Karnataka High Court
Indiabulls Housing Finance Ltd vs N Raju on 18 September, 2018
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL PETITION NO.2874/2012
BETWEEN:
Indiabulls Housing Finance Ltd.,
201-202, 2nd Floor, Gold Towers,
Next to Konark Hotel, Residency Road,
Bangalore-560 025.
By its Authorized Representative
M.B.Chengappa
S/o Late M.K.Bopaiah, Major
...Petitioner
(By Sri S.G.Bhagavan, Advocate)
AND:
1. N.Raju,
S/o Sri.Nanjundappa,
32 years, 37, 4th "A" Cross,
Munisanjivappa Layout,
Jaraganahalli,
Bangalore-78.
2. The State of Karnataka,
By Police Sub-Inspector,
Halasoor Gate Police Station,
Bangalore City.
...Respondents
(By Sri R.Srinivas, Advocate for R1 (Absent);
Sri M.Divakar Maddur, HCGP for R2)
2
This criminal petition is filed under Section-482 of
Cr.P.C praying to quash the proceedings in PCR
No.98/2011 including the order dated 03.01.2011 passed
by the V ACMM, Bangalore and the investigation in the
Crime No.7/2011 of Ulsoor Gate Police station, Bengaluru
in so far the petitioner is concerned to meet the ends of
justice.
This Criminal Petition coming on for Admission this
day, the Court made the following:
ORDER
Heard the learned counsel for the petitioner and learned HCGP appearing for the State at the time of admission.
2. Learned counsel for respondent No.1 is absent.
3. The petitioner has sought for quashing of the proceedings in PCR.No.98/2011 on the file of V Additional Chief Metropolitan Magistrate, Bangalore.
4. Brief facts of the case are as follows;
Respondent No.1 has stated that he entered into an agreement of sale with one Cheluva Raju to purchase the property bearing No.73, Old.No.42, Khata No.801, measuring East to West 55 feet and North to South 3 78+72½ feet situated at Yelachenahalli village, Uttarahalli Hobli, Bangalore South Taluk on 11.05.2010 and he claims to be in possession of the said property on the basis of the agreement. He made a private complaint under Section 200 of Cr.P.C., against the petitioner alleging that although it did not have the originals of the property, it initiated proceedings under Section 14(1) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('Act' for short) and dispossessed him. In the complaint the respondent has stated that the petitioner has committed offences punishable under Sections 420, 463, 464, 468, 471, 191, 192, 196, 197, 199, 200, 209 read with Section 120(b) of IPC. The V Additional Chief Metropolitan Magistrate, Bengaluru, before whom private complaint was lodged, referred the matter to police for investigation under Section 156(3) of Cr.P.C.
5. Learned counsel for the petitioner argues that the petitioner is a Banking Company as defined under the 4 provisions of the Act. The original owner of the property was one Cheluva Raju. On 20.06.2007 Sri.Cheluva Raju and his wife, Smt.J.P.Manjula, obtained loan of Rs.72,00,000/- from the petitioner on the security of the property. Since they committed default in repaying the loan amount, the petitioner had to initiate action under Section 13 of the Act and then approached the Court of Additional Chief Metropolitan Magistrate, Bangalore under Section 14 of the Act for taking possession. The said case was registered as Crl.Mis.No.547/2009. By order dated 22.06.2009, the learned Magistrate passed an order permitting the petitioner to take possession. There was a delivery of possession on 13.09.2010.
6. The complainant Raju entered into an agreement with the owner Cheluva Raju on 11.05.2010, by that time the petitioner had already i.e., on 07.02.2009, initiated proceedings under Section 14 of the Act. If at all, the complainant was aggrieved by the order of Magistrate, he should have preferred an appeal before the Debt Recovery 5 Tribunal according to Section 17(1) of the Act. This is a clear case of abuse of process of court and law. There is no material to proceed against the petitioner and the entire proceedings need to be quashed.
7. Learned HCGP argues that the possession is with the complainant. The petitioner had no right to initiate action according to Section 14 of the Act. In regard to allegation made against the petitioner, trial needs to be held. There is no scope for interference under Section 482 of Cr.P.C.
8. After hearing both sides, it is to be observed now that the owner of the property namely, Cheluva Raju had obtained loan from the petitioner on 20.06.2007 by offering the property as collateral security for the loan. Since, Cheluva Raju and his wife did not repay the amount, the petitioner had to take action under Section 13 of the Act and then approached the learned Magistrate under Section 14 of the Act by filing Crl.Misc.No.547/2009. On 22.06.2009, the learned Magistrate passed an order for taking possession of the property and property was 6 actually delivered on 13.09.2010. Therefore, these events clearly show that by the time, complainant-Raju entered into an agreement with Cheluva Raju on 11.05.2010, the petitioner had approached the court of law for taking possession of the property mortgaged in connection with loan transaction. Moreover, the petitioner has produced copy of the agreement which clearly shows that it was an agreement without possession. But in the complaint it is stated that the possession of the property is with the complainant. Therefore, till 13.09.2010, the possession of the property was with Cheluva Raju and not with the complainant. It is very clear that the petitioner had exercised its power as permitted under the law. If at all complainant has any grievance, he has every right to approach Debt Recovery Tribunal by preferring an appeal. In the background of these circumstances, it can be said that the complainant cannot prosecute the petitioner for the offences as alleged in his complaint. It is clear case of abuse of process of law and court. Hence, the following; 7
ORDER
i) The Criminal Petition is hereby allowed;
ii) The proceeding in PCR No.98/2011
including the order dated 03.01.2011
passed by the V ACMM, Bengaluru and
investigation in Crime No.7/2011 of Ulsoor Gate Police Station, Bengaluru, insofar as they relate to petitioner stand quashed.
Sd/-
JUDGE SB