Jharkhand High Court
Tata Capital Financial Services ... vs State Of Jharkhand on 14 June, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 183 of 2021
Tata Capital Financial Services Limited, a company incorporated
under the Companies Act having its registered office at Lodha -1,
Think Techno Campus/A, Off Pokharan Road 2, Behind TCS, P.O.,
P.S. & Dist -Thane (West), State -Maharashtra -400607 through its
authorized representative Rajeev Bhadoria, S/o Mr. Ganesh Singh
Bhadoria, aged about 48 years, employed as Head Debt Management-
Commercial Finance, Tata Capital Financial Services Limited, Lodha-1,
Think Techno Campus/A, Off Pokharan Road 2, Behind TCS, P.O.,
P.S. & Dist -Thane (West), State -Maharashtra -400607.
.... Petitioner
Versus
1. State of Jharkhand
2. Sanjay Kumar Ghanghoria, S/o Sri Ramlal Ghanghoria, R/o Hari
Om Nagar, P.O. & P.S. -Adityapur, District -Seraikella-Kharsawan,
Pin-831013. .... Opp. Parties
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. Ajit Kumar, Sr. Advocate : Mr. Bharat Kumar, Advocate : Akriti Shree, Advocate For the State : Mr. Sreenu Garapati, S.C. -III For the O.P. No.2 : Mr. Nilesh Kumar, Advocate : Ms. Sonal Sodhani, Advocate .....
By the Court:-
1. Heard the parties.
2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the entire criminal proceeding of Adityapur P.S. Case No. 122 of 2020 involving the offences punishable under Section 461/379/511/427/34 of the Indian Penal Code.1
Cr.M.P. No.183 of 2021
3. The brief facts of the case is that the representative and man of the petitioner at 11:00 hours went to the plant of the informant, broke open the lock, made a JCB Machine enter inside the plant, and in the process, the boundary wall of the plant broke and several machines of the informant were broken. On the basis of the written report submitted by the informant, police registered Adityapur P.S. Case No. 122 of 2020 for the offences as already indicated above in the foregoing paragraph of this judgment.
4. It is submitted by the learned Senior Counsel for the petitioner that the F.I.R. has been lodged for wrecking vengeance to prevent Tata Capital Financial Services Limited (TCFSL) from exercising its contractual and statutory rights under the loan agreement. It is next submitted that the petitioner sanctioned a loan of Rs.2,25,00,000/- to Shree Krishna Forging. The loan was availed by Shri Amit Sharma on behalf of Shree Krishna Forging by executing the necessary documents but deliberate and wilfull default was made in repayment of the loan amount. A loan recall notice was issued. The petitioner company issued a demand notice under Section 13(2) of the Sarfaesi Act, 2002 asking the borrower to pay the outstanding amount. As the borrower did not pay the outstanding amount, the District Magistrate, Seraikella under Section 14 of the Sarfaesi Act, vide order dated 04.01.2018 directed the Superintendent of Police Seraikella -Kharsawan to provide police protection for acquiring physical possession of the hypothecated equipment on 04.01.2018. On 05.01.2018, physical 2 Cr.M.P. No.183 of 2021 possession of the hypothecated equipment was acquired by the petitioner in presence of Revenue Inspector after preparing Panchnama. Subsequently notices of possession and public auction were published in the newspapers on 19.01.2018. In the auction purchase, the purchaser purchased ten number of equipment and a sale certificate was issued by the said company in respect of the hypothecated equipment, thus, sold. The said Amit Sharma earlier lodged Adityapur P.S. Case No. 336 of 2018 making similar allegations. It is next submitted by the learned Senior Counsel for the petitioner that there is absolutely no allegation made in the F.I.R. of commission of theft of any property by anyone, hence in the absence of the same, the offence punishable under Section 379 of the Indian Penal Code is not made out even if the allegations made in the F.I.R. are considered to be true in their entirety. It is next submitted that in the absence of any allegation of breaking open or unfastening any closed receptacle, the offence punishable under Section 461 of the Indian Penal Code is not made out. It is next submitted that the offence punishable under Section 427 of the Indian Penal Code is a non-
cognizable offence and so far as Section 511 of the Indian Penal Code is concerned, the same is cognizable or non-cognizable, is to be determined, according to the offence which is attempted to have been committed and in the absence of any allegation of commission of any cognizable offence, the registration of the F.I.R. is not maintainable, hence the same be quashed and set aside. 3 Cr.M.P. No.183 of 2021
5. Relying upon the Judgment of Hon'ble Supreme Court of India in the case of K. Virupaksha and Another Vs. State of Karnataka and Another, reported in (2020) 4 SCC 440, para -16 & 17 of which reads as under:-
"16. We reiterate, the action taken by the Banks under the Sarfaesi Act is neither unquestionable nor treated as sacrosanct under all circumstances but if there is discrepancy in the manner the Bank has proceeded it will always be open to assail it in the forum provided. Though in the instant case, the application filed by the complainant before DRT has been dismissed and Appeal No. 523 of 2015 filed before DRAT is also stated to be dismissed the appellants ought to have availed the remedy diligently. In that direction, the further remedy by approaching the High Court to assail the order of DRT and DRAT is also available in appropriate cases. Instead the petitioner after dismissal of the application before the DRT filed the impugned complaint which appears to be an intimidatory tactic and an afterthought which is an abuse of the process of law. In the matter of present nature, if the grievance as put forth is taken note of and if the same is allowed to be agitated through a complaint filed at this point in time and if the investigation is allowed to continue it would amount to permitting the jurisdictional police to redo the process which would be in the nature of reviewing the order passed by the learned Single Judge and the Division Bench in the writ proceedings by the High Court and the orders passed by the competent court under the Sarfaesi Act which is neither desirable nor permissible and the banking system cannot be allowed to be held to ransom by such intimidation. Therefore, the present case is a fit case wherein the extraordinary power is necessary to be invoked and exercised.
17. The appellants herein had also referred to the provision as contained in Section 32 of the Sarfaesi Act which provides for the immunity from prosecution since protection is provided thereunder for the action taken in good faith. The learned Senior Counsel for the complainant has in that regard referred to the decision of this Court in Army Headquarters v. CBI [Army Headquarters v. CBI, (2012) 6 SCC 228 : (2012) 3 SCC (Cri) 88] to contend that the defence relating to good faith and public good are questions of fact and they are required to be proved by adducing evidence. Though on the proposition of law as enunciated therein there could be no cavil, that aspect of the matter is also an aspect which can be examined in the proceedings provided under the Sarfaesi Act. In a circumstance, where we have already indicated that a criminal proceeding would not be sustainable in a matter of the present nature, exposing the appellants even on that count to the 4 Cr.M.P. No.183 of 2021 proceedings before the investigating officer or the criminal court would not be justified." (Emphasis supplied) It is submitted by the learned senior counsel for the petitioner that like the case of K. Virupaksha and Another Vs. State of Karnataka and Another (supra), in this case also, the informant who is a subsequent purchaser of the property from the wife of the borrower Amit Sharma has instituted this case for wrecking vengeance. Hence, it is submitted that on this score also, the entire criminal proceeding be quashed and set aside.
6. The learned SC-III submits that the boundary of the plant in which the machineries were kept is a receptacle and as the boundary has been broken, so the allegations made in the F.I.R. are sufficient to arrive at the conclusion that a receptacle has been broken. Hence, the offence punishable under Section 461 of the Indian Penal Code is made out.
7. The learned counsel for the opposite party no.2 also submits that since the shed is a closed space, hence breaking of the boundary wall of a plant amounts to breaking open a closed receptacle, hence the offence punishable under Section 461 of the Indian Penal Code is made out and as the investigation of the case is going on, at this stage, the entire criminal proceeding ought not be quashed and set aside. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed.
8. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here 5 Cr.M.P. No.183 of 2021 that so far as the offence punishable under Section 379 of the Indian Penal Code is concerned, in the absence of any allegation of commission of theft of any property or valuable, this Court has no hesitation in holding that the offence punishable under Section 379 of the Indian Penal Code is not made out.
9. So far as the offence punishable under Section 461 of the Indian Penal Code is concerned, the essential ingredients to constitute the offence under Section 461 of the Indian Penal Code are as follows:-
(i) The subject matter of the offence was a closed receptacle.
(ii) The receptacle contained the property or the accused believed that it contained the property.
(iii) The accused broke open or unfastened the receptacle.
(iv) He did so dishonestly or with intention of committing mischief.
10. The lexical meaning of the word 'receptacle', is that, it is a container for putting something in. In the considered opinion of this Court, the work 'receptacle' used in Section 461 of the Indian Penal Code means a closed container, the contents of which is not visible from outside, hence a machine kept under a shed of a plant, in the considered opinion of this Court, cannot be termed to be a receptacle and breaking of wall of boundary wall of a plant, within which there are some machinery under some shed, cannot amount to breaking open or unfastening of any closed 'receptacle', 6 Cr.M.P. No.183 of 2021 in the sense of the term 'receptacle' as has been used in section 461 of the Indian Penal Code. Under such circumstances, in the considered opinion of this Court, even if the entire allegations made in the F.I.R. are considered to be true, still the offence punishable under Section 461 of the Indian Penal Code is not made out.
11. So far as the rest two offences punishable under Section 427 and 511 of the Indian Penal Code are concerned, the offence punishable under Section 427 of the Indian Penal Code is an non- cognizable offence and as the offence punishable under Section 511 of the Indian Penal Code refers to the offence punishable under Section 427 of the Indian Penal Code only; as this court has already held that even if the allegations made against the petitioner are considered to be true in their entirety, still the offence punishable either under section 379 or under section 461 of the Indian Penal Code is not made out, so for the purposes to this case, the offence punishable under section 511 of the Indian Penal Code, is also to be treated as non-cognizable offence.
12. Under Such circumstances, since no cognizable offence is involved in the F.I.R. and the undisputed fact remains that there was an order under Section 14 of the Sarfaesi Act, 2002 in respect of some of the properties in the place of occurrence factory shed and there was auction also as per the provisions of the Sarfaesi Act, 2002 and the attending facts and circumstances of this case, this Court is of the considered view that continuation of the F.I.R. 7 Cr.M.P. No.183 of 2021
will amount to abuse of process of law. Hence, this is a fit case where the entire criminal proceeding of Adityapur P.S. Case No. 122 of 2020 involving the offences punishable under Section 461/379/511/427/34 of the Indian Penal Code be quashed and set aside.
13. Accordingly the entire criminal proceeding of Adityapur P.S. Case No. 122 of 2020 involving the offences punishable under Section 461/379/511/427/34 of the Indian Penal Code is quashed and set aside.
14. In the result, this criminal miscellaneous petition is allowed.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 14th June, 2024 AFR/Sonu-Gunjan/-
8 Cr.M.P. No.183 of 2021