Allahabad High Court
Rakesh Manik And 3 Others vs State Of U P And 3 Others on 8 October, 2020
Bench: Pankaj Naqvi, Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 43 Case :- CRIMINAL MISC. WRIT PETITION No. - 9314 of 2020 Petitioner :- Rakesh Manik And 3 Others Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Prakash Chandra Srivastava Counsel for Respondent :- G.A.,Vinayak Mithal Hon'ble Pankaj Naqvi,J.
Hon'ble Vivek Agarwal,J.
Supplementary filed today is taken on record.
Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri P.C. Srivastava, for the petitioners, Sri Vinayak Mithal, learned counsel along with Sri Pranshu Gupta for the respondent no.4 and Sri Deepak Mishra, learned AGA for the State. With the consent of all, this petition is being finally decided under the "rules of the Court"
1. This petition has been filed by the Petitioners/ Officials of the Bank of Baroda seeking quashment of FIR dated 20.08.2020 registering Case Crime No.636 of 2020 at Police Station-Medical College, District-Meerut under the provisions of Sections 409, 420, 467, 468, 471, 120-B and 455 IPC.
2. Learned counsel for the petitioners submits that this FIR has been registered by the auction purchaser namely, Mahesh Chandra Sharma against the present petitioners and also against the owners of the property, from whom the property in question has been purchased by the informant-auction purchaser.
3. Petitioners' contention is that certain loans were advanced in favour of one M/s Saturn Agro Chemical, and in view of such loans M/s Saturn Agro Chemical had mortgaged House No.H-92 situated at Block-H, Scheme No.3, Shastri Nagar, Meerut. This property is in the name of Prabhat Kumar Rastogi and Smt. Chitra Rastogi. It is also an admitted position that Shivam Rastogi son of Prabhat Kumar Rastogi is the Proprietor of the said firm, whereas Prabhat Kumar Rastogi and Chitra Rastogi so also one Sri Anant Rastogi were the guarantors for the loan of Rs.50,00,000/-(fifty lakhs only).
4. In default of re-payment of loan, a notice was issued under Section 14 of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short "SARFAESI Act").
5. Prior to this, notice was given to the loanee on 31.07.2018 under the provisions of Section 13(2) of SARFAESI Act and on 05.01.2018, notice for taking possession was given under the provisions of Section 13(4) and, thereafter, notices were published in the newspaper.
6. After publication of notice in the newspaper, auction of the mortgaged property was carried out, in which informant turned out to be a successful bidder.
7. Informant's case is that M/s Saturn Agro Chemical had approached the Debts Recovery Tribunal, Lucknow which had vide order dated 21.12.2018 injuncted the Bank to issue a sale certificate in favour of the auction purchaser and granted time to the loanee-M/s Saturn Agro Chemical to clear the dues of the Bank upto 31.03.2019. Thus, till 31.03.2019, Bank was prohibited by the Debts Recovery Tribunal, Lucknow to not to issue a sale certificate in favour of the informant. Informant's case is that though Bank was having knowledge of order dated 21.12.2018, yet auction was carried on 28.12.2018, and prior to that, as per the terms of the auction, he was made to deposit earnest money to the tune of 10% of the sale consideration of the property on 27.12.2018.
8. Since, informant was the highest bidder, therefore, he had deposited 15% of the bid amount through R.T.G.S. on 29.12.2018.
9. Informant, thereafter, had approached Bank of Baroda, ROSARB, Mangal Pandey Nagar to enquire about the further proceedings, wherein petitioner no.4 informed him that matter is pending consideration before the DRT, Lucknow and DRT has injuncted the Bank vide order dated 21.12.2018 to not to issue the sale certificate, therefore, they are not in a position to issue a sale certificate till 31.03.2019.
10. Informant's contention is that despite there being injunction on issuance of sale certificate, informant was coerced to deposit remaining sum of bid amount. He deposited the said amount after obtaining loan from Bank of Baroda on 25.03.2019, but Bank did not issue the sale certificate.
11. In the meanwhile, DRT, Lucknow on 31st May, 2019 ordered that if the loanee fails to pay his complete loan amount along with expenses by 15th June, 2019, then Bank can issue sale certificate, as a result, sale certificate was issued in favour of the informant on 17.06.2019. It is informant's allegation that in the letter of sale certificate, petitioner no.1 had arbitarily erased out the noting about handing over of the possession.
12. Informant further averred in his FIR that, though, the possession of the property was in favour of the Bank and it was being looked after by the security agency appointed by the Bank, yet possession had not been handed over to the compalainant despite issuance of sale certificate, due to the fact that bank authorities who were put in possession of the property in question by the District Administration, fraudulently parted with it in favour of the loanee, as a result, informant lodged FIR against the present petitioners along with the borrowers and the guarantors.
13. Learned counsel for the petitioners' submits that there is no element of criminality on the part of the petitioners and they have been falsely implicated so as to pressurize the Bank to use its resources to get possession of the property.
14. It is submitted that prior to the lodging of the impugned FIR on 20.08.2020, security agency of the Bank namely, Khalsa Security Surya City, Rohata Road through Santosh Singh son of Chetan Singh had lodged a report at Police Station-Nauchandi, District-Meerut on 11.08.2019 against the borrower namely, Shivam Rastogi under the provisions of Sections 147, 447, 341, 427 IPC alleging that on 11.08.2019, 20-25 persons along with Shivam Rastogi had trespassed the property, possession of which was handed over to the Bank and had forcefully taken possession.
15. Learned counsel for the petitioners' submits that as Bank of Baroda has already filed a civil suit no.127 of 2020 in the Court of learned Civil Judge (Sr. Division), Meerut against M/s Saturn Agro Chemical and others for dispossessing Shivam Rastogi and the case is still pending, no usefule purpose would be served in drawing parallel criminal proceedings under the impugned FIR. It is also submitted that petitioners are not having any criminal history and ingredients of Sections 409, 420, 467, 468, 471, 455 and 120-B IPC are not made out, therefore, the FIR be quashed.
16. Learned counsel for the petitioners also places reliance on the judgment of Supreme Court in case of Priyanka Srivastava and others Vs. State of U.P. and others as reported in (2015) 6 SCC 287, wherein reproducing Section 32 of the SARFAESI Act, it has been held that no suit, prosecution or other legal proceedings shall lie against any secured creditor or any of his officers or manager exercising any of the rights of the secured creditor or borrower for anything done or omitted to be done in good faith under this Act.
17. Sri Vinayak Mithal, learned counsel for respondent no.4, i.e. the informant, opposes the plea and submits that the petitioners are in collusion with the borrower and with a view to defraud the interest of the informant-respondent no.4, fact of DRT order was not disclosed prior to the auction, and secondly the principles of caveat venditor will be applicable in the present case, rendering Priyanka Srivastava (supra) inapplicable.
18. Sri Mithal places reliance on the judgment of Division Bench of this Court in case of Smt. Rekha Sahu Vs. The UCO Bank and others in Writ Petition No.11774 (M/B) of 2010 on 20.08.2013 and submits that petition was allowed and respondent-Bank was directed to pay cost of Rs.1,00,000/- besides, municipal taxes, electricity charges outstandings against the property till the date of issuance of sale certificate together with interest/penalty.
19. Sri Deepak Mishra, learned AGA submits that in any case, if informant has any remedy, he can seek damages by taking recourse to appropriate proceedings and the judgment in case of Smt. Rekha Sahu (supra) is not applicable to the facts and circumstances of the present case, as court is dealing with a criminal writ petition.
20. After hearing learned counsel for the parties and going through the records, it is apparent that possession of the mortgaged property was handed over to the Bank on 30.10.2018 at 12:50 p.m. Notice for auction was published in vernacular daily and Times of India on 23.11.2018. Date of auction was fixed as 28.12.2018. Order of the DRT, Lucknow was passed on 21.12.2018 granting time to the borrower to pay the dues till 31.03.2018, which was later on extended till 15.06.2019.
21. Though, petitioners have not enclosed copy of the order of DRT, Lucknow, but from the language of the FIR, it is apparent that there was no stay in favour of the borrower restraining the Bank from proceeding with the auction proceedings, but stay was only to the effect that Bank was injuncted to issue sale certicate till 31.03.2019. Later on, this period was extended to 15.06.2019.
22. It has also come on record that security agency of the Bank had lodged a FIR on 11.08.2019, when Shivam Rastogi along with 20-25 unknown persons had forceably taken possession of the mortgaged property.
23. It has also come on record that sale letter was executed and registered in favour of the informant on 31st July, 2019. This chronology clearly explains that since, there was no stay of auction proceedings, allegation of the informant that he was kept in dark and was unaware of the fact that DRT, Lucknow had injuncted the Bank from issuing the sale letter, which Bank was otherwise obliged to inform him will not constitute criminal breach of trust as defined under Section 405 IPC so to constitute an offence under Section 409 IPC.
24. Similarly, ingredients of Section 415 so to constitute an offence under Section 420 will not be made out, when the informant has failed to show that there was any stay of auction, then it cannot be said that offence of cheating or dis-honestly inducing the informant to pay the sum of auction money would constitute an offence under Section 420 IPC.
25. As far Section 455 IPC is concerned, it may be made out against other accused persons, but not against the present petitioners, who are Bank officials, as allegation of house trespass is against Shivam Rastogi and 20-25 unknown persons who accompanied him as is apparent from the FIR lodged by the security agency deployed by the Bank.
26. Similarly offence under Sections 467, 468, 471 IPC are also not made out against the present petitioners, inasmuch as, it is not the case of the petitioners that later on sale certificate was tampered with or factum of possession erased without the knowledge of the informant. In fact, it is informant's case that while handing over the sale certificate, factum of possession was erased from the body of the sale letter and, therefore, in absence of ingredients of Section 463 IPC, no offence under Sections 467, 468 and 471 IPC is made out.
27. Similarly, there are no ingredients to show meeting of the mind of the present petitioners with other co-accused so to constitute an offence under Section 120-B. In fact to establish a charge of conspiracy within the ambit of under Section 120-B IPC, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. For reference, the law laid down in case of Sanjeev Kumar Vs. State of Himachal Pradesh as reported in AIR 1999 SC 782 is relevant.
28. When these provisions are read in the light of the judgment rendered in case of Priyanka Srivastava (supra) so also in the light of provisions of Section 32 of the SARFAESI Act, which provides protection to any secured creditor or any of his officers for the action taken in good faith, no element of criminality can be attached so to sustain the FIR against the present petitioners. Therefore, petition is allowed. FIR registering Case Crime No.636 of 2020 against the petitioners namely; Rakesh Manik, Brijesh Pathak, Darshan Kumar and Arun Kumar Bhargav who were officials of Bank of Baroda is quashed.
29. However, liberty is reserved in favour of the informant to pursue his complaint against the private respondents, who are not before us.
30. Liberty is also reserved in favour of the informant-respondent no.4 that he will be free to pursue his remedy to seek damages against the private respondents so also the officials of the Bank, if so advised in the light of the law laid down in case of Smt. Rekha Sahu (supra) for not handing over the possession of the property along with the registration of sale certificate on 31.07.2019 on the pretext of removing their goods, when Shivam Rastogi and others had caused trespass in the property.
31. For this purpose, informant is free to initiate appropriate proceedings in courts of competent jurisdiction. The competent court would be free to fix individual responsibility including that of present petitioners and will not be guided by the result of the present petition, as we have only quashed the FIR upholding the contention of the petitioners that they are not criminally liable for their acts of discharge of duty either bona fidely or for their acts of omission in not preserving the possession of the property and have not dealt with the issue of their civil liability to pay the damages.
32. The petition is allowed.
33. The FIR dated 20.08.2020 registering Case Crime No.636 of 2020 at Police Station-Medical College, District-Meerut under the provisions of Sections 409, 420, 467, 468, 471, 120-B and 455 IPC is quashed.
Order Date :- 8.10.2020 Ashutosh