Bombay High Court
Ltd vs The State Of Maharashtra on 27 September, 2012
Author: A.R. Joshi
Bench: A.M. Khanwilkar, A.R. Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2414 OF 2005
Indur Kartar Chhugani,
Age : 58 years, Occ.Business,
R/o. : 501-502, Pinky Panorama CHS
Ltd., 6th Road, Khar (W), Mumbai - 400 052. ..Petitioner
[Orig.Accused]
Versus
1. The State of Maharashtra,
at the instance of Addl. Chief Secretary,
Home Department, Government of
Maharashtra, Mantralaya, Mumbai.
2. The Senior Inspector of Police,
Khar Police Station, Mumbai.
3. Arun Walzade,
Age : Adult, Occ. Service,
Asst. Police Inspector
Khar Police Station, Mumbai.
4. Mehboob A. Inamdar,
Age : Adult, Occ.Service,
P.S.I. (EOW), Mumbai.
5. The Punjab National Bank Ltd.,
through Shri Surinder Singh Kohli,
The Managing Director, 7,
Bhikaji Cama Place,
New Delhi 110 066.
6. Shri Alok Kulshreshtha,
Age : Adult, Occ.Service,
The Chief Manager, Punjab National Bank,
ARMB Branch, 265, Birya House,
Bazar Gate, Fort, Mumbai - 400 001.
7. R.I.S. Sidhu,
Age : Adult, Occ. Service,
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The General Manager (Zonal Office),
Punjab National Bank, 11th Floor,
Dalamal House, Nariman Pt.,
Mumbai - 400 021.
8. Anil Bhan,
Age : Adult, Occ.Service,
The Chief Manager (Zonal Office),
Punjab National Bank,
11th Floor, Dalamal House,
Nariman Pt., Mumbai - 400 021.
9. R. Srinivasan,
Age : Adult, Occ.Service,
The Senior Manager,
Punjab National Bank, ARMB Branch,
265, Birya House, Bazar Gate,
Fort, Mumbai - 400 001.
10. Bharat Overseas Bank Ltd.,
through G. Krishna Murthy,
The Chairman, Habeeb Towers,
196, Anna Salai, Chennai - 600 002.
11. Shree Mihir Datta,
Age : Adult, Occ.Service,
The Chief Manager,
Bharat Overseas Bank Ltd.,
Bharat Chambers, 22/26,
K. Dubhash Marg, Rampart Row,
Fort, Mumbai - 400 023.
12. S. Parthasarathy,
Age : Adult, Occ.Service,
The Senior Asst. General Manager,
Bharat Overseas Bank Ltd.,
Habeeb Towers, 196, Anna Salai,
Chennai - 600 002.
13. R.K. Gupta,
Age : Adult, Occ.Service,
The Sr. Asst. General Manager (Mumbai),
Bharat Overseas Bank Ltd.,
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Habeeb Towers, 196, Anna Salai,
Chennai - 600 002.
14. Devinder Singh,
Age : Adult, Occ.Service,
Bharat Overseas Bank Ltd.,
Bharat Chambers, 22/26,
K. Dubhash Marg, Rampart Row,
Fort, Mumbai - 400 023.
15. Rakesh Arora,
Age : Adult, Occ.Service,
Bharat Overseas Bank Ltd.,
Bharat Chambers, 22/26,
K. Dubhash Marg, Rampart Row,
Fort, Mumbai - 400 023.
16. Sandeep P.J.,
Age : Adult, Occ.Service,
Bharat Overseas Bank Ltd.,
Bharat Chambers, 22/26,
K. Dubhash Marg, Rampart Row,
Fort, Mumbai - 400 023.
17. Prashant Salunke,
Age : Adult, Occ.Service,
Punjab National Bank,
ARMB Branch, 265,
Birya House, Bazar Gate,
Fort, Mumbai - 400 001
18. Chandrakant K.
Age : Adult, Occ. Service,
Punjab National Bank, ARMB Branch,
265, Birya House, Bazar Gate,
Fort, Mumbai - 400 001
19. The Commissioner of Police,
Mumbai. ..RESPONDENTS.
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WITH
CRIMINAL APPEAL NO.688 OF 2006
Punjab National Bank,
A Bank constituted under the Banking
Companies (Acquisition and Transfer of
Undertakings) Act, 1970, having its Head
Office at 7, Bhikaji Cama Place, New
Delhi - 110066 and having an Asset
Recovery Branch, Represented through
its Officer Mr. Gopichand Rane at Asset
Recovery Management Branch, 265,
Birya House, Bazar Gate, Fort, Mumbai - 1 ..APPELLANT
V/s.
1. Indur K. Chhugani,
501 & 502, Pinky Panorama
Co-operative Housing Society Limited,
5th Floor, 6th Road, Khar (West), Mumbai -
400 052.
2. Bharat Overseas Bank Ltd.,
Having its Branch at Bharat Chambers,
22/26, K. Dubash Marg, Rampart Row,
Fort, Mumbai - 400 023.
3. State of Maharashtra. ..RESPONDENTS
....
Mr. Indur Kartar Chhugani, in person as petitioner in Cri.WP
No.2414/2005 & as respondent No.1 in Cri.Appeal No.688/2006
Mrs. Revati Mohite - Dere, Public Prosecutor a/w. Ms. P.P. Shinde, APP,
for Respondent Nos.1 to 4 & 19.
Mr. P.P. Tipnis i/b. Consulta Juris, for Respondent No.2 in Cri.Appeal
No.688/2006 & for Respondent Nos.10 to 14 in Cri. WP No.2414/2005.
Mr. Pankaj Vijayan, for Respondent Nos.5 to 9 and 17 & 18.
....
CORAM : A.M. KHANWILKAR, &
A.R. JOSHI, JJ.
JUDGMENT RESERVED ON: 20TH JULY, 2012
JUDGMENT PRONOUCNED ON: 27th SEPTEMBER, 2012
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JUDGMENT :(Per A.R. Joshi,J.)
1. By this common judgment and order the abovenumbered proceedings are disposed of together as it involves common and overlapping questions.
2. Rival arguments were heard on earlier dates. Perused the order dated 30.1.2006 which is impugned in Criminal Appeal No.688 of 2006. Said order was passed by the then learned Judge of Special MPID Court & Additional Sessions Judge, Greater Bombay. Said order was passed below show-cause notice issued to one Indur K. Chhugani in C.R. No.47 of 2004 registered by EOW, through CB, CID, Mumbai against said Indur K. Chhugani, his wife and his son.
3. At the threshold, it must be mentioned that there is specific order of this Court dated 9/9/2009 of another Division Bench by which certain directions were given for not taking up the criminal writ petition for final hearing at the instance of the petitioner unless he vacates the Flat Nos.501 and 502. The said order dated 9/9/2009 was passed by the Division Bench (Shri B.H. Marlapalle and Smt. Roshan Dalvi, JJ.).
The said order dated 9/9/2009 is reproduced hereunder for the sake of clarity :
"1. This petition shall not be taken up for further hearing at any time in future, at the instance of the petitioner 5 / 29 ::: Downloaded on - 09/06/2013 19:11:03 ::: 6 wp.2414.2005+.doc unless he vacates both the flats, i.e. Flat No.501 and 502, which he and his family is in possession for the last about 4 years, despite the order passed by this Court on 12th December, 2005 and the recent orders passed by the Debt Recovery Tribunal.
2. Admittedly our order dated 12th December, 2005 has received its finality and the petitioner is bound by the observations made therein about his alleged title over the said property, i.e. the suit flats."
4. The above order dated 9/9/2009 was challenged by the petitioner before the Supreme Court in Special Leave Petition No. 9120/2009. However, the said special leave petition was dismissed by the Hon'ble Apex Court with the following order :
"We do not find any ground to interfere. The special leave petition is dismissed."
5. Considering the import of the order dated 9/9/2009 and the factual and legal position on the aspect vis a vis possession of Flat Nos.
501 and 502 with the petitioner and his family members, we thought it fit in the interest of justice to proceed with the matter on its own merits.
For, it was necessary to break the deadlock or impasse which was enuring to the benefit of the petitioner - though the abovesaid order was intended to non-suit the petitioner from challenging the impugned FIR until he vacates the said flats which he was occupying unauthorisedly.
In other words, the petitioner was taking advantage of his own wrong by not vacating the suit flats and because of pendency of the present Writ 6 / 29 ::: Downloaded on - 09/06/2013 19:11:03 ::: 7 wp.2414.2005+.doc Petition, even the criminal action against the petitioner is kept in abeyance. This cannot be countenanced.
6. Prior to appreciating the rival arguments, certain factual position and circumstances leading to filing of the present Writ Petition and Criminal Appeal are required to be mentioned.
One M/s. Soundcraft Industries Ltd. was granted financial assistance to the extent of Rs.1000/- lakhs.
ig It was an assistance granted by the Punjab National Bank (appellant in Criminal Appeal No.688/2006). M/s. Seema Investment Pvt. Ltd., owned Flat No.502, 5th Floor, Pinky Panorama CHS Ltd., 6th Road, Khar (West), Mumbai and said M/s. Seema Investment Pvt. Ltd. stood as guarantor to the loan account of M/s. Soundcraft Industries Ltd.. M/s. Soundcraft Industries Ltd. was being operated and controlled by one Rajkumar Basantani along with his other associates. Said M/s. Soundcraft Industries Ltd.
also obtained loan / financial assistance from another bank i.e. Bharat Overseas Bank. In order to secure the financial assistance given by said bank again M/s. Seema Investment Pvt. Ltd. stood as co-lateral security by creating equitable mortgage with respect of another flat No.501 again situated on the 5th Floor, Pinky Panorama CHS Ltd., 6 th Road, Khar (West), Mumbai. In fact, both the said flats No. 501 & 502 are having one entrance and both the flats are joined from inside and 7 / 29 ::: Downloaded on - 09/06/2013 19:11:03 ::: 8 wp.2414.2005+.doc being treated as one residential unit. Presently, said flats are in actual physical possession of the writ petitioner Indur K. Chhugani, his wife and his son.
7. Without going into much details as to the transactions inter se amongst said two banks and Rajkumar Basantani, suffice it to say that the borrower Rajkumar Basantani of M/s. Soundcraft Industries Ltd.. failed to repay the loan to the banks. Consequently, proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, for short) were initiated. Under the said proceedings, noticing failure to repay the loan, the properties which were mortgaged with the banks were directed to be seized, and as such on or about 23rd June, 2004 symbolic possession of the flats was taken. Apparently under the directions of the Chief Judicial Magistrate, Mumbai the Registrar of the said Court took possession of the said flats under panchnama and handed over possession of the said flats to respective banks i.e. Bharat Overseas Bank Ltd., and Punjab National Bank (appellant in Criminal Appeal No.688/2006).
8. There were parallel proceedings initiated against Rajkumar 8 / 29 ::: Downloaded on - 09/06/2013 19:11:03 ::: 9 wp.2414.2005+.doc Basantani under the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999 ( MPID Act, for short). In the said parallel proceedings ,as per the provisions of the MPID Act, the Designated Special Court under the said Act passed an order of attachment of the same flats No. 501 & 502. Said order was passed on 19.1.2005. As such, the investigating officer of the Economic Offences Wing attached the said flats under panchnama on 8 th February, 2005.
On 12th February, 2005 the concerned Banks at whose instance the said flats were earlier attached by the order of the Chief Metropolitan Magistrate under SARFAESI Act, were served with copy of the attachment order passed by the MPID Court.
Subsequently, on or about 24th February, 2005 Indur
9. Chhugani (respondent No.1 in Criminal Appeal No.688/2006 and writ petitioner in Criminal Writ Petition No.2414/2005), approached both the banks under the premise that the banks have formed a consortium for auction-sale of both the flats No.501 & 502, which are being used as one tenement. According to Indur Chhugani, he had given his bid and tendered the amount of alleged agreed price for both the flats and in fact passed on demand drafts for the total value of Rs.50.91 lakhs.
However, according to the banks there was no concluded contract between the parties and auction had not materialized as the amount 9 / 29 ::: Downloaded on - 09/06/2013 19:11:03 ::: 10 wp.2414.2005+.doc offered by Indur Chhugani was much below the fixed or reserved price and as such on or about 25.2.2005 the proposal of Indur Chhugani was rejected and the demand draft without encashing was returned back to Indur Chhugani. This fact is discerned from the contents of the writ petition and criminal appeal, which are under consideration.
10. Thereafter, on or about 21st March2005 the investigating officer of EOW informed the MPID Court that he found Indur Chhugani, his wife and son occupying the said flats Nos.501 & 502. On such revelation, directions were given by the MPID Special Court for inspection and accordingly again on or about 22nd March, 2005 it was found out that Indur Chhugani was residing in the said flat Nos.501 & 502 without there being any valid documents of transfer of title / ownership with respect to said flats in his favour. In fact, without there being any authentic document indicating lawful possession of the said flats, Indur Chhugani and his family members were found residing in the said flats. This factual position led the MPID Court to make detailed notings from March, 2005 to July, 2005, and in between directions were given to the Bank officials as well as the Investigating Officer of EOW to lodge criminal complaint against Indur Chhugani and his family members for their per se wrongful and illegal possession over flat Nos.501 & 502. In fact, various steps were taken by Indur Chhugani to 10 / 29 ::: Downloaded on - 09/06/2013 19:11:03 ::: 11 wp.2414.2005+.doc continue with his occupation over flat Nos.501 & 502 and he preferred various Misc. Applications / Writ Petitions before this Court, but, without any success. Even Civil Suit was filed by Indur Chhugani somewhere in October, 2005 for specific performance of taking a sale certificate in his favour from the concerned Banks with respect to flat Nos.501 & 502, but, again without any success. Said Civil Suit was rejected by the City Civil Court, Bombay mainly on the ground of non-maintainability on account of non-payment of proper court fees.
11. On 24.3.2005, the Investigating Officer of EOW attended the Khar police station and registered a criminal complaint against Indur Chhugani, his wife and his son, being C.R. No.103 of 2005 for the offences punishable under Sections 448, 454 r/w. 34 of Indian Penal Code. Said FIR was lodged as per the directions of the Special MPID Court. In the meantime, in the main complaint under the MPID Act against Rajkumar Basantani, it transpired that he left India and went to USA along with his family members and as such was not available for the trial before the MPID Court. As such, requisite processes were issued against him - including non-bailable arrest warrant and proclamation. Said Rajkumar Basantani was declared as proclaimed offender and was put on look-out in the record of Special Branch No.2.
Red-corner notice, through Interpol, was also issued against him. His 11 / 29 ::: Downloaded on - 09/06/2013 19:11:03 ::: 12 wp.2414.2005+.doc bank accounts with different banks and also demat accounts so also immovable property including flat Nos.501 & 502 were attached and seized. After completion of investigation, while declaring Rajkumar Basantani as proclaimed offender, charge-sheet was filed against the co-accused by names Haresh & Vinod Hingorani etc.
12. Against the registration of FIR for the offences punishable under Sections 448 & 454 read with Section 34 of Indian Penal Code, Indur Chhugani filed Writ Petition No.2414/2005 which is under consideration. By the said Writ Petition, he has asked for various reliefs. In order to have clarity of the reliefs sought, said prayers are reproduced hereunder :
"(A) The Rule may be issued;
(B) The Respondent Nos.1 & 2 may kindly be directed to
drop the prosecution against the Petitioner in respect of I C.R. No. 103/05 registered with the Khar Police Station, Mumbai, U/s. 448, 454 r/w. 34 of the I.P.C.; (C) This Honourable Court may on its own or through the Respondent No.19, depute an independent and superior police officer to investigate this entire case and report back to the Honourable Court in a time bound schedule, and necessary actions been taken thereupon;
(D) The Respondent Nos.1, 19 & 2 may kindly be directed
to initiate actions against the erring police
officers Respondent Nos.3 & 4 together with the
officers of the Respondent Nos.5 & 10 Banks,
including Respondent Nos.6 to 9, 11 & 13 for
their criminal conspiracy with the absconding Accused Rajkumar Basantani, committing misappropriation, 12 / 29 ::: Downloaded on - 09/06/2013 19:11:04 ::: 13 wp.2414.2005+.doc criminal breach of trust and therebycausing loss to the public money etc., committing perjuries before the Hon. MPID Court, lodging false F.I.R. against the Petitioner and his family members and thereby wrongfully arresting him & various offences as enumerated above;
(E) The Respondent Nos.1, 19 & 2 may kindly be directed to take action against the Respondent No. 3 A.P.I. Arun Walzade for having extorted sum of Rs.50,000/- from the family of the Petitioner, while he was in the Police Custody by using illegal means. So also for behaving indecently with the wife of petitioner and trying to outrage her modesty;
(F) The Respondent No. 1 Government of Maharashtra
may kindly be directed to award a monetary
compensation of Rs.10,00,000/- (Rupees Ten
Lakhs Only) to the Petitioner & his family in respect
of physical and mental trauma suffered by him and his family members pursuant to his wrongful arrest in the said matter, handcuffing and other inhuman treatment, extortion and misbehaving with his wife;
(G) Pending the hearing and final disposal of the present Petition, the proceedings of the I C.R. No.103/05 registered with the Khar Police Station, against the Petitioner and his family members may kindly be stayed;
(H) Any other just and equitable order may kindly be passed in favour of the Petitioner."
13. It is apparent that the prayers, as mentioned above asked by Indur Chhugani, are solely based on the premise that the order dated 30.1.2006 is legal and valid and the effect of the said order was to discharge the show cause notice issued against Indur Chhugani dated 22.3.2005. In that view of the matter, no criminal proceedings (being C.R. No.103 of 2005) could be initiated against him, much less for an 13 / 29 ::: Downloaded on - 09/06/2013 19:11:04 ::: 14 wp.2414.2005+.doc offence under Sections 448 & 454 read with Section 34 of Indian Penal Code. In other words, according to Indur Chhugani (petitioner in the writ petition), said criminal proceeding was null and void and there could not have been any action as contemplated in the said C.R. when the show cause notice issued against him in MPID case C.R. No.47/2004 is rendered void and accordingly discharged. In view of this stand taken by Indur Chhugani, it is expedient to deal with the question of validity or otherwise of the order dated 30.1.2006 passed by the then Special Judge under MPID Act & Additional Sessions Judge, Greater Bombay.
Notably, the said order discharging the show cause notice has been challenged by the Punjab National Bank in Criminal Appeal No.688 of 2006 which is under consideration in the present order.
14. In view of the above, the first question is whether the Criminal Appeal No.688/2006 must be allowed or not in the light of the factual position of existence of certain orders of this Court and also on the aspect of the legal provisions of the MPID Act.
15. The final order passed on 30.1.2006 which is impugned in the present Criminal Appeal, reads thus :-
"show-cause notice dated 22.3.2005 issued against the Noticee Mr. I. K. Chhugani is hereby discharged."14 / 29 ::: Downloaded on - 09/06/2013 19:11:04 ::: 15
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16. The circumstances under which the order dated 22.3.2005 issuing show cause notice against Indur Chhugani was passed, are required to be mentioned in order to have clear perspective of the matter in which the action under the MPID Act was sought against Rajkumar Basantani concerning flats No.501 & 502. It is a factual position that though earlier both the said flats were secured on or about 12th October, 2004 under the SARFAESI Act after completing all the legal formalities under Section 14(1)(p) of the said Act, still in C.R. No.47 of 2004 filed by the Economic Offences Wing, attachment of the said flats was sought under Section 8 of the MPID Act. The said application for attachment of the flats belonging to Rajkumar Basantani was made for protecting the interest of depositors in the said C.R. No.47 of 2004. Under these circumstances, an order of attachment dated 19.1.2005 came to be passed by the then Special MPID Court, Mumbai.
Said order dated 19.1.2005 discusses the necessity for invoking the powers under Section 8 of the MPID Act and to effect attachment of the flats in order to secure the interest of the depositors, more so, when it was factual position that Rajkumar Basantani (accused therein) was declared as proclaimed offender and had already left India and red-
corner notice was already issued against him as detailed earlier. The final order passed by the then MPID Court on 19.1.2005 reads thus :
15 / 29 ::: Downloaded on - 09/06/2013 19:11:04 ::: 16wp.2414.2005+.doc " -: ORDER:-
1. Sr.PI, G.B.C.B., CID, E.O.W. Is directed to attach all movable and immovable properties including secured and unsecured properties, as mentioned in the Schedule "A"
annexed to the M.A. No.24/2005. As an attachment of properties by the order of this court passed U/s. 8 of MP.I.D. Act, 1999, to secure the interest of investors/depositors.
2. On the properties attached, a notice be displayed by mentioning that properties have been attached by the order of this court in exercise of powers u/s. 8 of M.P.I.D. Act, 1999 and if any person having any objection to attachment and having any claim, interest in the properties, he can approach to this court and file his objection on 14/2/2005 and order of attachment shall be subject to decision of such objections.
3. The notice of attachment of the properties be given to all concerned persons, calling upon them to appear in court on 14th February, 2005 and to file their written objection to attachment on and before 14th February, 2005.
4. The intimation of order of attachment be given to Registrar of Registration, in whose jurisdiction the property is situated, Municipal Corporation and Society, with directions not to record transfer in respect of said property till further orders from this court.
5. The attested copy of operative part of order, be made available to I.O..
Investigating Officer is directed to take necessary steps forthwith to implement the order."
17. After passing of the above mentioned attachment order, the events those took place are earlier detailed in the preliminary facts given in this order regarding Indur Chhugani and his family members found in actual physical possession of the said flats No.501 & 502 by the Investigating Officer when he made inspection of the flats under the directions of the Court when this fact of Indur Chhugani and his family members found in possession of the flats was brought to the notice of 16 / 29 ::: Downloaded on - 09/06/2013 19:11:04 ::: 17 wp.2414.2005+.doc the then MPID court, detailed Roznama was passed on 22.3.2005. For the sake of clarity of the facts, the said roznama is reproduced hereunder :
" Roznama dated 22.3.2005 "M.A. 116/05, M.A. 146/05, C.R. No.47/04 Mr.R.D. Sawant A.P.P. for State present.
Mr. Narayan Shenoy advocate for Punjab National Bank in M.A. No.116/05 present.
Mrs. Srivastav advocate Bharat Overseas Bank in M.A. No.146/05 present.
Mr. Datta, officer of Bharat Overseas Bank present.
Mr. Shrinivasan officer from Punjab National Bank present. P.S.I. Inamdar, I.O. absent.
At the request of A.P.P. K.B. for submitting report by I.O. in compliance of Court direction.
I.O.
I.O. Inamdar present.
Other appearances as before.
P.S.I. Inamdar has produced on record a report alongwith copy of panchnama drawn.
Perusal of the report clearly shows that in spite of flat being under the order of attachment of this Court and the premises being sealed by I.O. on 8.2.2005, the seal was broken/removed and Mr. Chhugani and his family members have entered into the premises and occupying the flat. As per the statement made by the bank officials as well as Advocate representing the banks the possession of said flat was taken on 12/10/04 through Registrar CMM Court and they had put up their locks and put up the seal over the same and one key each was lying with Official of Punjab National Bank and Official of Bharat Overseas Bank. It is further say of the bank officer present in Court that they have never sold nor Mr. Chhugani or any other person was put in possession of said flat. It is the say of officer of bank that Mr. Chhugani has illegally entered into the premises by removing the lock and key is put by bank officials which was put while taking possession on 12/10/04.
Upon considering these facts it is necessary that I.O. as well as bank officials should lodge the complaint to concern Police Station and concern police to take legal action against 17 / 29 ::: Downloaded on - 09/06/2013 19:11:04 ::: 18 wp.2414.2005+.doc the person concern.
Applicant in M.A. No.116/04 and 146/04 are directed to file detail affidavit stating the factual position and clarify as to whether any bank official had made any detailing in respect of said flat and put Mr. Chhugani and his family members in possession of said flat. Mr. Datta and Mr. Shrinivasan the officials of both the banks are directed to report the matter to their Chairman cum Managing Director on fax and copy of the report send be produced in Court on 23.3.05 and they are further directed to take necessary steps in the matter.
P.S.I. Inamdar is directed to lodge the complaint breaking open of sealed premises and illegal entry of Mr. Chhugani and his family in the property lying in sealed condition and attached as per order of Court.
Senior P.I. Police Station Khar is directed that if complaint is lodged by I.O. or bank officers, then necessary action be taken immediately in respect of the incident of breaking open the lock and seal of premises and act of criminal trespass.
Adjd. For filing affidavit by Applicant No.1 and report by I.O. of action taken by him.
Issue notice to Mr. Indur Chhugani directing him to appear before the Court on 24.3.05 and to explain as to why appropriate proceedings be not initiated against him for removing the seal of property attached by the order of Court and making illegal entry into the property lying attached by the order of the Court.
I.O. is directed to serve the notice to Indur K. Chhugani. Adjd. to 24.3.05."
18. After the above observations of the then MPID Court, the matter was again taken on 24.3.2005 and directions were given to PSI Inamdar to lodge complaint immediately in respect of the incident of Indur Chhugani and his family members found in possession of flats No.501 & 502 which were attached under Section 8 of the MPID Act and when prima facie there was nothing brought before the Court so as to consider the possession of Indur Chhugani and his family members 18 / 29 ::: Downloaded on - 09/06/2013 19:11:04 ::: 19 wp.2414.2005+.doc being legal.
19. We have observed that the matter was then taken before the another Judge holding the charge of the MPID Court and the impugned order dated 30.1.2006 was passed by which show cause notice issued against Indur Chhugani was discharged. Considering the provisions of Section 8 of the MPID Act and considering the material brought before the MPID Court during January & March, 2005, it cannot be said that there was any error committed by the earlier MPID Court in issuing a show-cause notice against Indur Chhugani. In other words, we must say that another MPID Court while passing the impugned order dated 30th January, 2006 erred in accepting the plea of Indur Chhugani that issuance of show-cause notice against him presupposes that there was no attachment of flats No.501 & 502. It must be said that another MPID Court while passing the order dated 30.1.2006 over-looked the effect of order passed by this Court on 12.12.2005 (Coram: D.G. Deshpande & V.M. Kanade,JJ.). The said order dated 12.12.2005 was passed in the present Criminal Writ Petition No.2414/2005 when application No.7912/2005 was preferred by petitioner - Indur Chhugani for protecting the possession of the petitioner in respect of flats No.501 &
502. In the order of this Court on the said Criminal application No.7912/2005, it is amply clear that two flats were attached by MPID 19 / 29 ::: Downloaded on - 09/06/2013 19:11:04 ::: 20 wp.2414.2005+.doc Court on 19.1.2005 and subsequently the petitioner was found in possession of said two flats and on that premise, show-cause notice was issued against him.
20. During hearing of the said application of Indur Chhugani praying for protection of the possession, an attempt has been made by him to produce certain documents as to payment of amount by D.D. to the concerned bank and certain correspondence entered by him with the banks. It must be said that the said documents regarding correspondence with the banks, produced and relied by Indur Chhugani was not accepted as reliable evidence and it was the observation of this Court that those documents were self-created evidence and they were all one-sided and depict what the petitioner did. It was further observed by this Court that there was no legal transaction by which said flats were validly transferred to the petitioner Indur Chhugani by the concerned banks in any manner much less conveying the title. Finally, this Court has observed that there was no case of giving protection to the petitioner Indur Chhugani with respect to his possession over the said flats and hence said Application No.7912 of 2005 was rejected and even the prayer for stay of the said order was rejected. It is significant to note that the order of this Court on said application is dated 12.12.2005 and in spite of passing of such order, subsequently the order dated 20 / 29 ::: Downloaded on - 09/06/2013 19:11:04 ::: 21 wp.2414.2005+.doc 30.1.2006 was passed by another MPID Court, which is an order impugned in the present Criminal Appeal No.688 of 2006 under consideration.
21. At the cost of repetition, we must mention that very categorical observations were made by another Division Bench of the High Court while passing order dated 12/12/2005 (D.G. Deshpande and V.M. Kanade, JJ.). Certain observations including narration of the case of the petitioner from the said order dated 12/12/2005 are reproduced hereunder :
"It is the case of the petitioner that respondent nos.5 and 10 invited bids for selling these two flats. He took part and offered his bid and it is his further case that his bid was accepted by both these respondents. He made payment to them and then he was placed in possession by these two respondents. These facts are denied by the Advocates for both these respondents........"
"We must clearly say that not a single letter is there in possession of the petitioner showing that his bid was accepted by any of the respondents referred to above; that they intended to sell the property to him; that they had accepted the Demand Draft towards purchase money and there are no other writing or letter from any of these two banks placing or handing over the possession of these two flats to the petitioner. All these four documents are self created evidence. They are all one sided. They depict what the petitioner did. But no transaction is complete without the concurrence and consent of other side........"
"It is prima facie clear that the seal of the flats was broken by this petitioner and he forced his entry in the same. No 21 / 29 ::: Downloaded on - 09/06/2013 19:11:04 ::: 22 wp.2414.2005+.doc protection can be given to him. Therefore, his application is rejected."
22. In view of the above order of this Court rejecting Criminal Application No.7912 of 2005, the MPID Court could not have reappraised the situation in different perspective and to come to the conclusion that there was no attachment under Section 8 of the MPID Act concerning flat Nos.501 & 502. It must be said that the concerned MPID Court while passing the impugned order dated 30.1.2006 has fallen in error in reappraising the facts and coming to the conclusion other than non-availability of any material against Indur Chhugani.
23. The fallacious observations of the then MPID Court are reproduced hereunder which are at paragraph No.23 of the said order dated 30.1.2006 :
"23. In the light of the above discussion, there is no convincing material available on record against the noticee Chhugani regarding the alleged removing of seal of property attached by the order of the Court and making illegal entry into the property attached by the Court and especially in the light of registration of F.I.R. into the matter which is pending investigation. The said show-cause dated 22.3.2005 is hereby discharged."
24. At the cost of repetition, the factual position is to the effect that prior to the impugned order dated 30.1.2006 discharging the show-
22 / 29 ::: Downloaded on - 09/06/2013 19:11:04 ::: 23wp.2414.2005+.doc cause notice, there was order of this Court in Criminal Application No.7912/2005 dated 12.12.2005 as mentioned earlier. Moreover, said order of this Court has not been challenged by the petitioner - Indur Chhugani and the same has attained finality. This factual aspect cannot be over-looked by us while deciding the present matters.
25. It also cannot be over-looked that the directions for initiating criminal proceedings against Indur Chhugani and his family members, were given by the MPID Court vide order dated 22nd March, 2005 and such directions were given on the factual position of Indur Chhugani and his family members found in actual physical possession of the flats No.501 & 502 without there being any valid documents for such possession, more so when the said flats were already attached under Section 8 of the MPID Act vide order dated 19.7.2005. As such, the argument on behalf of the petitioner Indur Chhugani that the criminal complaint was malafide, cannot be sustained. The petitioner cannot rely on the order dated 30.1.2006 which is impugned in the criminal appeal, as in our considered opinion, the said order cannot be sustained and the same is accordingly required to be set aside allowing the present criminal appeal preferred by Punjab National Bank.
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26. Now, coming to the specific prayers in Criminal Writ Petition No.2414 of 2005 asked by the petitioner Indur Chhugani, it must be reiterated that the order of attachment of flats No.501 & 502 dated 19.1.2005 is legal and valid and the same has not been set aside by any Court and in fact said order has not been challenged and as such there is nothing to doubt the prosecution lodged against the petitioner Indur Chhugani vide C.R. No.103 of 2005 registered with Khar police station for the offences punishable under Section 448 & 454 read with Section 34 of Indian Penal Code.
27. During the arguments, much emphasis was placed by Indur Chhugani in his written and oral submissions that there cannot be a charge for offences punishable under Sections 448 & 454 read with Section 34 of Indian Penal Code against him and his family members with respect to his possession over flats No.501 & 502. On this aspect, considering the offences mentioned in the relevant sections and considering that the matter is still at the investigation stage and after thorough investigation the final charge-sheet is yet to be filed and considering that finally it would be for the trial Court to frame the charges against the accused person by applying appropriate penal provisions, it would be inappropriate to allow the prayer of the petitioner of quashing the said criminal proceedings for specific charges under 24 / 29 ::: Downloaded on - 09/06/2013 19:11:04 ::: 25 wp.2414.2005+.doc Section 448 and 454 read with Section 34 of Indian Penal Code. In other words, whether or not a particular section is applicable against the accused is the job of the competent Court before which the charge-
sheet would be filed after investing agency places entire available material before the Court. In the present matter, after completion of the investigation, we have no doubt, that the trial Court would consider the said material and frame appropriate charges against Indur Chhugani and his family members.ig
28. So far as the allegations against the Police Officer Walzade and others regarding handcuffing of the petitioner Indur Kartar Chhugani while he was being taken to the Court after remand after his arrest in C.R. No. 103/2005 are concerned, we have gone through the rival submissions and also the relevant record as to remand report and order of the Court on such remand application. Nowhere it is found that the petitioner had made any grievance before the concerned Court that he was handcuffed while bringing to the Court from the Police Station.
Absence of any such contemporaneous complaint presupposes that there was no such manhandling and handcuffing of the petitioner.
Moreover, it is a question of fact finding and such plea cannot be entertained at this belated stage.
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29. There is also another argument advanced by the petitioner regarding alleged indecent behaviour with his wife at the hands of Police Officer Walzade (respondent no.3 in the criminal writ petition). It is alleged that the said respondent tried to outrage the modesty of the wife of the petitioner and at times asked her to come alone to the Police Station for recording her statement. Again on this aspect also, we have gone through the material produced before us including the relevant station diary entries. Apparently from the record, there is nothing to support the allegation that the respondent No.3 wanted the wife of the petitioner to remain present alone and meet her in seclusion, except the bare words of the petitioner and his wife. No such contemporaneous complaint was made to any Authority or even to the concerned Court, which was dealing with the remand application in C.R. No.103/2005.
Such allegations are intended to deviate the real case against the petitioner. It is bordering on after thought grievance made out of ulterior purpose and cannot be accepted.
30. Now coming to the question of recovering the possession of the property in Flat Nos.501 and 502 from the petitioner certain argument of State are to be detailed. During arguments, the learned APP placed reliance on the judgment of the Hon'ble Apex Court in Teeka 26 / 29 ::: Downloaded on - 09/06/2013 19:11:04 ::: 27 wp.2414.2005+.doc and others vs. The State of Uttar Pradesh (AIR 1961 SC 803, para 13 thereof). By pointing out the ratio propounded in the above authority, it is submitted that where a property has been legally attached by a Court, the possession of the same passes from the owner to the Court or its agent. In that situation, the owner of the said property cannot take the law into his own hands, but can file a claim petition to enforce his rights.
If he resorts to force to get back his property, he acts unlawfully and by taking the property from the legal possession of the Court or its agent, he is causing wrongful loss to the Court. As long as the attachment is subsisting, he is not entitled to the possession of the property, and by taking that property by unlawful means, he is causing wrongful gain to himself.
31. The petitioner in person contended that there was no attachment of Flat Nos. 501 and 502 under Section 8 of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999 and as such, all further steps and consequential proceedings would not be legal and valid and as such, no action shall lie against the petitioner and his family members only on the basis of his possession over the said flats. In support of this submission, reliance is placed on the judgment of the Hon'ble Apex Court in State of Punjab vs. Davinder Pal Singh Bhullar and others (2011 STPL (Web) 27 / 29 ::: Downloaded on - 09/06/2013 19:11:04 ::: 28 wp.2414.2005+.doc 1035 SC). The petitioner heavily relies on para 72 of this decision. The same reads thus:
"72. It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order."
32. However, considering the overall fact situation of the matter at hand, in our considered view, as we have already mentioned, there was a valid and legal attachment of Flat Nos. 501 and 502 under the order of the Special M.P.I.D. Court and in fact, the possession of the petitioner over the said flats is and was always illegal right from the inception. This has been found by this Court and that finding has attained finality. Thus, at the cost of repetition, it must be mentioned that there is no substance in the arguments of the petitioner.
ORDER:
33. Under the above circumstances, we hold that the criminal appeal filed by the Punjab National Bank must succeed and we hereby quash and set aside the order dated 30/1/2006 in C.R. No.47 of 2004 passed by the M.P.I.D. Court discharging Indur Chhugani (respondent No.1 in criminal appeal). We also direct the respondent no.1 to forthwith vacate the said Flat Nos. 501 and 502 and surrender possession thereof 28 / 29 ::: Downloaded on - 09/06/2013 19:11:04 ::: 29 wp.2414.2005+.doc to the Authority of M.P.I.D. Court and the said M.P.I.D. Court shall deal with the pending proceedings in accordance with law.
34. The Criminal Writ Petition preferred by Indur Kartar Chhugani is dismissed. Rule is discharged.
35. Both matters disposed of on the above terms.
(A. R. JOSHI, J.) (A.M. KHANWILKAR, J.)
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