Madras High Court
S.Kasimayan vs The Inspector Of Police on 16 July, 2013
Author: A.Arumughaswamy
Bench: A.Arumughaswamy
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16/07/2013 CORAM THE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMY Crl.R.C.(MD)No.551 of 2012 and Crl.O.P.(MD)No.9578 of 2011 Crl.R.C.(MD)No.551 of 2012 S.Kasimayan ... Petitioner/Accused No.1 Vs The Inspector of Police, CBI-ACB, Shastri Bhavan, Chennai. ... Respondent/Complainant PRAYER Criminal Revision Case is filed under Section 397 r/w 401 of the Criminal Procedure Code praying to call for the records in Crl.M.P.No.455 of 2011 in C.C.No.5 of 2011 pending on the file of the learned Second Additional District Judge for CBI Cases, Madurai, Special Judge for CBI Cases, Madurai (in- charge), to set aside the impugned order dated 02.11.2012 in Crl.M.P.No.455 of 2011 in C.C.No.5 of 2011 and discharge the petitioner from all the charges. Crl.O.P.(MD)No.9578 of 2011 R.Rajesh Kannan ... Petitioner/Accused No.3 vs 1.The Branch Manager, Dhanalakshmi Bank Ltd., Urimala Complex, No.32, Station Avenue Road, Chembur, Mumbai. 2.The Registrar, Debts Recovery Tribunal, Tara Towers, Ring Road, Madurai. 3.The Inspector of Police, Central Bureau of Investigation, ACB, Shastri Bhavan, Chennai. 4.The Registrar, The Debts Recovery Appellate Tribunal, Mumbai. 5.M.R.Gopinath ... Respondents Prayer Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure praying to call for the records of the proceedings in C.C.No.5 of 2011 on the file of the learned Principal Special Judge for CBI Cases, Madurai and quash the same. Crl.R.C.(MD)No.551 of 2012 !For Petitioner ... Mr.S.Kasimayan Party-in-person ^For Respondent ... Mr.S.Rozario Sundarraj, Special Public Prosecutor for CBI Cases Crl.O.P.(MD)No.9578 of 2011 For Petitioner ... Mr.K.P.S.Palanivel Rajan For Respondent No.1 ... Mr.N.Sundararajan For Respondent No.3 ... Mr.S.Rozario Sundarraj, Special Public Prosecutor for CBI Cases For Respondent No.5 ... Mr.M.Kannan *** :COMMON ORDER
The first accused has filed the present Criminal Revision Case against the order passed by the learned II Additional District Judge for CBI Cases, Madurai, Special Judge for CBI Cases, Madurai (in-charge), in Crl.M.P.No.455 of 2011 in C.C.No.5 of 2011, dated 02.11.2012.
2. The third accused has filed the criminal original petition in Crl.O.P.(MD).No.9578 of 2011 to call for the records of the proceedings in C.C.No.5 of 2011 on the file of the learned Principal Special Judge for CBI Cases, Madurai and quash the same.
3. The respondent/CBI-ACB filed final report in R.C.No.15 of 2009 before the learned Special Judge, CBI Cases, Madurai who in turn took cognizance of the said final report in C.C.No.5 of 2011 for the offences under Sections 120(b) r/w 169, 409, 420 IPC and u/s 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
4. There are certain allegations in the complaint against four accused including the revision petitioner who is the first accused which are as follows:-
i)During the year 2008, the petitioner/first accused is the Recovery Officer attached to the Debts Recovery Tribunal, Madurai. 4th accused/Auction purchaser is the another employee of the Debts Recovery Tribunal, Madurai. It is further alleged that the defacto complainant owned immovable properties in Madurai. In connection with the C.C.No. pending on the file of the Debts Recovery Tribunal, Mumbai, were ordered to be sold in public auction, since the properties are situated at Madurai. As Recovery Officer of the Debts Recovery Tribunal, Madurai, it was the function of the petitioner/A1 to auction the same in accordance with the provisions of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (RDDBFI). The value of the properties as on 08.11.2006 was fixed at Rs.15,85,154/- and it has been defined as item I, item II and item III. However, the auction was not conducted. Finally, the petitioner issued a sale proclamation advertisement and the same was published in Hindu wherein the petitioner had mentioned the place of auction at Dhanalakshmi Bank, Trichy. Thereafter, in the same newspaper and in the latter portion it has also been mentioned that the place of auction is at Debts Recovery Tribunal, Madurai. According to the prosecution case the revision petitioner wantonly mentioned the place of auction as Dhanalakshmi Bank, Trichy with an intention to avoid the genuine bidders. Further, in the auction notice the revision petitioner fixed the upset price as Rs.16,48,000/-, whereas the actual market value was Rs.69,97,000/-. The auction allegedly held at Debts Recovery Tribunal, Madurai and the 4th accused participated in the said auction amerged as successful bidder for the bid amount of Rs.1,55,000/-. The properties were sold in auction unreasonably for very lower price than the market value.
According to the prosecution genuine bidders were avoided in participation in the auction and thus connivance with A2 to A4, the petitioner sold the properties for very lower price than the market value. Challenging the said auction, the complainant filed an appeal before the Debts Recovery Appellate Tribunal, Mumbai and obtained an order of stay on 16.05.2008. The auction was conducted on 24.04.2008 and A4 paid 10% of the upset price on 24.04.2008. Despite the order of stay, the sale certificate was issued on 27.06.2008 in favour of A4 after receiving the balance amount. The sale price of the II item is Rs.1,55,000/- and the upset price is fixed at Rs.1,50,000/-. With these allegations, a case was registered, investigated and final report has been filed against the present revision petitioner/A1 and three other accused/A2 to A4.
5. The owner of the property, who is the borrower from the bank, and also as one of the respondents in Crl.O.P.(MD)No.9578 of 2011, appeared through his counsel and submitted arguments in support of the Public Prosecutor appearing for the CBI cases.
6. The contention of the revision petitioner, who appeared as party-in- person, is that on 24.04.2008, he auctioned the property as per the relevant provisions of law and after complying with the statutory formalities. It was knocked down by the third accused and later on, as per the procedure, he has waited for 30 days. Even then, the borrower respondent number 5 in the criminal original petition had not deposited the amount, whereas the balance amount has been paid by the fourth accused. Thereafter, sale has been confirmed and certificate to that effect has been issued. He has not violated any of the conditions. The petitioner/party-in-person, apart from this, raised the following grounds before this Court:
(i) The first contention is that the petitioner has discharged the function of judicial work, as a Recovery Officer. This aspect has been accepted by this Court by order dated 18.11.2010, in Crl.O.P.No.2520 of 2009. In the said judgment, it has been held that the function of Recovery Officer comes under the judicial function and while discharging the judicial function, even if irregularity has happened, the judicial immunity will be available and he can be questioned by the Head of the Department, by taking departmental action and not by way of initiating criminal proceedings.
(ii) The second contention raised by the petitioner/party-in-person is that the allegation levelled against the petitioner to the effect that at the time of publishing the properties for conducting a public sale in the English Daily 'The Hindu', he deliberately mentioned the place of auction as 'Dhanalakshmi Bank, Trichy' instead of 'DRT, Madurai' with a fraudulent intention of eliminating the eligible bidders from Madurai and later on, he issued a corrigendum with regard to the said publication that the place of auction has been erroneously mentioned as 'Dhanalakshmi Bank, Trichy' instead of 'DRT, Madurai', with a view to help the auction purchasers, which is not correct, according to the petitioner.
(iii) The petitioner/party-in-person further contended that the finding given by this Court has not been considered by the sanctioning authority at the time of according sanction. Therefore, the sanction accorded against him is not sustainable in law and the trial Court has not properly considered the said aspect. The Trial Court, in its impugned order, has overruled and ignored the findings given in Crl.O.P.(MD).No.2520/2009. Hence, the impugned order has to be set aside.
7. The learned Special Public Prosecutor for CBI Cases contended that there is no such finding given by this Court on earlier occasion to the effect that the petitioner who is the Recovery Officer comes under the judicial function is protected under judicial immunity, as contended by the petitioner. If that being so, then this Court would have set him at free at the earliest stage itself. Therefore, the interpretation given by the petitioner is not correct.
8. The learned counsel for the petitioner/A3 in the criminal original petition sailed with the same contentions as put forth by the revision petitioner/A1.
9. The second contention raised by the Special Public Prosecutor for CBI Cases is that the wife of the second accused, who was working as one of the staff of the Debts Recovery Tribunal, Maduai, has been allowed to participate in the auction proceedings and the property has been knocked down simply for Rs.1,000/- except other than the upset price fixed by him.
10. The next contention raised by the Special Public Prosecutor for CBI Cases is that the revision petitioner, knowing fully well regarding the order of stay granted by the Debt Recovery Appellate Tribunal at Mumbai, has issued a sale certificate, after confirming the sale with retrospective effect in favour of A-3 and A-4, which shows his intention to help the auction purchasers and the conspiracy with them. Hence, he prayed that the present revision has to be dismissed.
11. The learned Special Public Prosecutor for CBI Cases contended that some incriminating documents have been seized from the house of the accused and panchanama has been prepared and it has been served on the accused. Therefore, it will clinch the issue. Under such circumstances, the petition for discharge is highly premature one and hence, the Court concerned has correctly dismissed the said petition, which does not warrant interference at the hands of this Court. Therefore, the order of the trial Court has to be confirmed and the present revision deserves dismissal.
12. The contention of the learned counsel for the revision petitioner is that already the revision petitioner has filed Crl.O.P.(MD).No.2520 of 2009 before this Court and this Court has passed an elaborate order. The learned counsel would rely on paragraph 52 of the said decision, wherein it has been held as follows:-
"52. .......In my considered opinion, the protection extended to Judicial officers and Recovery Officers as the one extended to all acts performed by all Tribunals and the Recovery Officers attached to such Tribunals irrespective of the fact as to whether the personnel performing such officials are having the designation of a judge or not."
13. A reading of the above extraction would go to show that all acts performed by Judicial Officers and other officers attached to all Tribunals are liable for immunity. The petitioner contended that already finding has been answered by this Court in Crl.O.P.(MD).No.2520 of 2009 in paragraph No.52 and thus, the petitioner has got immunity, since he performed judicial act and relied on the decision in Anwar Hussain v. Ajay Kumar Mukkherjee reported in LNIND 1965 SC 47 and in paragraph 11 it has been held as follows:-
"In the case of acts of the second category, the protection of the statute will be available if at the time of doing, ordering the act, the judicial officer acting judicially, in good faith believed himself to have jurisdiction to do or order the same. The expression "jurisdiction" in this Section has not been used in the limited sense of the term, as connoting the 'power' to do or order to do the particular act complained of, but is used in a wide sense as meaning "generally the authority of the judicial officer to act in the matters'. Therefore, if the judicial officer had the general authority to enter upon the enquiry into the cause, action, petition or other proceeding in the course of which the impugned act was done or ordered by him in his judicial capacity, the act, even if erroneous, will still be within his "jurisdiction". Error in the exercise of jurisdiction is not to be confused with lack of jurisdiction in entertaining the cause or proceeding. It follows that if the judicial officer is found to have been acting in the discharge of his judicial duties, then, in order to exclude him from the protection of this statute, the complainant has to establish that (1) the judicial officer complained against was acting without any jurisdiction whatsoever, and (2) he was acting without good faith in believing himself to have jurisdiction. As such, there is no quarrel over such a proposition."
14. From the the perusal of the above said decision, it is clear that what is the work done by revision petitioner and whether he has discharged his duty with an intention to help the auction purchaser or malice or in a judicial manner has to be seen. But this aspect can be appreciated only after examining the witnesses. Therefore it is very clear that it is mere question of law mixed with facts to be appreciated only after examining the witnesses. Any how, at the earliest point of time, this Court has given a verdict in the above said decision. Therefore, the decision of this Court is binding upon the CBI Court. From the perusal of the records it is seen that after the disposal of the criminal original petition, the prosecution has obtained sanction from the head of department against A1. The Revision Petitioner filed application before the CBI Court under Section 239 Cr.P.C. to discharge him from all the charges. The CBI Court has passed the present impugned order. According to the petitioner, the order of the sanction granted by the appointing authority is not in accordance with the judgment mentioned in supra. This aspect has to be seen only by the Trial Judge, since the petitioner has got grievance in so many aspects.
15. Of course in respect of the contention of the petitioner regarding the claim of immunity, I am of the view that such immunity is not absent. So long as the act of the accused is purely in discharge of official duty without there being malafide he will be protected by the immunity. To the contrary, under the guise of discharge his official duties if the accused was acted with malafide intention to cause wrongful loss to some one and not to have wrongful gain to himself, such act of the accused is an offence for which the accused is liable to be punished and in such a situation there is no immunity available for him from the prosecution. In this case whether the petitioner had auctioned the properties honestly or with malafide intention for wrongful gain is a matter to be gone into only on evidence. At this stage, it is not possible for this Court to hold that the act of the accused does not amount to any offence.
16. The second contention raised by the Special Public Prosecutor for CBI is that for the upset price fixed by the Court in the year 2006, auction cannot be conducted in the year 2008 without refixing the upset price for the relevant period. Therefore, the revision petitioner has violated the principles laid down in law and it has to be construed as a motivated one.
17. From the perusal of the records, it is seen that the demand notice was issued on 02.01.2008. Thereafter, proclamation notice was issued on 15.02.2008. Sale has been conducted on 24.04.2008. Therefore, from the perusal of the these dates, I am of the view that upset price has been fixed by the Debts Recovery Tribunal only in the year 2006 and the sale proclamation has been extended in upto January 2008. One cannot expect that the upset price has to be fixed once in a year and merely on that basis one cannot jump to the conclusion that the sale had been conducted only on the basis of the upset price fixed very long back. The prosecution must establish that the upset price fixed by the recovery officer is fixed very long back and he has auctioned the property after a very long gap. In this aspect one can not draw any adverse inference against the revision petitioner.
18. The third contention raised by the Special Public Prosecutor is that after sale, Debt Recovery Appellate Tribunal, Mumbai has stayed the further proceedings of sale. However, after the date of sale on the same day the auction purchaser has deposited 25% of the bid amount and the sale has been confirmed on 27.06.2008. The Revision Petitioner has confirmed the sale even when the stay is in force, which is a motivated one, according to the respondent.
19. It is not in dispute that the upset price was fixed at Rs.16,48,000/- and it has been defined as item I, item II and item III. For the entire land the value has been given by the Assessor at Rs.44,97,000/-. Whereas, the petitioner has fixed at Rs.15,00,000/- for item I and item II. The Sale has been knocked down on 24.04.2008 and on that day, 25% of bid amount has been deposited. The stay of operation of further proceedings of sale has been obtained Debt Recovery Appellate Tribunal, Mumbai in the month of August 2008. It is not the case of the prosecution that it has been communicated to the Recovery Officer or the action purchasers. The statements recorded by the CBI will indicate that after confirmation only, the stay order has been communicated to the Debt Recovery Tribunal. No such document is readily available to show that when stay order was communicated to the Debt Recovery Tribunal. Unless the prosecution proves that the sale certificate has been issued by the petitioner after communication of the stay order, which was passed by the Debt Recovery Appellate Tribunal, Mumbai, then only one can come to the conclusion as to whether the petitioner has any intention to help the auction purchasers or not. Therefore, I am of the view that this is also mixed question of fact that has to be seen only after examination of witnesses. Therefore, this aspect also has to be seen by the Trial Court before passing an order.
20. The next question raised by the learned counsel appearing for the CBI for adjudication is that the wife of the staff of Debt Recovery Tribunal, Madurai, has participated in the auction. Therefore, the auction itself is a motived one and hence he prayed that the revision has to be dismissed.
21. The counsel appearing for the Revision Petitioner contended that he is not aware of the lady, who is the wife of the staff of Debt Recovery Tribunal, Madurai, at the time of auction. Therefore, he prayed that petition has be allowed.
22. Even though there are some witnesses, who have been examined to speak about the participation of wife of the staff of Debt Recovery Tribunal, Madurai, in that auction, this aspect has to be seen only after examination of witnesses or with the documents. Therefore, this Court is not expressing any view on this aspect . Hence, the trial Court is at liberty to decide the matter on the basis of the evidence available before the Court.
23. The counsel for the auction purchaser contended that he has purchased the property in accordance with law and thereafter the respondent had not taken any steps even after receiving the amount and now they are muddling with the judgment. Hence, he prayed that this criminal original petition has to be allowed.
24. The learned counsel appearing for CBI as well as the counsel for the fifth respondent in the criminal original petition contended that auction in question itself is construed as a motivated one. Hence, he prayed that both revision petition and the criminal original petition have to be dismissed.
25. The petitioner in the criminal original petition is the auction purchaser. He knocked the property for Rs.15,00,000/- and he is the highest bidder. Even though the respondent counsel is contended that even after stay of operation of further proceedings of sale by the Debt Recovery Appellate Tribunal, Mumbai, the sale has been confirmed. However, the respondent counsel could not produce any document before this Court to show as to when the stay order was communicated to the Debt Recovery Tribunal regarding the stay made by Debt Recovery Appellate Tribunal, Mumbai. Under such circumstances, one cannot attribute any motivation on the confirmation of the sale and it has to be seen only after examination of witnesses. After recording the evidence in the trial Court only one can decide about this aspect.
26. The learned counsel appearing for CBI contended that they have filed appropriate application before the Debt Recovery Appellate Tribunal, Madurai, to set aside the sale, which has been accepted by the revision petitioner and the petitioner in Criminal Original Petition who have been arrayed as accused. Under such circumstances, the bank cannot proceed with the matter. Hence, he prayed that both the petitions have to be dismissed.
27. It is common knowledge to say that when once the Creditor viz., the Bank itself wanted to set aside the sale, they ought to have returned the sale amount to the auction purchaser, if necessary after getting suitable orders or before the Recovery Tribunal. Further, once they decided to auction the property, they are expected to take possession from the hands of the tenants. To the curious enough, the borrower also participated in the trial and he is also opposing this application. This Court could not understand why the bank did not take any action against the borrower/judgment debtor. Therefore, this aspect has to be seen only after examining the witnesses. The Trial Court is directed to consider the above said aspects in the above said lines and answer this issue and dispose the case according to law.
28. The counsel appearing for the petitioner has contended that his objection at the time of according sanction has not been properly considered and even after according the sanction, this aspect has not been considered by the CBI Judge, at the time of framing of charges. Hence, he prayed that the revision has to be allowed.
29. From the perusal of the records, it appears that this Court directed the sanctioning authority, to consider certain observations made by this Court, at the time of according sanction. Any how, the sanctioning authority has accorded sanction against the accused on 25.05.2011 and he has been discharged from his official duty. Thereafter, the Trial Court has considered this aspect and later on passed the impugned order. Hence, at this juncture, I am not expressing any view upon this aspect and whatever this Court has observed is only with regard to the disposal of the present petitions. The findings given in these petitions will not in any way binding the parties on either side. The trial Court is directed to proceed with the trial and at the time of trial, the trial Court is directed to consider all the above aspects and specific finding has to be given. With these observation, the revision petition and the criminal original petition are disposed of.
jikr/gr/sml To
1.The Inspector of Police, CBI-ACB, Shastri Bhavan, Chennai.
2.The Branch Manager, Dhanalakshmi Bank Ltd., Urimala Complex, No.32, Station Avenue Road,Chembur,Mumbai.
3.The Registrar, Debts Recovery Tribunal, Tara Towers, Ring Road, Madurai.
4.The Inspector of Police, Central Bureau of Investigation, ACB, Shastri Bhavan, Chennai.
5.The Registrar, The Debts Recovery Appellate Tribunal,Mumbai.