Gauhati High Court
Rupa Borah vs The State Of Assam 9 Ors on 5 February, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana, Malasri Nandi
Page No.# 1/11
GAHC010057432024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : W.P.(Crl.)/9/2024
RUPA BORAH
W/O- LATE GHANA KANTA BORAH,
HOUSE NO.90, KACHALUKHOWA,
OPP. HOUSING COLONY,
DISTRICT- NAGAON, ASSAM,
PIN- 782001.
VERSUS
THE STATE OF ASSAM 9 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM,
HOME AND POLITICAL DEPARTMENT,
DISPUR, GUWAHATI- 781006,
KAMRUP(M), ASSAM.
2:THE DIRECTOR GENERAL OF POLICE
ASSAM
ASSAM POLICE HEADQUARTERS
ULUBARI
GUWAHATI-07.
3:SUPERINTENDENT OF POLICE
NAGAON
ASSAM
PIN- 782001.
4:ADDITIONAL SUPERINTENDENT OF POLICE
CRIME BRANCH
NAGAON
ASSAM.
Page No.# 2/11
5:OFFICER IN CHARGE
NAGAON SADAR POLICE STATION
NAGAON
ASSAM.
6:OFFICER IN CHARGE
HAIBARGAON POLICE STATION OUTPOST
DIST. NAGAON
ASSAM.
7:INVESTIGATING OFFICER
HAIBARGAON POLICE STATION OUTPOST
DIST.- NAGAON
ASSAM.
8:THE CHIEF MANAGER AND AUTHORIZED OFFICER
CANARA BANK
NAGAON BRANCH
VIP ROAD
CHRISTIAN PATTY
NAGAON
ASSAM- 782001.
9:THE ASSISTANT GENERAL MANAGER OF THE SPECIALISED ARM
BRANCH
CANARA BANK
CIRCLE OFFICE GUWAHATI
1ST FLOOR DEE BEE GRADE
SIX MILES
GUWAHATI- 22.
10:VISHAL AGARWAL
PROPRIETOR/ DIRECTOR OF M/S R.D. MOTORS PVT. LTD.
NAGAON
ASSAM- 782002
Advocate for the Petitioner : MS. T SOM, MR. P TELI
Advocate for the Respondent : GA, ASSAM,
Page No.# 3/11
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
05.02.2025 (K.R. Surana, J) Heard Mr. R.P. Sharma, learned Senior Counsel assisted by Mr. T. Som, learned counsel for petitioner. Also heard Mr. P. Sarma, learned Addl. Senior Government Advocate appearing for the State Respondent Nos. 1 to 7. There is no representation from respondent nos. 8 to 10.
2. The case of the petitioner, in brief, is that her son, namely, Hriday Borah, in course of his business through his firm, availed financial accomodation under the "Contractor's Scheme" of Canara Bank, allegedly without collaterals.
3. It is projected that at the instigation of the bank officials, her son had purchased certain machineries from the vendors recommended from the bank. Initially, the loan account operations were in order, but in due course of time, the account of the firm of the son of the petitioner became a Non- Performing Asset (NPA, for short).
4. It is projected that it is because of the certain assurances given by the Officers of the bank, the son of the petitioner was made to invest in various machineries and equipments. However, in the meanwhile, due to Covid-19 pandemic and the enforcement of the GST Regime, the business of the petitioner's son had suffered huge loss.
5. It is also projected that in order to recover the loan, the concerned Page No.# 4/11 bank had filed OA.241/2021, before the learned Debt Recovery Tribunal, Guwahati, to claim a sum of Rs.3,43,41,976.40 as on 09.11.2021.
6. It is projected that during the pendency of the said OA.241/2021, the concerned bank authorities had also invoked the relevant provisions of the SARFAESI Act, 2002 and in exercise of such power, although the petitioner had not offered her immovable properties in mortgage, the property of the petitioner was put to auction. The petitioner alleges that she was not served with any demand notice u/s 13(2) and 13(4) of the SARFAESI Act as a guarantor to the said loan/finance. It is also projected that the immovable properties of the petitioner was sold at a meager amount to respondent no.10.
7. The further allegation of the petitioner is that on 03.11.2023, a poster of a show-room opening being pasted in her building, the petitioner came to know about the sale transaction and that the respondent no.10 was in occupation of the said premises. It is also alleged that on 04.11.2023, the respondent no.10 along with some goons entered into the house of the petitioner and looted variable properties and damaged the household items and in an attack on the petitioner and her son, they had suffered serious grievous injuries for which they were both hospitalized. Accordingly, being aggrieved, petitioner filed FIRs on 04.11.2023 and 14.11.2023 before the Nagaon Police Station and Haibargaon Police Station respectively.
8. It is also projected that consequently, the petitioner had also submitted complaints before the Superintendent of Police, Nagaon on 16.11.2023 and the Director General of Police, Assam Police Headquarters on 17.11.2023 and also submitted that representations dated 17.11.2023 before the Ministry of Govt., of Assam, Transport, Fishery & Excise Department who is Page No.# 5/11 also Gardian Minister for the Nagaon District.
9. It is projected that only thereafter, on 20.11.2023, the FIR dated 04.11.2023 was registered and it is further projected that the second FIR filed on 14.11.2023 was not even registered. Accordingly, the petitioner had posted a copy of the FIR on 28.12.2023 to the Chief Secretary to the Govt. of Assam; Director General of Police, Assam; Bureau of Investigation (E.O); to the Directorate of Vigilance and Anti-Corruption; and to the Criminal Investigation Department (CID) of the State. However, as no actions were taken and in the meanwhile, bail was granted to the respondent no.10, the present writ petition has been filed under Article 226 of the Constitution of India with a prayer for issuance of a writ in the nature of Mandamus for directing the Central Bureau of Investigation to immediately investigate the matter and submitted a detailed report with regard to the FIR dated 04.11.2023, 14.11.2023 and 28.11.2023 filed by the petitioner.
10. The learned Addl. Senior Government Advocate has referred to the order dated 08.11.2024 of this Court, wherein his response to the court query is recorded. It is submitted that as per the status report provided by the Superintendent of Police, Nagaon, one Hriday Borah, the son of the petitioner had lodged an FIR on 03.11.2023 against the respondent no.10 and others. The said FIR was registered as Nagaon P.S Case No.1043/23 under Sections 147/447/354/506 IPC. On completion of the investigation, the concerned I.O has submitted a charge-sheet bearing no.233/24 dated 05.05.2024. Subsequently, on 04.11.2023, the petitioner, who is the mother of the said Hriday Borah had also lodged an FIR through the Superintendent of Police, Nagaon and accordingly, Nagaon P.S Case No. 1102/23 was registered under Page No.# 6/11 Sections 447/325/379/34 IPC. The I.O has submitted a charge-sheet against the accused persons vide Nagaon P.S Charge-sheet No.234/24 dated 05.05.2024. Thereafter, again on 14.11.2023, the petitioner has submitted another complaint on the same issue at Haibargaon TOP under Nagaon Police Station, which was entered as Haibargaon TOP GDE No.272/23 dated 14.11.2023. According, the learned Addl. Senior Government Advocate has submitted that after registration of initial FIRs, the subsequent complaint dated 14.11.2023 was taken as supplementary information in connection with Nagaon P.S Case No. 1102/23, which is permissible in law.
11. The learned counsel for the petitioner has submitted that the investigation was not carried out in a proper manner and there was no investigation with regard to the illegalities committed by the officials of the bank on whose connivance with the respondent no.10, the immovable property of the petitioner was sold to the respondent no.10 without following due procedure prescribed under the SARFAESI Act at a throw away price.
12. Considered the material available in this writ petition. Also considered the submissions made by the learned senior counsel for the petitioner as well as the learned Addl. Senior Government Advocate and also considered the status report dated 11.05.2024 of the Superintendent of Police, Nagaon, which who produced by the learned Addl. Senior Government Advocate.
13. At the outset, the issue regarding the grievance of the petitioner against the concerned bank is taken up. It is an admitted case of the petitioner that she was the guarantor for the financial accommodation availed from the concerned bank by the son of the petitioner. The documents which are annexed to this writ petition do not disclose as to whether an equitable mortgage was Page No.# 7/11 created in respect of the immovable property of the petitioner.
14. Under the provisions of the SARFAESI Act, unless a property is a secured asset, the bank might not be able to invoke the said provision. Therefore, in the absence of any statement that no equitable mortgage was created in respect of the immovable properties of the petitioner in respect of the financial accommodation availed by the son of the petitioner, there was no way for the Court to arrive at a considered opinion that the assets which were sold off in exercise of the powers under the SARFAESI Act was not a security asset in favour of the concerned bank.
15. Be that as it may, without rendering any opinion as to the status of the property which was sold in the auction under the SARFAESI Act, it would be apposite to refer to the decision of Full Bench of the Supreme Court of India in the case of K. Virupaksha and Anr. vs. State of Karnataka, (2020) 0 Supreme (SC) 222 : AIR 2020 SC 3648. In the said decision, on an allegation that the officials of the bank had committed breach of trust and they were also party to cheating, forgery and conspiracy, the Supreme Court of India held that the provisions of the SARFAESI Act and the Security Interest (Enforcement) Rules, 2002 provides procedure to be adopted with regard to valuation and sale of secured asset and accordingly, it was held that if a complainant, as a borrower (in this case, guarantor) had any grievance with regard to any measures taken by the secured creditor in invoking provisions of Section 13 of the SARFAESI Act, the remedy as provided under Sections 17 of the SARFAESI Act was required to be availed. It was further held that the SARFAESI Act is a complete code in itself, which provides procedure to be followed by the secured creditor and also remedy to aggrieved parties including the borrower. It was Page No.# 8/11 further held that in the event there is any discrepancy in the manner of classifying accounts of the borrowers as NPA or in the manner valued or auctioned, the Jurisdictional Debts Recovery Tribunal is vested with the power to set aside such auction at the stage after secure creditor invokes power under Section 30 of the SARFAESI Act. Under such circumstances and discussions as briefly stated above, the Supreme Court of India had quashed the complainant FIR by the aggrieved person.
16. In the present case in hand, the petitioner has annexed at page 122 to 124 of the writ petition, copy of the sale notice advertisement in a newspaper. She has also annexed a copy of Bank's notice dated 06.06.2023 at page 125-126 of the writ petition, which is a notice to the borrower to vacate the mortgage property. From a copy of a letter dated 14.06.2023, which is annexed at page 127 of the writ petition, it also appears that one of the partners of the firm that had availed financial accommodation from the concerned bank had raised an objection before the District Magistrate, Nagaon, against physical possession. Also enclosed with this writ petition at page 128 is a copy of status report printout of a purported SARFAESI application, bearing SA No.91/2023 which was filed on 10.08.2023, and the same is shown to be pending before the jurisdictional Debt Recovery Tribunal. Copy of orders, if any, passed in the said application has not been produced before this Court. Under such circumstances, in light of the decision of the Supreme Court of India in the case of K. Virupaksha and Anr. (supra), as the Debt Recovery Tribunal has the power and jurisdiction to decide on whether there was any failure on the part of the bank to take steps in accordance with law, the Court does not find this to be an appropriate case for issuing a direction to the Central Bureau of Investigation to investigate the matter.
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17. However, depending on the verdict, so rendered by the Debt Recovery Tribunal, it would be permissible for the petitioner to take such appropriate measure, as she may be so advised.
18. The other issues relate to the lodging of the FIR dated 03.11.2023 by the son of the petitioner and FIR dated 14.11.2023 by the petitioner. In the said context, it may be stated that in so far as FIR dated 03.11.2023 is concerned, the same is lodged by one Hriday Borah, who is the son of the petitioner. In the said regard, no case law has been cited of the point that the petition can be maintained on allegation that there is improper investigation on the FIR lodged by her son. Therefore, we refrain from dealing with the investigation in so far as FIR dated 03.11.2023 by one Hriday Borah is concerned. Nonetheless, as per the status report by the Superintendent of Police, Nagaon dated 11.05.2024, as produced by the learned Addl. Senior Government Advocate, charge-sheet bearing No.233/24 dated 05.05.2024, is already stated have been filed.
19. In so far as the FIR submitted by the petitioner on 04.11.2023 is concerned, which is registered as Nagaon P.S Case No. 1102/2023, as per the said status report dated 11.05.2024, the I.O is reported to have submitted the charge-sheet against the accused persons by Nagaon P.S CS No.234/24 dated 05.05.2024. The statutory remedy to a person aggrieved with a charge-sheet is provided in the BNSS,2023, if a complainant is dissatisfied with the nature of the investigation. There is no material on the record that the petitioner has availed any such remedy. Under such circumstances, the Court does not find this to be fit case for ordering any further investigation as the petitioner has alternative statutory remedy available, which cannot be said to be unjust, improper and Page No.# 10/11 would not address the grievance of the petitioner.
20. From the contents of the FIR dated 04.11.2023 and FIR dated 14.11.2023 by the petitioner, one of the common ingredient in both the FIR is that on 04.11.2023, the petitioner and her son i.e. Hriday Borah were purportedly assaulted and certain assets were allegedly snatched. Therefore, as there was a common element in both the FIR with certain more aspects relating to the loan availed by the son of the petitioner, and sale of the assets of the petitioner is concerned, the Court is unable to arrive at a finding that the action of the concerned I.O to consider the first FIR as an initial FIR and this subsequent FIR dated 14.11.2023 be treated as supplementary information in connection with Nagaon P.S Case No.110/23. Accordingly, in respect of the FIR dated 14.11.2023, this Court does not find it to be a fit case to direct any CBI enquiry as charge-sheet has already been submitted in connection with the said police case, being Nagaon P.S CS No.234/24 dated 05.05.2024. There is no material on the record to show that the petitioner has registered any protest in respect of the said charge-sheet in accordance with the provisions of the erstwhile Cr.P.C., now substituted with BNSS, 2023.
21. Therefore, on all counts as discussed above, this writ petition fails and same is dismissed.
22. However, before parting with the records, the Court is inclined to provide that in the event the petitioner is aggrieved in the manner charge-sheet was submitted, subject to the law of limitation, it would be open to the petitioner to avail such remedy as she may be so advised.
23. It is further clarified that nothing contained in this order shall Page No.# 11/11 prejudice the petitioner before any Court of proceedings, which shall be decided in accordance with law and without being influenced by this order.
24. The copy of the status of investigation dated 11.05.2024 of the Superintendent of Police, Assam with 9 page enclosures thereto are retained as part of record.
JUDGE JUDGE Comparing Assistant