " 92. More so, the accused has no right to have anysay as regards the manner and method of investigation.Save under certain exceptions under the entire schemeof the Code, the accused has no participation as amatter of right during the course of the investigationof a case instituted on a police report till theinvestigation culminates in filing of a final reportunder Section 173(2) of the Code or in a proceedinginstituted otherwise than on a police report till theprocess is issued under Section 204 of the Code, as thecase may be. Even in cases where cognizance of anoffence is taken on a complaint notwithstanding thesaid offence is triable by a Magistrate or triableexclusively by the Court of Sessions, the accused hasno right to have participation till the process is https://hcservices.ecourts.gov.in/hcservices/ issued. In case the issue of process is postponed ascontemplated under Section 202 of the Code, the accusedmay attend the subsequent inquiry but cannotparticipate. There are various judicial pronouncementsto this effect but we feel that it is not necessary torecapitulate those decisions. At the same time, wewould like to point out that there are certainprovisions under the Code empowering the Magistrate togive an opportunity of being heard under certainspecified circumstances. "9. Free and fair investigation is the Fundamental right of acitizen under Articles 14 and 21 of the Constitution and courts ie.,Supreme Court and High Courts, can entertain petitions for CBIinvestigation only in case of violation of Fundamental rights of acitizen. The only requirement for the court while weighing theprayer is to examine and analyse the case as to whether it is a rareand exceptional one where such relief should be granted in theinterests of justice and to avoid resultant grave injustice in theevent of denial of the prayer.10. In the case on hand, the sequence of events beforefiling of the present petition and immediately subsequent theretowould throw light to discern the actual state of affairs for betterassessment. It is alleged that initially, a complaint dated 14.02.2009,was made to R-2 and it was not even acknowledged even thoughpresented in person since the superior officer (Deputy Commissionerof Police) of the Station House Officer happened to be a closerelative of the main accused. The said superior officer could notbe approached; therefore, a complaint was forwarded to theCommissioner of Police on 05.03.2009. In the meantime, thecomplainant experienced threat and harassment at the hands of thepolice. Simultaneously, the complainant preferred a complaintagainst the main accused under the provisions of the NegotiableInstruments Act before the Judicial Magistrate, Alandur. Commissionof the offence by the main accused in collusion with other accusedhas been mentioned even in the Notice issued to the main accused.Initiation of prosecution under the special Act does not take awaythe rights of the complainant to initiate criminal action for theoffences punishable under penal law. Since collection of materials,inclusion of other accused and investigation by a competent agencyare very much required, the complainant forwarded another complaintdated 23.03.2009 to R-1 through registered post wherein the earliercomplaints as well as the proceedings under Section-138 of the Acthave been mentioned. Admittedly, such complaint has been receivedby the Commissioner of Police on 25.03.2009, however, a case was notregistered. Having exhausted all the available modes, thepetitioner has preferred the present petition on 30.03.2009. https://hcservices.ecourts.gov.in/hcservices/ The matter was taken up for enquiry by this Court on31.3.2009 and stood adjourned to 01.04.2009 on which date, argumentswere advanced by the counsel for the petitioner and the learnedGovernment Advocate represented that the matter may be adjournedenabling him to bring the Advocate General for making submissions onlegal issues. Of course, though the matter was directed to beadjourned on the next date of hearing at the instance of theintervener, it was projected as if that the State is very muchanxious to seriously argue the matter by meeting the points on legalissues. But, on 06.04.2009, by filing a counter affidavit, it wasrepresented on behalf of the State that the first respondentforwarded the case to the Deputy Commissioner, CCB, on whosedirection, a case has been registered by the Inspector of Policeattached to CCB and he is pursuing the investigation; hence, thematter may be closed. In this particular matter, this Court could discern thecliquish attitude of the state police agency in being heedless andmoving the process at a snail space before filing of this petitionand acting with an extraordinary swiftness and vigor once the matteris taken up for enquiry here. Seemingly, the Investigating Officerwho was supervised by the Deputy Commissioner of Police, CCB, isprojected in the counter to have ceaselessly pursued theinvestigation for two days ie., 04.04.2009 and 05.04.2009 by runningbehind the complainant whose office remained closed on those twodays on account of Saturday and Sunday and ultimately it wasendeavored to project as if the petitioner is not available and thepolice is making arduous efforts to secure him to procure hisstatement. The counter speaks a lot about the pointless endeavortaken to blame the complainant and to patch up the unusual inertnesson the part of the police. Undoubtedly, the circumstances clearlypoint out the bias with which the state police, from subordinatelevel to administrative head, behaved with partisan attitude toprotect and veil some of their officers from being exposed to legalaction. The repeated admonition of the Apex Court that, soon afterreceipt of a complaint which constitute a cognizable offence, it isthe bounden duty of the police office to register case andinvestigate, is conveniently given a go-bye in the case.11. Another vital aspect to be pointed out is that, duringthe course of arguments on 01.04.2009, it was stated by the learnedGovernment Advocate that an FIR need not be registered and apetition inquiry is pending. Conducting petition enquiry in matterspertaining to cognizable offences of serious nature has beendeprecated by the Apex Court on very many occasions. If really thefirst respondent had applied his mind without any bias, in allprobability, having regard to the allegation made against theofficers one of whom is a Deputy Commissioner of Police workingunder him, he would have himself conducted a preliminary enquirybefore even passing on the task to be done by his subordinates. It https://hcservices.ecourts.gov.in/hcservices/ is agonizing to note that the Deputy Commissioner of Police, CCB,without even conducting an independent enquiry by herself,mechanically forwarded the same to be investigated by an Inspectorof Police. I am of the considered view that if the investigation isallowed to continue in this fashion, certainly, the present Officer,who has to investigate into the allegations against his superiorofficers, will come to an erroneous conclusion as if it is a matterof civil nature, for, it glaringly appears, only with suchintention, the F.I.R. has been registered.It must also be pointed out that, on a perusal of thecomplaint, it appears that the transaction is borne out by records.The accused S.P.Velayutham has received huge money after enteringinto MOUs and reference has been made about those MOUs in thecomplaint. Since the terms of the agreement could not be carriedout, a deed of cancellation has been executed, whereby, it wasagreed that the proposed accused having received the money throughcheques would return the same in the same manner. Curiously, chequefor Rs.5 crores was returned on the ground 'signature not legible'which clearly spell out the dishonest intention prima facie on thepart of the accused. All the cheques were presented for collectiononly after duly informing the accused. The statutory notice issuedunder the provisions of the Special Act did not evoke any reply.Only under such circumstances, complaints came to be made before thepolice and when it transpired that the police would never proceed inthe right direction with the conscience and vigor as expected fromthem, having left with no other option, the petitioner hasapproached this Court invoking its jurisdiction under Section 482 ofthe Code. In the present case, the procedure adumbrated underSection 36 and 154 (3) has been strictly adhered to. The privatecomplaint preferred under Section 200 Cr.P.C. in respect of anoffence punishable under Section 138 of the Act was only against themain accused viz., S.P.Velayutham, whereas, the criminal prosecutionnow sought to be launched for alleged offences punishable under thePenal Code, is with a view to bring the main accused, his associatesand his veiled patrons in the Police Department before justice.Thus, I have no hesitation to conclude that prima facie, theoffences alleged are made out. 12. Though the proposed accused do not have locus standi forgetting impleaded at the stage of investigation, efforts were madeby engaging senior counsels to convince this court that theinvestigation should take its own course and that there is nospecial case made out to order investigation by CBI. I canunderstand such a plea by the accused, but, it is unfortunate thatsuch a submission has been made by the GovernmentAdvocate/Additional Public Prosecutor, for, on instructions from theState, he should have fairly represented that, in view of theserious allegations made and the same having been borne out by https://hcservices.ecourts.gov.in/hcservices/ records, the investigation would be conducted by an officer notbelow the rank of Inspector General of Police; on the contrary, avague and futile attempt has been made to project that the presentcase would not come under the purview of rare and exceptional case.I am of the view that this is a classic case where one can see thereverse activities on the part of police in going behind thecomplainant instead of apprehending the main accused, his associatesand colluding patrons/relatives. Had there been timely action onthe part of the police, by this time, they could have collectedmaterials from the accused as well as through independent sources.13. No doubt, CBI is an Establishment created under theDelhi Special Police Establishment Act, 1946 and the general rule isthat investigation must be entrusted with the investigating agencywithin the local jurisdiction. If investigation has been taken upby the local agency of a particular state, it is improper to snatchaway the task from their hands without even informing them thereasons for such exercise. But, is there any embargo on the SupremeCourt or the High Court in transferring the investigation to aspecial agency when it is established with the available materialsthat in a given case, there is a total failure on the part of thestate police in impartially proceeding with the investigation asexpected of them and thereby, a great injustice would result to thecomplainant; the answer would be 'no', for the court has ample powerto order so, to avoid injustice provided such power is exercisedsparingly and only in deserving cases. The reluctance and hesitationon the part of R-1 translates a clear meaning that if theinvestigation is allowed to be handled by the State Machinery, itwill undoubtedly end in grave injustice to the complainant. That iswhy the Supreme Court has held that in the event of the High courtcoming to a conclusion that it is a fit case for transfer of theinvestigation, consent from the State Government is not required atall. In the case on hand, bias having been attributed to themachinery of the State Government, it is the Court which alone canassess the matter with regard to various aspects and factors asreferred to above and decide whether a direction needs to be issued.14. On scrutinizing the contemporaneous materials producedby way of pleadings and typed set of papers by the petitioner, nothaving been controverted by the learned senior counsel for the mainaccused/intervener, dishonest intention is glaringly apparent on theface of the records against the main accused, his associates andsome high ranking police officers of IPS cadre. The reluctance andhesitance on the part of the first respondent, registration of acase soon after the matter is taken up for inquiry by this court andapparent influence of the main accused in crippling the process ofinvestigation due to his relationship with the police officersreferred to, would unerringly lead to an irresistible conclusionthat the state police have sufficiently protected the IPS officers https://hcservices.ecourts.gov.in/hcservices/ who are closely related to the main accused. Taking note of thefact that even after registration of the case, the police could noteven knock at the doors of the main accused, one can conclude thatthe main accused is still controlling the affairs through hisrelatives and patrons who are in power. In view of the compellingcircumstances making out this case a rare and exceptional matter totransfer the investigation to the CBI, this court directs the firstrespondent to forthwith transmit the papers/records, if any, pendingwith him or CCB, to the Joint Director, CBI, Chennai. Since hugemoney is involved and allegations are very serious in nature, theDirector, CBI, New Delhi, is directed to depute an officer not belowthe rank of Inspector General of Police to conduct preliminaryenquiry and thereafter, the task may be entrusted with an officernot below the rank of Superintendent of Police. The CBI should takeinto account the serious allegations made against the controversialpolice officers of the State and proceed strictly in a properperspective, for, none is above law and if the theory of influenceis allowed to rule over the police administration, then injusticewould be rampant defeating the rule of law, sometimes even resultingin deprivation of judicial remedies to the victimized persons. TheRegistry, High Court, Madras, is hereby directed to forthwith(a) despatch a copy of this Order to theDirector, CBI, New Delhi, through EMS/Speed Post; and (b) forward the Case Diary File (running to 81pages) produced before this Court on 08.04.2009 pertainingto X.Cr. No.119 of 2009 on the file of Inspector ofPolice, CCB, Egmore, Chennai, along with a copy of thisorder to the office of the Joint Director, CBI, Chennai,in a sealed cover through a Special Messenger. It is further directed that the CBI shall endeavor to conclude theinvestigation as expeditiously as possible.15. Petition is ordered accordingly. Connected MiscellaneousPetition is closed.JI.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Additional Director, CBI, Chennai.2. The Commissioner of Police, Egmore, Chennai 600 008.3. The Inspector of Police, E4 Abhiramapuram PS, Chennai.4. Addl. Director General of Police, CB CID, Chennai.5. The Joint Director,CBI, Shastri Bhavan, Chennai (with case Diary sile, Cr.No.119/09)6. The Director, CBI, New Delhi.Copy to:-The Registrar (General),High Court, Chennai 104.+ 1 cc to Mr. S. Santhosh Kumar, Advocate SR No.13187+ 1 cc to the Public Prosecutor, SR No.13212GV(CO)SR/9.4.2009 Order in Crl.O.P. No.5099/2009