Delhi District Court
M/S Kashish Gems & Jewellery Pvt. Ltd. ... vs Bank Of India on 22 July, 2016
IN THE COURT OF SH. RAKESH TEWARI, LD. ASJ03,
(CENTRAL), THC, DELHI
Crl. Rev No. 58261/16(Old no. 72/15)
treated as appeal u/s 341 CrPC
M/s Kashish Gems & Jewellery Pvt. Ltd. .........Apellants
Vs.
Bank of India .......Respondents
22.07.2016 Present : Sh. Naveen Grover, counsel for the appellant.
Proxy counsel Sh. Hari Om Prasad for respondent Bank.
1. There is an application for treating this revision as appeal dated 1.8.2015 and arguments heard on the same. The law is that specific provision must prevail over the general rule. Any application dismissed or allowed under Section 340 Cr.P.C. is appealable under Section 341 Cr.P.C. and it is specifically mentioned in Section 341 Cr.P.C. that no revision lies against an order passed either u/S 340 Cr.P.C. or u/S 341 Cr.P.C. As such, the application is allowed and this revision petition is treated as appeal u/S 341 Cr.P.C.
2. This is an appeal under Section 341 Cr.P.C. directed CR No.58261/16 (Old No.72/15) M/s Kashish Gems & Jewellary Pvt. Ltd. Vs. Bank of India Page No.1 of 9 against the impugned order dated 31.8.2013 passed by the ld. ACMM (Special Acts), Central, whereby the application under Section 340 Cr.P.C. moved by the present appellant was disposed off after accepting unconditional apology of one Sh. Parmod Kumar Dwivedi, the official of the respondent bank and also holding that his action was in good faith and was under wrong legal advice.
3. Facts giving rise to the present appeal are that the respondent bank had earlier filed an application before the ld. ACMM for appointment of receiver the take possession of property bearing No. MPLXV/1563, situated at Main Bazar, Pahar Ganj, Delhi and thereafter the present appellant filed the securitization application alongwith application under Section 17 of Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 read with Section 22 of Recovery of Debts due to Banks & Financial Institutions Act, 1993 read with Rule 12(6) & (7) and Rule 18 of the Regulations framed thereunder, before the Debt Recovery Tribunal, Delhi, which are still pending disposal. By way of the said applications, the present appellant sought appointment of a local commissioner from the DRT, to identify distinguished and demarcate the said property on which the respondent bank was claiming its charge i.e. on property measuring 450 sq. yds. on the CR No.58261/16 (Old No.72/15) M/s Kashish Gems & Jewellary Pvt. Ltd. Vs. Bank of India Page No.2 of 9 basis of three Sale Deeds, out of which it is alleged by the appellant that the respondent bank was claiming its charge on the said property with respect to three pieces of 50 sq. yds. each, thus, totalling 150 sq. yds. and not 450 sq. yds. The DRT vide its order dated 6.3.2012 appointed one Mohit Sharma, Adv. as local commissioner and the said order was passed in the presence of Sh. Parmod Kumar Dwivedi, the authorised officer of the respondent bank but it is alleged that the said officer intentionally and deliberately was not present when the property was being inspected by the local commissioner as he was fully aware that the property was not identifiable and could not be demarcated and he was aware that he had made a false statement before the DRT. The said local commissioner inspected the property on 07.03.2013 in the presence of two other representatives of the respondent bank and thereafter the said local commissioner gave his report that the said property is built on land measuring 750 sq. yds. and sale could not be demarcated and identified as per the sale deeds furnished by the respondent bank. On 12.4.2012, the counsel for the respondent bank made a statement before the DRT that bank would get the property in question identified from Surveyor of MCD at its own expenses and only after that bank shall proceed to take possession only after the report of the Surveyor is filed before the DRT. In view of CR No.58261/16 (Old No.72/15) M/s Kashish Gems & Jewellary Pvt. Ltd. Vs. Bank of India Page No.3 of 9 the said statements of the counsel for the respondent bank, the DRT passed an interim order whereby the respondent bank was directed not to proceed further and adjourned the matter for 25.4.2012 and thereafter, allegedly the respondent bank was seeking adjournment before the DRT and no steps towards engaging a surveyor of MCD were taken.
4. That inspite of the said interim relief in favour of the present appellant, the respondent bank filed an application for extension of time of the receiver to comply with the order dated 15.2.2013 before the ACMM (Special Acts), Central, Delhi alongwith an affidavit of the authorised officer stating therein that there was no stay orders against the respondent bank due to which the said ACMMs appointed Ms. Samita Sinha, as receiver to take possession of the said property vide his order dated 13.2.2013 and it has been alleged that said order was procured after filing the false affidavit by the official of the respondent bank by concealing the fact that there was a stay order in favour of the present appellant from DRT and in this background, the application under Section 340 Cr.P.C. was moved before the ACMM against Sh. Parmod Kumar Dwivedi, the authorised officer of the respondent bank, who filed the said false affidavit.
5. It has been argued on behalf of the appellant that the said Pramod Kumar Dwivedi, earlier also is facing contempt CR No.58261/16 (Old No.72/15) M/s Kashish Gems & Jewellary Pvt. Ltd. Vs. Bank of India Page No.4 of 9 application in the similar case as reflected at page 23 and before the DRT (1), Delhi in SA no. 22/2012 and the said earlier conduct has been ignored by the Ld. Trial Court in the impugned order dated 31.08.2013.
6. I am not inclined to accept the said argument of the appellant because proceedings u/s 340 CrPC are criminal in nature and the act which has been alleged to be an offence in a particular proceeding, can only be subject matter of the application and the involvement of any person in various other previous criminal activities cannot be decided by one application for various proceedings. Previous involvement or character cannot be assailed in a subsequent proceedings wherein a new act or offence or conduct is in issue. It is that issue only which is the subject matter of the application u/S 340 Cr.P.C., which is to be dealt only. It is the act in question of the proposed accused which is the subject matter of the enquiry u/s 340 CrPC.
7. It has been contended on behalf of the appellant that said official of the respondent bank despite knowing that there is a stay order from the DRT filed a false affidavit before the ACMM stating therein that there is no stay order of the DRT against the respondent bank and thus, requested Ld. ACMM to appoint the receiver.
8. The said affidavit is dated 14.02.2013 and I could not CR No.58261/16 (Old No.72/15) M/s Kashish Gems & Jewellary Pvt. Ltd. Vs. Bank of India Page No.5 of 9 find from the record that there was any stay of the DRT or any other Tribunal on 14.02.2013. However, I have gone through the earlier orders of the DRT also. In the order dated 12.04.2012, the DRT has directed the respondent bank not to proceed "till the next date of hearing" in view of the statement made by the Ld. Counsel for the respondent bank. Thereafter, the matter was listed on 25.04.2012 for hearing "on issue of interim relief". In the order dated 25.04.2012 of the DRT, I could not find any continuation of the said interim order dated 12.04.2012 or a fresh interim order and in the last line, it is again written that matter be listed on 17.05.2012 for hearing on "issue of interim relief". On 17.05.2012, again there is no continuation of order dt. 12.04.2012 or passing of fresh order of interim stay by the DRT.
9. It has been argued on behalf of the appellant that even if there is no specific order of continuation of the interim relief, it continues till it is revoked or finalized and my attention has been drawn towards a judgment of the Hon'ble Allahabad High Court reported as AIR 2001 ALLAHABAD 165.
10. The law laid down in the said judgment is based upon the principle that status quo in the rights of the parties must be preserved by interlocutory orders and the proceedings CR No.58261/16 (Old No.72/15) M/s Kashish Gems & Jewellary Pvt. Ltd. Vs. Bank of India Page No.6 of 9 do not become infructuous during its pendency. There is no dispute about the said proposition of law. It has not been alleged anywhere in the appeal that status quo in the state of affairs between the parties has been disturbed by the passing of the impugned order by the Ld. ACMM dated 31.08.2013. Moreover, the Hon'ble Allahabad High Court was laying down the said law with regard to a situation arising out of a civil dispute and Section 340 CrPC is a criminal proceeding requiring very specific allegations and averments which are there as a matter of fact on the record and not based upon "what it ought to be". Similar is the position in the judgment of Civil Writ Petition no. 1267/2009 titled Anil Chitoda Vs. State of Rajasthan & Anrs. decided on 27.07.2009, which has been relied upon by the appellant.
11. Admittedly, there is no specific order of the DRT after 12.04.2012 for the continuation of the interim order and in these circumstances, the possibility of confusion or tendering wrong legal advice by a lawyer, cannot be ruled out.
12. There is a discretion vested in the court dealing with an application u/s 340 CrPC, relevant portion of the same reads as under: "340. Procedure in cases mentioned in Section 195(1) When upon an application made to it in this behalf or other wise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence, CR No.58261/16 (Old No.72/15) M/s Kashish Gems & Jewellary Pvt. Ltd. Vs. Bank of India Page No.7 of 9 referred to in clause(b) of subsection (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non bailable and the Court thinks it necessary so to do so, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate........."
12. It is the "expediency", which is the governing factor u/s 340 CrPC. An act of a person may amount to an offence or may be illegal but again the Court has to consider the expediency in proceedings against him u/s 340 CrPC. This discretion, no doubt, is to be exercised judicially. The Ld. Trial Court in the impugned order was well within its right to accept the apology tendered by Sh. Pramod Kumar Dwivedi, the official of the bank and he has also given him the benefit of acting in good faith while moving the affidavit dated 14.02.2013. Merely, this Court being appellate court would have come to a different conclusion, is no ground to set aside the discretion exercised by the Trial Court or to substitute its opinion for the opinion of the Trial Court. The Trial Court did not consider it expedient in the CR No.58261/16 (Old No.72/15) M/s Kashish Gems & Jewellary Pvt. Ltd. Vs. Bank of India Page No.8 of 9 interest of justice to hold an enquiry and proceed further u/s 340 CrPC. I am of the considered opinion that there is no illegality in the impugned order dated 31.08.2013 passed by the Ld. ACMM. Hence, the appeal is without any merit and the same is dismissed.
13. Copy of this order be sent to the Ld. Trial Court alongwith the Trial Court record. The appeal file be consigned to the Record Room.
Announced in open court
on 22.07.2016 (Rakesh Tewari)
ASJ03 (Central)/22.07.2016
CR No.58261/16 (Old No.72/15)
M/s Kashish Gems & Jewellary Pvt. Ltd. Vs. Bank of India Page No.9 of 9
Crl. Rev No. 58261/16(Old no. 72/15)
treated as appeal u/s 341 CrPC
M/s Kashish Gems & Jewellery Pvt. Ltd. .........Apellants
Vs.
Bank of India .......Respondents
22.07.2016
Present : Sh. Naveen Grover, counsel for the appellant.
Proxy counsel Sh. Hari Om Prasad for respondent Bank.
Vide my separate order of the day, this revision petition is being treated as appeal.
Ld. Counsel for the appellant has filed copy of the order dated 25.4.2012 of DRT1, Delhi.
Vide my separate order of the day, the appeal is dismissed.
Copy of the order of the appeal be sent to the trial court alongwith trial court record. The appeal file be consigned to the record room.
(Rakesh Tewari) ASJ03 (Central)/22.07.2016 CR No.58261/16 (Old No.72/15) M/s Kashish Gems & Jewellary Pvt. Ltd. Vs. Bank of India Page No.10 of 9