Delhi High Court - Orders
Sudhir Kumar & Ors vs State Of Nct Of Delhi & Ors on 15 September, 2022
Author: Anoop Kumar Mendiratta
Bench: Anoop Kumar Mendiratta
$~39
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 2152/2022 & CRL.M.A. 18607/2022 (stay)
SUDHIR KUMAR & ORS. ..... Petitioners
Through: Mr. Ramji Srinivasan & Ms. Rebecca
John, Sr. Advocates with Ms.Naomi
Chanra, Mr. Apporv Sarvaria,
Ms.Yashika Sarvaria, Ms.Kheyali
Singh, Ms. Ankita Bhattacharya and
Ms.Adyaa R. Luthra, Advocates.
versus
STATE OF NCT OF DELHI & ORS. ..... Respondents
Through: Mr.Anand V. Khatri, ASC for State
with Insp. Ravi Kumar, PS: BK Road.
Mr.Tanvir Ahmad Mir, Ms.Jyoti
Taneja, Mr.Vidur Kamra, Mr.Vaibhav
Suri, Mr.Dinesh Moorjani and
Mr.Akash Verma, Advocates for
Respondent No.2 & 3.
CORAM:
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
ORDER
% 15.09.2022 CRL.M.A. 18608/2022 Allowed, subject to all just exceptions.
Application is accordingly disposed of.
W.P.(CRL) 2152/2022 & CRL.M.A. 18607/2022 (stay)
1. Petition has been preferred on behalf of the petitioners under Article 226 of the Constitution of India read with Section 482 Cr.P.C. for quashing of FIR No.106/2022, under Sections 409/120B I.P.C. registered at Police Station: Barakhamba Road against the petitioners and the proceedings Signature Not Verified Digitally Signed W.P.(CRL) 2152/2022 & CRL.M.A. 18607/2022 Page 1 of 7 By:DINESH CHANDRA Signing Date:16.09.2022 19:42:03 emanating therefrom.
2. Issue notice. Learned ASC for the State as well as learned counsel for respondent No.2 & 3 appear on advance notice and accept notice.
3. Status report/reply be filed within four weeks with an advance copy to the learned counsels for the petitioners.
4. Learned counsels for the petitioners pray for stay of investigation. i. In brief, as per case of the petitioners, respondent No.2 (L R Builders Pvt. Ltd.) is the guarantor in the loans granted by the petitioner bank to partnership concerns i.e. PP Jewellers (Exports) and M/s PP Jewellers (Delhi), belonging to the family of Kamal Kumar Gupta. In PP Jewellers (Exports), Kamal Kumar Gupta with his wife Veena Gupta is the partner and in other firm M/s PP Jewellers (Delhi), Kamal Kumar Gupta is the partner along with his relative Mukesh Gupta. Respondent No.2 company is also stated to be promoted and managed by the family of Kamal Kumar Gupta and the loan documents in favour of the bank, on behalf of respondent No.2 has been executed by Kamal Kumar Gupta.
ii. It is further the case of the petitioners that the partnership concern of Kamal Kumar Gupta and his wife Veena Gupta is availing loans from SBI since September, 2007 and when the bank sanctioned loan of Rs.56 crores, respondent No.2 stood surety, executed the guarantee agreement and also mortgaged property number H-5, Netaji Subhash Place, New Delhi with deposit of original title deeds on 12.09.2007. Respondent No.2 is further stated to have confirmed the creation of mortgage vide letter dated 12.09.2007, therein specifically confirming that said mortgage shall also be security for all the indebtedness, past, Signature Not Verified Digitally Signed W.P.(CRL) 2152/2022 & CRL.M.A. 18607/2022 Page 2 of 7 By:DINESH CHANDRA Signing Date:16.09.2022 19:42:03 present and future towards the bank. The loan amount is stated to have become irregular on 22.02.2017, constraining the petitioner bank to file a suit for recovery against the borrowers, respondent No.2 and other guarantors vide OA No.298/2017. The said loan is stated to have been settled under the OTS scheme of the bank in 2020-2021 and OA was accordingly withdrawn on 14.06.2021.
iii. Further, the loan limit of Rs.100 crores is stated to have been sanctioned as loan (I) by the Overseas Branch of SBI (Rs.40 crores) and (II) by State Bank of Bikaner and Jaipur (Rs.60 crores). State Bank of Bikaner and Jaipur is stated to have merged with SBI. Further, loan amount of Rs.40 crores, referred to above, is also stated to have become bad/irregular, in respect of which, SBI filed a suit/OA for Rs.24,69,00,073.04 against the borrowers, respondent No.2 as guarantor and others, which is pending before DRT-II. In the aforesaid OA, DRT-II passed the order restraining respondent No.2 from creating any third party interest or dealing with property in any manner.
iv. The loan of Rs.60 crores granted by SBBJ on 01.02.2012 is also stated to have become bad/irregular, in respect of which, suit/OA for Rs.62,86,96,292.98 was filed against the borrowers, respondent No.2 as guarantor and others, which is pending before DRT-III.
5. It is also pointed out by learned counsels for the petitioners that directions had been issued by learned MM vide order dated 02.09.2021 under Section 156(3) Cr.P.C. for taking custody of original title deeds of property, which was challenged in WP(CRL) 1726/2021. Reference is also made to order dated 21.01.2022 passed in said writ petition, which was disposed of by Signature Not Verified Digitally Signed W.P.(CRL) 2152/2022 & CRL.M.A. 18607/2022 Page 3 of 7 By:DINESH CHANDRA Signing Date:16.09.2022 19:42:03 this Court observing as under:-
"7. Vide order dated 02.09.2021, Metropolitan Magistrate directed the IO to take custody of the property documents of respondent no. 3 who is the guarantor to the loan without assigning any reasons for the same. It is also not the case that any fraud or forgery has been committed in regard to documents, order in respect of which has been passed by Metropolitan Magistrate. In the order dated 02.09.2021, Metropolitan Magistrate has observed that the complainant i.e respondent no. 3 herein has apprehension that original title deeds may be destroyed or used for ulterior purpose but Metropolitan Magistrate without due application of mind and assigning proper reason directed the IO to take the custody of the original documents, totally disregarding the fact that bank is retaining the documents as a security for a loan of Rs.145.48/- Crores and why the bank officials would destroy or use those documents for ulterior purposes as apprehended by respondent no. 3 and invite legal action against them. The petitioner bank being the secured creditor has lien over the property as mentioned in the judgment of Raj Kumar & Anr. V. Syndicate Bank (2016) SCC Online DEL 4726.
8. Therefore, this part of the order of Metropolitan Magistrate wherein it has been directed that documents be handed over to IO is set aside. And in case IO requires those documents for any investigation purposes, he can move the court for such permission or he can approach the bank manager for investigation in regard to property documents in question after citing valid reason for requiring the same"
6. The present FIR No.106/2022, under Sections 409/120B I.P.C. is stated to have been registered despite order dated 21.01.2022, against the petitioners who are the three bank officers of SBI based upon the allegation of the complainant/Rahul Gupta (Respondent No.3, who is director of LR Builders Pvt. Ltd./Respondent No.2), alleging that bank officials have conspired with Kamal Kumar Gupta of PP Jewellers (Exports) and PP Jewellers (Delhi) and Signature Not Verified Digitally Signed W.P.(CRL) 2152/2022 & CRL.M.A. 18607/2022 Page 4 of 7 By:DINESH CHANDRA Signing Date:16.09.2022 19:42:03 have committed criminal breach of trust by not releasing the subject property of the complainant/LR Builders Pvt. Ltd. (Respondent No.2).
7. The contention raised by the learned senior counsels for the petitioners is that State Bank of India (SBI) being the secured creditor has exercised lien over the property H-5, Netaji Subhash Place, New Delhi and the bank is retaining the title documents only as a security for the loan. Further, the documents are being used in accordance with the terms and conditions of various loan agreements entered between guarantor and SBI and attachment applications have been filed before DRT-II and DRT-III. It is also submitted that FIR is in violation of order dated 12.04.2021 passed by DRT in OA No.364/2016, whereby respondent No.2 was restrained from creating any third party interest or dealing with the property in any manner. In nutshell, the dispute between the parties is stated to be of civil nature.
Reliance is further placed by learned senior counsels for the petitioners on letter of confirmation for creation of mortgage by deposit of title-deeds from LR Builders Pvt. Ltd. (Respondent No.2) to the Branch Manager, SBI, wherein in para 2, it has been observed as under:
"2. We confirm that the said security shall also be for all other liabilities and indebtedness past, present and further to the Bank and shall subsist and continue notwithstanding the granting of totally new limits and facilities and / or account/s coming into credit and / or inter-changeability of limits and / or cancellation of limits, etc."
Learned counsels for the petitioners pray that investigation in the present proceedings may be stayed since prima facie the proceedings between the parties are of civil nature and also various OAs in this regard are pending before the DRT.
8. On the other hand, learned counsel for respondent No.2 & 3 opposes Signature Not Verified Digitally Signed W.P.(CRL) 2152/2022 & CRL.M.A. 18607/2022 Page 5 of 7 By:DINESH CHANDRA Signing Date:16.09.2022 19:42:03 the application for stay of proceedings.
It is contended by learned counsel for the respondents that the documents relating to the property in question have been unlawfully retained by the bank officials despite the fact that the same had only been handed over as a guarantee in respect of loan for Rs.56 crores which already stands discharged by way of one-time settlement. It is also urged that documents of the aforesaid property cannot be unlawfully retained by the bank officials towards any other loan amount.
Reliance is also placed upon 'M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and Others' (2021) SCC OnLine SC 315 to contend that investigation can only be stayed in the rarest of rare cases and the present case does not fall in the aforesaid category.
9. I have given considered thought to the contentions raised.
It may be observed that criminal proceedings, at times, are used as a tool to resolve primarily civil disputes between the parties. There may be hairline difference between the matters of civil nature and matters falling under criminal breach of trust. As such, the documents need to be examined thoroughly to reach a fair conclusion as under the garb of criminal litigation, none of the parties can be permitted to take an unfair advantage.
It is pertinent to note that the petitioners have not been acting in any personal capacity but as officers of SBI, for the purpose of securing and safeguarding the interest of SBI in respect of various loans which stand extended to PP Jewellers (Delhi) as detailed above. Various OAs and civil proceedings in this regard are pending before DRT and an interim order dated 12.04.2021 was passed in OA 364/2021.
The dispute whether the aforesaid documents can be retained or not, Signature Not Verified Digitally Signed W.P.(CRL) 2152/2022 & CRL.M.A. 18607/2022 Page 6 of 7 By:DINESH CHANDRA Signing Date:16.09.2022 19:42:03 towards securing of the loan amounts extended to PP Jewellers (Delhi) also is under consideration before civil forums.
Considering the facts and circumstances, it may be appropriate that interim protection is granted to the petitioners, till the disposal of their application for anticipatory bail by the concerned ASJ, which is listed for 19.09.2022, to avoid any prejudice to the parties. The matter can be considered in proper perspective after the reply is filed on behalf of the respondents.
Accordingly, no coercive action shall be taken against the petitioners till the disposal of anticipatory bail application filed by the petitioners before learned ASJ and a week thereafter, in case the same is decided against the petitioners.
List on 06.12.2022.
Nothing stated herein shall tantamount to an expression on the merits of the case and for the consideration of anticipatory bail application pending before the learned ASJ.
A copy of this order be forwarded to learned ASJ for information and compliance.
ANOOP KUMAR MENDIRATTA, J.
SEPTEMBER 15, 2022/R Signature Not Verified Digitally Signed W.P.(CRL) 2152/2022 & CRL.M.A. 18607/2022 Page 7 of 7 By:DINESH CHANDRA Signing Date:16.09.2022 19:42:03