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2020 DIGILAW 235 (UTT)

SANJEEV TIWARI v. STATE OF UTTARAKHAND

2020-06-05

RAVINDRA MAITHANI

body2020
JUDGMENT Hon'ble Ravindra Maithani, J. The instant petition under Section 482 of the Code of Criminal Procedure, 1973 (for short “the Code") has been filed to quash and set aside the order dated 26.11.2016, passed in Misc. Application No. 468 of 2016, Sanjeev Tiwari Vs. K.S. Rana and others, by the court of learned Chief Judicial Magistrate, Udham Singh Nagar (for short “the Case") as well as judgment and order dated 16.05.2017, passed in Criminal Revision No. 292 of 2016, Sanjeev Tiwari Vs. State of Uttarakhand and others (for short “the revision"). By the impugned order dated 26.11.2016, an application filed by the petitioner under Section 156 (3) of the Code has been rejected and this order has been confirmed in the revision. 2. Facts necessary to resolve the controversy are briefly stated as hereunder:- The petitioner filed an application under Section 156 (3) of the Code for investigation. Petitioner is an Executive/Manager of M/s General Power Company Limited (for short “the company"). According to the application, the company took a loan from Punjab National Bank, Branch Pilikothi, Khurja, Bulandshahr (U.P.) (for short “the Bank"). The Bank suddenly closed the credit limit of the company. Because of it, the company had to incur huge loss and the loan could not be repaid. The Bank proceeded under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short “the SARFAESI Act"). On 12.01.2015, at 02:00 PM the officers of the Bank visited the company premises without prior information and removed every person from the premises & locked it. The company informed the Police about it on 13.01.2015, but no action was taken. Subsequently, the company came to know that the Bank Officers were removing articles from the plant of the company. Therefore, on 03.09.2015, a mail was sent to the Bank. On 18.09.2015, the Bank replied that it never took possession of the company premises. According to the application, thereafter a petition was filed in the Court and finally on 08.04.2016 by the order of the Court lock was opened and inventory prepared. Many items were found missing from the plant. A report was given to the Police, but it was not lodged. 3. It is this application, which was rejected by the order dated 26.11.2016 passed in the case. Many items were found missing from the plant. A report was given to the Police, but it was not lodged. 3. It is this application, which was rejected by the order dated 26.11.2016 passed in the case. Learned court below dismissed the application mainly on the ground that since, the action was taken under the SARFAESI Act, criminal action may not be taken in the matter. It is this order, which has been confirmed in the revision. Aggrieved, the instant petition. 4. Learned counsel for the petitioner submits that due to non-cooperation of the Bank the company could not repay the loan and proceedings under the SARFAESI Act were initiated by the Bank. Bank issued notice for auction of the company's property. In those notices Bank had categorically stated that the Bank had taken possession of the assets of the company. When the petitioner filed a writ petition in the court, by the order of the court, the lock was opened and the articles were then found missing. Reference has been made to auction notice issued by the Bank as well as order dated 30.03.2016 passed by this Court in Writ Petition No. 2505 of 2015 (M/S), M/s General Power Company Pvt. Ltd Vs. State of Uttarakhand and others (for short “the writ petition"). 5. Learned Senior counsel for the petitioner would submit that perusal of the contents of the application under Section 156 (3) of the Code discloses commission of cognizable offences. Therefore, an order for investigation ought to have been passed. 6. On the other hand, learned counsel appearing for respondent nos. 2, 3 and 5 would submit that the Bank never took physical possession of the property of the company. Symbolic possession was taken. It is argued that for proceeding under Section 13, of the SARFAESI Act, it is not required that physical possession be taken. Referring to order dated 30.03.2016 passed in the writ petition it is further argued that this Court had already held that Bank did not lock the company premises. 7. Learned counsel for the respondent nos. 2, 3 and 5 would further submit that if petitioner had any grievance regarding any action taken under the SARFAESI Act, remedy could have been sought under Section 17 of it and for that purpose criminal proceedings may not be drawn. 8. Respondent no.4 has also been represented. 7. Learned counsel for the respondent nos. 2, 3 and 5 would further submit that if petitioner had any grievance regarding any action taken under the SARFAESI Act, remedy could have been sought under Section 17 of it and for that purpose criminal proceedings may not be drawn. 8. Respondent no.4 has also been represented. On behalf of him, it is urged that no case has been made out in the matter and possession of the company premises was never taken by the Bank, it was symbolic only. 9. It is true that in an auction notice issued on 16.12.2014, the Bank did not record that any possession was taken by the Bank. But, in its auction notice dated 11.04.2015, the Bank has categorically stated that possession of the secured assets has been taken by the Bank. But, the question is as to whether it establishes that, in fact, physical possession was taken by the Bank? (Notices are Annexure nos. 1 & 2 to the affidavit dated 29.10.2017 of the petitioner). 10. Two points would fall for consideration. They are; i. Whether on 13.01.2015 the Bank took the physical possession of the company property and, if so, its effect? ii. Whether a criminal prosecution may be launched in the matters on the basis of allegations leveled against the respondents. 11. In fact, record reveals that the Bank had declared the company as a willful defaulter and the assets of the company were declared as non-performing assets. This action of the Bank was challenged by the company in Writ Petition (M/S) No. 2640 of 2016 which was decided by this Court on 24.10.2016. These records have been filed by respondent nos. 2, 3 and 5 alongwith counter-affidavit dated 25.07.2017 of the respondent no.5. 12. It may be stated at this stage that in its application under Section 156 (3) of the Code, the petitioner states that on 12.01.2015 when the company premises was locked, on 13.01.2015 a letter was written to Senior Superintendent of Police. The copies were shared with the Bank as well. Subsequent to it, on 03.09.2015, according to application under Section 156 (3) of the Code filed by the company, again information was given to the Bank with regard to removal of the articles from the company premises. This communication dated 03.09.2015 was replied by the Bank. The copies were shared with the Bank as well. Subsequent to it, on 03.09.2015, according to application under Section 156 (3) of the Code filed by the company, again information was given to the Bank with regard to removal of the articles from the company premises. This communication dated 03.09.2015 was replied by the Bank. It finds mention in the order of the Court passed in the writ petition dated 30.03.2018, which is as hereunder:- “You had moved an application on 13.01.2015 before SSP, Udham Singh Nagar with the contentions that the bank has taken the possession of the plant at Rudrapur without notice to the company alongwith certain other allegation. Bank against the complaint submitted its reply to the SSP Udham Singh Nagar that o official of the bank visited the plant of the complainant company on 12.01.2015 as alleged in the complaint. Moreover the bank has not taken Physical Possession of the plant so far and only the Symbolic Possesion under the provisions of SARFAESI Act has been taken by the bank on 14.12.2012. Physical possession of the plant building is still with the company. It seems that you are making baseless complaints against the bank with the sole motive of delaying the legal proceedings initiated by the bank against the company for the recovery of its outstanding loan money. As the bank has not taken physical possession of the company's plant. The bank has absolutely no concern with the alleged complaint of Robbery." 13. After hearing the parties, this Court in its order dated 30.03.2018 in the writ petition held as hereunder:- “Thus, it is gathered from the documents brought on record that the respondent-bank has not put up its lock in the factory premises/plant of the petitioner." 14. In the writ petition, this Court held that the Bank did not put lock on the factory premises/plant of the company. The order dated 30.03.2015 of this Court passed in this writ petition is final. Respondent nos. 2, 3 and 5 state that the Bank never took physical possession of the premises of the Company. Only symbolic possession was taken. Respondent no.4 has also categorically stated that only symbolic possession was taken. The issue, in fact, had got settled then that the Bank did not lock the company premises on 12.01.2015. 15. The petitioner is a defaulter; he did not repay the loan. Only symbolic possession was taken. Respondent no.4 has also categorically stated that only symbolic possession was taken. The issue, in fact, had got settled then that the Bank did not lock the company premises on 12.01.2015. 15. The petitioner is a defaulter; he did not repay the loan. The Bank proceeded against him under SARFAESI Act. Non-payment of loan is a huge issue in this country. 16. In the case of Priyanka Srivastava Vs. State of U.P., (2015) 6 SCC 287 , the Hon'ble Supreme Court also discussed the tactics of a defaulter so as to pressurize the Bank for one time settlement. The Hon'ble Supreme Court para no. 19 observed as hereunder:- “19. We have narrated the facts in detail as the present case, as we find, exemplifies in enormous magnitude to take recourse to Section 156(3) Cr.P.C., as if, it is a routine procedure. That apart, the proceedings initiated and the action taken by the authorities under the SARFAESI Act are assailable under the said Act before the higher forum and if, a borrower is allowed to take recourse to criminal law in the manner it has been taken, it needs no special emphasis to state, has the inherent potentiality to affect the marrows of economic health of the nation. It is clearly noticeable that the statutory remedies have cleverly been bypassed and prosecution route has been undertaken for instilling fear amongst the individual authorities compelling them to concede to the request for one-time settlement which the financial institution possibly might not have acceded. That apart, despite agreeing for withdrawal of the complaint, no steps were taken in that regard at least to show the bona fides. On the contrary, there is a contest with a perverse sadistic attitude. Whether the complainant could have withdrawn the prosecution or not, is another matter. Fact remains, no efforts were made." 17. In the instant case, undoubtedly the Bank was taking recourse to SARFAESI Act for the recovery of outstanding dues. The Bank was proceeding under Section 13 of the SARFAESI Act. If the measures were wrong and the company was aggrieved definitely, recourse to Section 17 of the SARFAESI Act could have been taken. Criminal prosecution cannot be allowed to be launched in such cases. 18. The Bank was proceeding under Section 13 of the SARFAESI Act. If the measures were wrong and the company was aggrieved definitely, recourse to Section 17 of the SARFAESI Act could have been taken. Criminal prosecution cannot be allowed to be launched in such cases. 18. This Court is of the view that, in fact, the application under Section 156 (3) of the Code filed by the petitioner does not disclose any cognizable offence. It definitely appears to have been moved by the petitioner to pressurize the Bank so that they may, under fear of criminal prosecution, settle the Case with the petitioner on his terms. It may be a dispute that could be taken before any forum under the SARFAESI Act. 19. Accordingly, this Court is of the view that learned courts below did not commit any error in rejecting the application under Section 156 (3) of the Code filed by the petitioner. There is no reason to make any interference & the petition deserves to be dismissed. 20. Accordingly, the petition is dismissed.