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2012 DIGILAW 970 (JHR)

Binod Kumar Singh v. State of Jharkhand

2012-07-13

JAYA ROY

body2012
JUDGMENT Heard the counsel for the petitioner and the counsel for the State and the counsel appearing for the Opposite Party No.2. 2. The petitioner is an accused in a case registered under Sections 406, 420, 467, 468, 471, and 120B of the I.P.C., pending in the court of Chief Judicial Magistrate, Dhanbad. 3. The prosecution case in brief is that the complainant (Chief Manager, Allahabad Bank, Park Market, Hirapur, Branch, Dhanbad) -the opposite party No.2 has filed a complaint case in the court of C.J.M., Dhanbad, alleging therein that the informant is presently the Chief Manager of Allahabad Bank, Park Market, Hirapur, Branch, Dhanbad and accused No.2 Shiv Dutta Mishra on 19th February 2004 took house loan of Rs.8,70,000/-from the said Branch in connivance with the petitioner. It is alleged that the said accused No.2 and the general power of attorney holder of the M/s Shankaran Construction Company (the petitioner) and he is also having registered power of attorney from the land holder Smt. Pushpa Singh executed an agreement to purchase one Flat i.e. Flat No.1 on the ground Floor in the said Apartment on the strength of the said agreement accused No.2 Shibdutt Mishra took house lone of Rs.8,70,000/-from the said Bank with respect of purchasing the said Flat No.1 in the Apartment. It is alleged that the accused No.2 used the aforesaid entire loan amount for purchasing the Flat but did not pay monthly instalment of Rs.7382/-being loan Account No.7842. The Loan account became irregular as such informant served a notice under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002. But the loanee wilfully did not deposit the loan amount in the Bank then the informant through local newspaper made an advertisement to sell the said flat. 4. It is further alleged that the bank has came to know that the petitioner with the loanee accused No.2, executed a registered deed No.643 dated 28.01.2006 in the registry office, Dhanbad in respect of the said flat and in this way accused persons in connivance with each other, took the loan from the said bank but without giving intimation to the bank, sold the said Flat No.1 to accused No.2 and did not pledge the said registered deed in the Bank rather by mortgaging the said flat again, took loan from the another bank i.e. Syndicate Bank. It is further alleged that both the accused by duping the Allahabad Bank, Park Market, Hirapur Branch, Dhanbad and thereafter for the same flat No.1, took loan twice and presently sum of Rs.12,31,636/-is due to the Allahabad Bank (the complainant). 5. Counsel for the petitioner has submitted that from the allegation it is clear that the accused no.2 namely Shiv Dutt Mishra dishonestly and fraudulently took the loan from the Allahabad Bank and as purchaser of the said flat did not repay the debt of the Bank and thereafter again took the loan from the Syndicate Bank on the basis of the same property, therefore, the present petitioner is not at all liable for commission of any offence, at best, a case under Section 422 of the I.P.C. is made which is bailable in nature. It is submitted that the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002, which has been enacted to regulate Securitisation and Reconstruction of Financial Assets and enforcement of Security Interest and for matter connected therewith or incidental thereto. The informant Bank already took the service of the said Act against the said Flat as well as against the creditors for contravention of the provisions of the said Act is U/S 29 which is bailable one and when there is special Act, the Informant cannot choose General Act i.e. Section of the Indian Penal Code and when the offence under this Act has already been committed by the Company then the officer-in-charge of the company can be prosecuted U/S 29 of the said Act. It further contended that the petitioner is the power of attorney holder of the Land holder and the Bank has opened the loan account of the accused No.2 Shiv Dutt Mishra for depositing the installments, therefore, no criminal case in General Act is tenable against the petitioner. 6. It further contended that the petitioner is the power of attorney holder of the Land holder and the Bank has opened the loan account of the accused No.2 Shiv Dutt Mishra for depositing the installments, therefore, no criminal case in General Act is tenable against the petitioner. 6. It is further submitted on behalf of the petitioner that the land owner of the apartment in question has also lodged a criminal case against the present petitioner and others regarding same subject matter i.e. Dhanbad P.S. Case No.414 of 2011 / G.R. Case No.1659 of 2011 under Section 420 and 406 of the I.P.C. for which the present petitioner was in custody from 22.7.2011 and he has been granted regular bail by another Bench of this Court vide order dated 27.9.2011 in B.A. No.7221 of 2011, therefore, he was already in jail for more than two months practically in the case lodged by another person regarding same subject matter. 7. Counsel for the opposite party no.2 (Allahabad Bank) has filed counter affidavit in this case and has submitted that there is a direct allegation against the petitioner for committing cheating, breach of trust in conspiracy with the co-accused namely Shiv Dutt Mishra after forgery and fabricating the documents in order to cheat the Bank. It is further stated that a tripartite agreement was made between the Bank and the petitioner, who happens to be the Builder and the power of attorney holder of the land lord and between the buyer namely Shiv Dutt Mishra and on the basis of the same, a loan was granted amounting to Rs.8,70,000/-for the purchase of the flat in Shankaram Kaushal Apartment. 8. It is further submitted that the petitioner has not only cheated the Bank but has also cheated the land lord who has given him the power of attorney and the said land lord has cancelled the said power of attorney and filed the aforesaid criminal case i.e. Dhanbad P.S. Case No.414 of 2011 under Section 420 and 406 of the I.P.C. 9. Counsel appearing for the Bank has further contended that the act of cheating, misappropriation, forgery by the builders is very rampant in the State of Jharkhand and they are not only committing the illegal acts against the buyers and the land owners but also against the Banks, therefore, as there is specific and direct allegation against the petitioner, he is not entitled to get the anticipatory bail.. 10. Considering the submissions made by the parties and also considering the materials on record, I find that the petitioner being one of the member of the tripartite agreement with the Bank ( the complainant) and the installments were not paid for the loan amount and ultimately the said property was kept on mortgage to another Bank taking the loan from the Second Bank clearly shows that the present petitioner was also in conspiracy with the co-accused and cheated the Bank and in view of the fact that the petitioner has also cheated the land lord who has given him power of attorney and already another case has been lodged against him, which is still pending against him, I am not inclined to grant anticipatory bail to the petitioner. Accordingly, the prayer for anticipatory bail of the petitioner is, hereby, rejected.