Madhya Pradesh High Court
Punjab National Bank Thr vs Omprakash Shivhare on 17 October, 2023
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
IN THE HIGHCOURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
MCRC No.19922 OF 2018
BETWEEN:-
PUNJAB NATIONAL BANK, BRANCH GANDHI ROAD
DISTRICT DATIA, THROUGHG ITS MANAGER SHRI
R.C. PALIYA S/O SHRI MOHAN LAL, AGED - 49 YEARS,
OCCUPATION- SENIOR MANAGER, PUNJAB
NATIONAL BANK GANDHI ROAD DATIA (MADHYA
PRADESH) ADDRESS- PUNJAB NATIONAL BANK,
BRANCH GANDHI ROAD DISTRICT DATIA, MADHYA
PRADESH.
.....APPLICANT
(BY SHRI VIVEK KUMAR MISHRA- ADVOCATE)
AND
OMPRAKASH SHIVHARE S/O DAYARAM SHIVHARE,
AGE - 53 YEARS R/O NEAR GANJI KE HANUMAN
UNAV ROAD DATIA DISTRICT DATIA (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI ANOOP KUMAR GUPTA WITH SHRI UPENDRA YADAV-
ADVOCATES FOR THE RESPONDENT)
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Reserved on : 05.09.2023
Pronounced on : 17.10.2023
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This petition having been heard and reserved for judgment,
coming on for pronouncement this day, Justice Sanjeev S Kalgaonkar
pronounced the following:
Signature Not Verified
Signed by: AVINASH
BHARGAV
Signing time: 18-10-2023
06:27:01 PM
2
ORDER
This petition under Section 482 of CrPC has been filed assailing the order dated 03.02.2018 passed by Chief Judicial Magistrate, Datia in unregistered criminal complaint and the spot inspection report dated 03.02.2018.
2. The petition inter alia states as under:-
(i) Abhishek Shivhare, son of respondent Omprakash Shivhare had taken loan from Punjab National Bank, Branch Gandhi Road, Datia by mortgaging his property ad measuring 800 sq.ft with the petitioner bank. Proceeding under the provisions of SARFAESI Act, 2002 was initiated against defaulter Abhishek Shivhare. The authorised officers of the bank had taken possession of the property of borrower admeasuring 800sq.ft on 18.06.2014. A panchanama was made upon which respondent had voluntarily signed.
(ii) The Chief Manager, Punjab National Bank, Branch Gandhi Road, Datia had submitted a written complaint on 10.01.2015 to Police Station Kotwali, Datia that accused Abhishek Shivhare in conspiracy with his father Omprakash had committed fraud by making forged bills and they have misappropriated the money of Punjab National Bank.
(iii) After investigation charge sheet was submitted against Abhishek Shivhare and Omprakash Shivhare before the Court. In said proceeding, an application under Section 310 of CrPC was filed for stay on auction proceeding held under SARFAESI Act, 2002. Learned CJM, Datia stayed the auction proceeding on 02.07.2015, which was Signature Not Verified Signed by: AVINASH BHARGAV Signing time: 18-10-2023 06:27:01 PM 3 challenged by the petitioner before learned Sessions Court, Datia in Criminal Revision No.46 of 2015. The criminal revision was dismissed on 28.09.2015.
(iv) On the request of respondent, CJM, Datia directed to lock the disputed property on 16.07.2015. The order of CJM was challenged before the Sessions Judge in Criminal Revision No.49 of 2015. The Revisional Court partly allowed the revision on 28.09.2015 and directed the trial Court to pass appropriate order after following the principles of natural justice.
(v) Learned CJM, Datia directed to call spot inspection report on 07.10.2015. The order was challenged before learned Sessions Judge in Criminal Revision No.99 of 2015. The Revisional Court held that earlier order dated 02.07.2015 has been set aside by the High Court on 18.03.2016 in MCRC No.1231/2016. Therefore, these subsequent orders passed by CJM, Datia have no legal existence. Thereafter, the Chief Judicial Magistrate committed the matter to the Court of Additional Sessions Judge, Datia. The Additional Sessions Judge, Datia framed charges under Sections 420, 467, 468 and 471 of IPC against the respondent Omprakash Shivhare and his son Abhishek Shivhare. Learned Sessions Judge convicted Abhishek Shivhare for offence punishable under Section 420 of IPC and sentenced to undergo three years' rigorous imprisonment. Abhishek was also convicted for offence punishable under Sections 467, 468, and 471 of IPC and sentenced for rigorous imprisonment for four years, three years and four years with fine respectively vide order dated 25.05.2017.Signature Not Verified Signed by: AVINASH BHARGAV Signing time: 18-10-2023 06:27:01 PM 4
(vi) Respondent filed a complaint against the officers of the bank for offence punishable under Sections 166, 294, 451, 182, 211, 147, 500 and 506(b) of IPC. The complainant further submitted an application under Section 310 of CrPC. On receipt of the copy of application, the petitioner submitted written reply. Learned trial Court on 26.09.2017 observed that the application under Section 310 of CrPC is premature and directed the complainant for recording of statement under Sections 200 and 202 of CrPC. Statements of complainants Omprakash Shivhare, Raghunandan Sharma and Kundan Singh Kamariya were recorded. Learned CJM, Datia heard the argument on said application under Section 310 of CrPC and directed to make local inspection on 21.11.2017. The order of CJM, Datia with regard to the local inspection was challenged in Criminal Revision No.75 of 2017 before learned Sessions Judge, Datia. Learned Sessions Judge, Datia vide order dated 26.12.2017 passed in CRR No.75 of 2017, rejected the revision petition. The petitioner filed MCRC No.1664/2018 before the High Court. The High Court vide order dated 25.01.2018 rejected the petition. Thereafter, learned CJM, Datia made local inspection on 03.02.2018. Learned CJM, Datia on the basis of impugned local inspection report took cognizance against the officers of bank vide order dated 27.03.2018.
3. Feeling aggrieved by the observation in spot inspection report and the order of cognizance dated 03.02.2018, the petition is filed assailing the spot inspection proceeding and the impugned order on following grounds:-
(i) The impugned orders passed by learned CJM, Datia are illegal and arbitrary. Learned CJM has no jurisdiction to divide the land, Signature Not Verified Signed by: AVINASH BHARGAV Signing time: 18-10-2023 06:27:01 PM 5 therefore, the impugned order and inspection report are illegal.
(ii) Learned CJM, Datia had no authority in law to create the evidence and make grounds in favour of complainants to take cognizance against the accused. The impugned proceeding of spot inspection and the order is without jurisdiction.
(iii) The petitioner has made proceeding under SARFAESI Act, 2002 in the year 2014. The respondent has not made any objection at the time of proceeding. Respondent has bought adjacent property in the year 2016. Learned CJM, Datia ignored the document and Government record and made wrong report from inspection report, causing serious prejudice to the petitioner-bank.
4. On aforementioned grounds, it is requested that the impugned order dated 03.02.2018 and spot inspection report of learned CJM, Datia in unregistered criminal complaint be set aside.
5. Heard the parties and perused the record.
6. This petition is filed assailing the impugned order dated 03.02.2018 and the spot inspection conducted by learned Chief Judicial Magistrate. The record reveals that- the Chief Judicial Magistrate on application of the complainant filed under Section 310 of CrPC decided to inspect the site vide order dated 21.11.2017. In furtherance of this order, learned Chief Judicial Magistrate, Datia conducted spot inspection on 03.02.2018.
7. The order dated 21.11.2017 was assailed in Criminal Revision No.75/2017. Learned Additional Sessions Judge, Datia affirmed the order passed by learned CJM, Datia vide order dated 26.12.2017. The order of Additional Sessions Judge, Datia in Criminal Revision No.75/2017 was Signature Not Verified Signed by: AVINASH BHARGAV Signing time: 18-10-2023 06:27:01 PM 6 assailed in Miscellaneous Criminal Case No.1664/2018. The Coordinate Bench of this Court vide order dated 25.10.2018 and observed as under:-
"As far as the law on the subject is concerned, the provision of Section 310 of Cr.P.C. Permits the Magistrate make local inspection and not a local inquiry. The purpose of inspection is to appreciate the evidence in the case and its purpose is not to collect the evidence. Thus, Magistrate is entitled to inspect the local peculiarities for the purpose of properly appreciating the evidence, which is already on record. Though it's is true that orders for local inspection have been passed at the instance of the complainant but the purpose of such local inspection is only to appreciate the evidence led by the complainant before registration of the complaint. Thus, apprehension of the petitioner that such report may be used as an evidence against them is ill- founded, inasmuch as the stage of the case is under Section 203/204 of Cr.P.C. In this regard law laid down by the Hon'ble Supreme Court in the case of reported in Keisam Kumar Singh and another Vs. State of Manipur as reported in AIR 1985 SC 1665 is relevant, wherein Hon'ble Supreme Court has held that local inspection by the Court cannot take place of evidence or proof but is meant only for appreciating the position of the spot. Thus, before registering the complaint if Magistrate decides to appreciate the position of spot, then this decision of the Magistrate cannot be faulted with and as has been pointed out above it will clarify that it will in no circumstances be treated as evidence against the petitioner/Bank and parties will be free to lead independent evidence at the relevant point of time to prove or disprove their case. Therefore, the impugned orders for the present do no call for any interference when the Revisional Court has also held that memo of inspection will not be treated as evidence in the light of law laid down by the Hon'ble Supreme Court in the case of State of Himachal Pradesh Vs.Mast Ram as reported in AIR 2004 SC 5056. Thus, impugned orders after such clarification do not call for any interference. Therefore, petition fails and is dismissed."
8. In view of the observation of Coordinate Bench of this Court, no prejudice is caused to the petitioner-Punjab National Bank. The matter has been considered in earlier round of litigation. Therefore, no case is made out for reconsideration in exercise of inherent jurisdiction. Thus, the petition sans merit and is hereby dismissed.
(SANJEEV S KALGAONKAR) JUDGE Avi Signature Not Verified Signed by: AVINASH BHARGAV Signing time: 18-10-2023 06:27:01 PM