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2015 DIGILAW 465 (JHR)

Abhinandan Prasad Sinha v. State of Jharkhand

2015-04-15

RONGON MUKHOPADHYAY

body2015
ORDER : Heard learned counsel for the petitioners and learned counsel for the opposite parties. 2. In this application, the petitioners have prayed for quashing the entire criminal proceeding in connection with Complaint Case No. 529 of 2012 including the order dated 06.04.2013 passed by the learned Civil Judge, Junior Division – III, Koderma whereby and whereunder cognizance has been taken for the offences punishable under Sections 420/120B of the Indian Penal Code. 3. A complaint case was filed by the opposite party no. 2 herein in which it was stated that an advertisement was published in daily newspaper ‘Dainik Jagran’ being advertisement cum auction notice on 06.05.2011 wherein bids were invited from the public for sale of a house belonging to Shyam Deo Prasad Singh situated in Khata No. 40/2009 Plot No. 68 area 8 decimals. It was further stated in the complaint that Shyam Deo Prasad Singh had taken loan from the bank and as he failed to clear the dues, the petitioners took possession of the house and wanted to recover the dues from the auction sale of the said property. It was further stated in the advertisement that the intending purchasers can inspect the house property along with the petitioner no. 2. It is alleged that when the complainant went to inspect the house along with the petitioner no. 2, the house was found locked and the petitioner told him that the house is vacant and is in possession of the bank. Believing the statement of the petitioners, the complainant deposited a sum of Rs. 4,20,000/- as earnest money and made a bid for Rs. 42,00,000/- The bid of the complainant was accepted on 17.06.2011 and he was directed to make the balance payment within 15 days. It is alleged that on 18.06.2011, when the complainant visited the property, he found it in possession of Shyam Deo Prasad Singh at which the complainant asked the bank to give him vacant possession otherwise the balance amount shall not be paid. It is also alleged that thereafter the petitioners have filed Case No. 27 of 2011 and 28 of 2011 before the Deputy Commissioner, Koderma on 18.10.2011 for getting vacant possession of the house in question and pursuant to order dated 17.04.2012, the vacant possession of the house of Shyam Deo Prasad Singh was obtained. It is also alleged that thereafter the petitioners have filed Case No. 27 of 2011 and 28 of 2011 before the Deputy Commissioner, Koderma on 18.10.2011 for getting vacant possession of the house in question and pursuant to order dated 17.04.2012, the vacant possession of the house of Shyam Deo Prasad Singh was obtained. Subsequent thereto the complainant had made verbal and written request to the petitioner to transfer the house property in his favour, but he failed to do so and on 12.07.2012, the petitioner no. 1 informed the complainant that since he had not abided by the terms of the auction notice, the earnest money deposited by him has been forfeited. Based on the aforesaid allegations, C. P. Case No. 529 of 2012 was instituted. 4. After conducting an inquiry under Section 202 of the Cr.P.C., the learned Civil Judge, Junior Division – III, Koderma was pleased to take cognizance for the offences punishable under Section 420 and 120 B of the Indian Penal Code. 5. The learned counsel for the petitioners has submitted that the petitioners are authorised officer and Branch Manager of Allahabad Bank respectively and they have been implicated falsely without there being any iota of criminal element in the alleged acts on the part of the petitioners. It has been submitted that since Shyam Deo Prasad Singh was sanctioned a loan on 19.06.2009 and had to pay equal monthly installments of Rs. 67,500/- per month in 60 installments and since the said Shyam Deo Prasad Singh failed to repay the loan, the account became N.P.A. on 31.03.2010 and ultimately the bank was compelled to take action against Shyam Deo Prasad Singh under Section 13(2) ofthe SARFAESI Act, 2002. It has been submitted that since Shyam Deo Prasad Singh did not make any effort to repay the loan to the bank, the bank was compelled to take symbolic possession of the property and the same was published in daily ‘Hindustan’ on 25.09.2010. It has been submitted that since Shyam Deo Prasad Singh did not make any effort to repay the loan to the bank, the bank was compelled to take symbolic possession of the property and the same was published in daily ‘Hindustan’ on 25.09.2010. It has been submitted that an auction sale and notice of sale was published in daily newspaper ‘Dainik Jagran’ on 06.05.2011 wherein it was clearly mentioned that the sale of the property is on “as is where is basis” and in such circumstances when the bank had taken symbolic possession of the property in question, the complainant cannot take a stand that the bank had deliberately misguided and cheated him by accepting his bid with respect to a property which was not in physical possession of the bank. The learned counsel for the petitioners has further referred to Rule 8 & 9 of the Security Interest Enforcement Rules, 2002 which provides for sale of immovable secured assets; and that Rule (5) of the said Rules provides for forfeiture of money in case of default. It has been submitted by the learned counsel for the petitioners that in spite of the bid of the complainant being accepted, the complainant did not choose to pay the installments in terms of the auction notice and the bank was constrained to forfeit the earnest money which was according to the Rules and the complainant only with a view to create pressure upon the petitioners has instituted the present case which on the face of it appears to be a vexatious litigation imposed upon the petitioners. 6. The learned counsel for the opposite party no. 2, on the other hand, has submitted that the complaint petition itself reveals a deception on the part of the petitioners inasmuch as, even though the property was not in physical possession of the bank, but the complainant was deceived into believing that the bank had possession over the property and had therefore bid for purchasing the property in question on auction. It has also been submitted that in the notice of sale, it has been mentioned that the authorised officer of the bank had taken possession of the mortgaged property which is the subject-matter of the dispute and nowhere in the said notice of sale, it has been mentioned that the bank merely had a symbolic possession and not actual physical possession. This act according to the learned counsel for the opposite party no. 2 fulfills the ingredients of cheating, as it was a deliberate ploy on the part of the petitioners to auction sale a property which was not in its actual physical possession. It has also been submitted that after the property was vacated, the complainant had several times requested the petitioners to transfer the property in his name, but no response was given to the same which would further substantiate the fact that the petitioners had an intention to cheat the complainant from the very beginning of the transaction. 7. After having heard the learned counsel for the parties and on going through the records, I find that on failure on the part of Shyam Deo Prasad Singh to pay the installments to the bank, an auction sale notice was issued by the bank dated 30.05.2011 in which sealed tenders were invited for the sale of the property in question on “as is where is basis”. In the notice of sale dated 30.05.2011, a clause was inserted as Clause 8 in which it was indicated that the intending purchasers may contact the Branch Manager for inspection of the property. This Clause denotes that there was no intention on the part of the petitioners to thrust upon a successful bidder a property which was not in physical possession of the bank. The term “as is where is basis” denotes that the intending purchasers have to contend while bidding for the property, the position of the property which exists on that day. It was for the intending purchaser to verify himself in all respect as to the title, encumbrances and so forth of the immovable property that he proposes to purchase and after having auction purchased the property he cannot take recourse to a criminal proceeding on the ground that the Bank had induced him into depositing the earnest money. It was incumbent upon the complainant to verify whether he was purchasing a property or a problem. The complainant had claimed that he was duped by the petitioners in bidding the property on the belief that the property is in possession of the bank. It is not in doubt that the property was indeed in possession of the bank when the auction sale notice was issued, but the said possession was not actual physical possession, but symbolic possession. It is not in doubt that the property was indeed in possession of the bank when the auction sale notice was issued, but the said possession was not actual physical possession, but symbolic possession. The bank authorities had filed cases against Shyam Deo Prasad Singh on 18.10.2011 for getting vacant possession of the house property in question and subsequent thereto on 17.04.2012 the vacant possession of the property was obtained. The complainant is basically aggrieved with the forfeiture of the earnest money on account of non payment of the installments. For the said grievance, the complainant had other remedies available to him under law. The complaint case instituted by the complainant appears to be by way of creating pressure tactics upon the bank to allow him to purchase the property in auction sale. The acts/actions on the part of the petitioners do not denote that there was a criminal intent on the part of the petitioners or that there was an act of deception from the very inception of the transaction and in such circumstances the petitioners cannot beallowed to be prosecuted in a criminal case. The learned court below while taking cognizance on 06.04.2013 had basically relied upon the fact that the property in dispute was not vacant and the accused persons had given a false notice that the same was vacant. The notice of auction sale only reveals that the authorised officer of the bank had taken possession of the property and has invited sealed tenders for the sale of the said property on a “as is where is basis” and thus it cannot be construed to mean that the property is not vacant thereby inducing the complainant to bid for the property. The possession which has been indicated in the notice of sale does not denote whether it was actual physical possession or symbolic possession but the sale of property was on “as is where is basis” and in such circumstances, the learned court below did not properly appreciate the said facts while taking cognizance for the offences punishable under Section 420 and 120 B of the Indian Penal Code. 8. Considering the totality of the circumstances enumerated above, I do find merit in this application. 8. Considering the totality of the circumstances enumerated above, I do find merit in this application. This application is accordingly allowed and the entire criminal proceeding in connection with Complaint Case No. 529 of 2012 including the order dated 06.04.2013 passed by the learned Civil Judge, Junior Division – III, Koderma is hereby quashed.