Gujarat High Court
Mr. Suhas Subhash Gokhale vs State Of Gujarat on 27 October, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/4201/2019 JUDGMENT DATED: 27/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 4201 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MR. SUHAS SUBHASH GOKHALE
Versus
STATE OF GUJARAT
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Appearance:
MR CHINMAY M GANDHI(3979) for the Applicant(s) No. 1,2,3
MR MB GANDHI(326) for the Applicant(s) No. 1,2,3
for the Respondent(s) No. 2.1
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1
VATSAL R PATEL(9349) for the Respondent(s) No. 2,2.2,2.3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 27/10/2021
ORAL JUDGMENT
1. Rule. Mr. Pranav Trivedi learned APP and Mr. Vastal R.Patel, learned advocate waive service of notice of rule on behalf of respective parties.
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2. The petitioners have approached this Court under Section 482 of the Code of Criminal Procedure, 1973, (for short "the Cr.P.C.") praying to quash and set aside the Criminal Case No.44036/2018, the Criminal Inquiry No.3162/2018 pending before the Court of learned Chief Judicial Magistrate Vadodara and the summons issued.
3. The petitioners before this Court are the office bearer of Cosmos Cooperative Bank Limited, which is a Multi-State Cooperative Bank, having its branches in different part of the country. It is stated that Criminal Case No.44036/2018 vide Criminal Inquiry No.3162/2018 was filed before the Chief Judicial Magistrate, Vadodara for the offence alleged under Section 82 of the Indian Registration Act, 1908 as well as under Section 409 and 120B of IPC.
3.1 Mr. Jamnadas Vishnubhai Patel was party respondent no.2 in the matter. After his death his wife and two sons were brought on record by an order dated 27.09.2021 as legal heirs of the deceased Jamnadas Vishunbhai Patel.
3.2 In Criminal Inquiry No.3162/2018 on Page 2 of 23 Downloaded on : Sat Oct 30 00:32:29 IST 2021 R/CR.MA/4201/2019 JUDGMENT DATED: 27/10/2021 verification, the Judicial Magistrate First Class, 4 th Court Vadodara has passed an order for issuance of summons against the accused on 29.12.2018 and subsequently the said inquiry came to be registered as Criminal Case No.44036/2018, wherein Jamnadas Vishnubhai Patel was a complainant and present petitioners are arraigned as accused.
3.3 Deceased Jamnadas Vishnubhai Patel had alleged before the Chief Judicial Magistrate, Vadodara that the credit facility was availed by M/s. Dinesh Pharmaceuticals Pvt. Ltd., from the erstwhile Unnati Cooperative Bank Ltd. besides other security, against personal security in the form of its Director, the complainant and his family personal property situated at Moje Babajipura, Rajmahal Road, B-Tika No.14/4, Survey No.24/4/A known as 'Yamuna Kunj', Mahavir Colony, Rajmahal Road, Vadodara. The said property was secured through mortgage deed registered at Sr.No.1059/99, Regn. No.BRA-1-3279/2002 dated 12.07.2002. The complainant had alleged that in defiance of the stipulation describing the mortgage deed, the Cosmos Cooperative Bank Ltd. posts its merger with Unnati Cooperative Bank Ltd., claiming to become secured creditor in place of Unnati Cooperative Bank Ltd., initiated recovery against the said defaulter M/s. Dinesh Pharmaceutical Pvt. Ltd. under the relevant provision of the SARFAESI Act and subsequently took possession of Page 3 of 23 Downloaded on : Sat Oct 30 00:32:29 IST 2021 R/CR.MA/4201/2019 JUDGMENT DATED: 27/10/2021 the mortgage property specifically the ground and first floor which were mortgaged through the mortgaged deed towards the recovery of purported dues.
3.4 It is alleged that the auction had failed due to lack of any bidder, therefore, very conveniently the offer came to be accepted by the Managing Director of the Cosmos Cooperative Bank Ltd. acting on behalf of the Cosmos Cooperative Bank Ltd. and sold the said property through certificate of sale, Registration No.BRA-1- 3319/2014 on 28.03.2014 to itself as Cosmos Cooperative Bank Ltd.
3.5 It has been alleged by the complainant that the construction on a mortgaged property in C.S. No.24/4/A in Vadodara comprised of basement, ground floor, first floor, third floor and fourth floor, become apparent from the Mutation Entry No.310 dated 03.03.1964, Entry No.292 dated 19.06.1978 and Entry No.174 dated 22.02.1985, which stand reflected in the Property Card, much before the execution of the mortgage deed in favour of Unnati Cooperative Bank Ltd.
3.6 It was alleged by the complainant that debtor M/s. Dinesh Pharmaceutical Pvt. Ltd. through its Director, the complainant and his family had mortgaged Page 4 of 23 Downloaded on : Sat Oct 30 00:32:29 IST 2021 R/CR.MA/4201/2019 JUDGMENT DATED: 27/10/2021 and subsequently handed over the possession of the mortgaged ground floor and first floor to the Cosmos Cooperative Bank Ltd. It is alleged that the creditor claimed the possession on the basis of the merger with Unnati Cooperative Bank Ltd. It is stated that the complainant retained remaining 2nd, 3rd and 4th floor with himself and his family members.
3.7 The proceedings conducted by the opponent under SARFAESI Act, 2002 and subsequent sale of the property by the opponent through the sale certificate, Registration No.BRA-1-3319/2014 have been declared illegal by this Court in Letters Patent Appeal No.1290/2016 by an order dated 09.04.2018 and in adherence to the order, the present petitioners with intention to hand back the possession of the property to the complainant and his family through communication being Ref:GRO/L&R/29/2018-19 dated 07.05.2018 invited the complainant to take possession of the property as per direction of this Court. The complainant stated that thereafter he was handed over the possession of the confiscated property pending cancellation of the sale certificate. The complainant alleges that the sequence of events clearly indicate the criminal conspiracy of the petitioners, to wrest the property by hook or crook for its own profiteering purpose.
Page 5 of 23 Downloaded on : Sat Oct 30 00:32:29 IST 2021R/CR.MA/4201/2019 JUDGMENT DATED: 27/10/2021 3.8 It is also alleged by the complainant that comparison of the description of property mortgaged through mortgage deed, the certificate of sale and the description of property in the Notice under Section 13(2) of the SARFAESI Act, 2002 dated 02.11.2006 revealed that the authorized officer knew the extent of property mortgaged with the Bank, which again gets confirmed through the description of property in the possession notice dated 19.03.2007 issued by the Bank. The complainant has alleged that the Bank though aware of the extent of construction in the property and the property mortgaged being only of ground floor and first floor, conspired to secure unjust gains by misrepresenting / misstating the total area of construction in the mortgaged property under its authority to sell and has through such misrepresentation / misstatement of authority to sell, got the sale certificate registered before the Registrar Office at Vadodara and thereby sold the further floors which comprises of 2nd, 3rd and 4th floor in the existing construction i.e. 9664 sq. ft., while the complainant stated that it could only be 4,400 sq. ft., as stipulated in the mortgage deed.
3.9 It is alleged that the registration certificate of sale through the authorized officers of the Bank conveying the said property in their own names clearly shows the purpose of having unjust gains/profiteering and thus the Bank after having taken possession of the Page 6 of 23 Downloaded on : Sat Oct 30 00:32:29 IST 2021 R/CR.MA/4201/2019 JUDGMENT DATED: 27/10/2021 property under the SARFAESI Act, had illegally transferred to itself the part of the property, which it had no legal entitlement and thereafter through authorized officer of the Bank affected the registration of certificate of sale by resorting to misstatement and misrepresentation; thereby has committed the offence under Section 82 of the Indian Registration Act and Section 405 of IPC read with Section 120B of the IPC.
4. Advocate Mr. Chinmay M. Gandhi submitted that the present petitioners as an individual authority of the Bank would have no personal interest in any of the transactions and proceedings initiated under the SARFAESI Act. He stated that the allegations are made under Section 82 of the Indian Registration Act and sections of IPC, which actually considering the facts and sequence of the events could not be invoked in the complaint.
4.1 Mr. Gandhi submitted that the authorized officer of the bank had produced their statement in Letters Patent Appeal and the Division bench of this Court did not feel it necessary to deal with all the contentions raised in the appeal and by going through the statements of the authority concerned, the Letters Patent Appeal was allowed and the proceedings initiated under SARFAESI Act with regard to the disputed property Page 7 of 23 Downloaded on : Sat Oct 30 00:32:29 IST 2021 R/CR.MA/4201/2019 JUDGMENT DATED: 27/10/2021 known as 'Yamunakunj' in Mahavir Colony was declared illegal. Resultantly, the sale certificate and sale deed in favour of the respondent Bank came to be quashed and set aside.
4.2 Mr. Gandhi stated that the Division Bench was pleased to grant liberty to the Bank to initiate fresh proceedings in accordance with the provisions of SARFAESI Act and Rules framed thereunder and the complainant was directed not to transfer or create any third party interests on the property in question for a period of six weeks from the date of passing of the order. Mr. Gandhi further stated that after the order of the Division Bench in Letters Patent Appeal, the whole situation was reversed. The Bank had restored the original position by handing over the possession of the property to the complainant. According to the observations made in the order of the Division Bench in Letters Patent Appeal No.1209 of 2016 in Special Civil Application No.10388 of 2014 with Civil Application No.1 of 2017, Mr. Gandhi submitted that, it was as good as settlement between the parties and the possession was restored by filing an affidavit before the Division Bench and a letter was addressed to the respondent no.2 - complainant on 07.05.2018 indicating the intention of the Bank to restore the possession and accordingly Mr. Gandhi stated that on 10.05.2018 at 12.00 noon the Page 8 of 23 Downloaded on : Sat Oct 30 00:32:29 IST 2021 R/CR.MA/4201/2019 JUDGMENT DATED: 27/10/2021 possession was handed over and the possession receipt was executed by the respondent no.2 acknowledging the said fact on receiving the possession.
4.3 Mr. Gandhi stated that the panchnama was drawn in presence of other officers. In spite of such fact, situation and circumstances which arose after the decision of the Division Bench, the impugned complaint came to be filed, which Mr. Gandhi stated that, is absolute abuse of process of law, is totally false contentions and the complainant has no right in law to file such complaint, which may possibly be to thwart the liberty granted to the Bank to process as per SARFAESI Act by the Division Bench.
4.4 Mr. Chinmay Gandhi submitted that in spite of this fact being disclosed before the Chief Judicial Magistrate by the complainant himself, the learned Judge failed to appreciate the order of the Division Bench in its true perspective and the complaint came to be entertained and under verification the summons were ordered to be issued on 29.12.2018 against the present petitioners. Mr. Gandhi further submitted that at the time of taking the possession of the property the complainant has neither raised any objection nor any action was there on part of the complainant during the public attachment, Page 9 of 23 Downloaded on : Sat Oct 30 00:32:29 IST 2021 R/CR.MA/4201/2019 JUDGMENT DATED: 27/10/2021 nor any objection was raised during the registration of the certificate of sale.
4.5 In support of his submission, Mr. Gandhi relied on the judgment of Saleem Ahmed Vs. State, reported in AIR 2019 SC 3918 and the case of Central Bureau of Investigation SPE SIU (At New Delhi) Vs. Duncans Agro Industries Ltd. Calcutta, reported in AIR 1996 Supreme Court 2452.
5. Mr. Vatsal R.Patel, learned advocate for respondent nos.2.1, 2.2 and 2.3 submitted that, the original respondent no.2 - Mr. Jamnadas Patel was the Managing Director of M/s Dinesh Pharmaceutical Pvt. Ltd., company incorporated under the Companies Act, 1956 and was engaged in the business of manufacturing of chemical products. The said Company availed term loan facilities as well as bill discounting facility from the Unnati Cooperative Bank Ltd. in the year 1998 under the loan facilities, besides other securities, personal security in the form family property of the respondent no.2 was put in mortgage.
5.1 Mr. Patel stated that the mortgage deed clearly described immovable property admeasuring 5,375 sq. ft. with the construction area of 9664 sq. ft. He states that the post-merger with the Unnati Cooperative Bank Ltd.
Page 10 of 23 Downloaded on : Sat Oct 30 00:32:29 IST 2021R/CR.MA/4201/2019 JUDGMENT DATED: 27/10/2021 recovery action was initiated against M/s Dinesh Pharmaceutical Pvt. Ltd. under the SARFAESI Act and subsequently the possession was taken over and when the Bank failed in the auction, the Managing Director of the Cosmos Cooperative Bank Ltd. very conveniently accepted the offer on behalf of the Bank and sold the property through certificate of sale to itself which Mr. Patel stated that, is a criminal action under the criminal conspiracy of all the petitioners.
5.2 Mr. Patel stated that the documents discloses that ground and first floors were mortgaged, however, the Bank took over the possession of all the four floors of the property and thereby had committed breach of Rule 8 and 9 of the Security Interest (Enforcement) Rules, 2002 by selling the property by way of auction which was totally illegal. Mr. Patel stated that had it not been the proceedings by way of Special Civil Application No.10388 of 2014 and the decision in Letters Patent Appeal, the petitioner Bank would have retained the possession of 2 nd 3rd and 4th floor of the property and had deprived the respondents of their legitimate rights and therefore stated that the complaint before the Chief Judicial Magistrate under Section 82 of the Indian Registration Act, 1908 and under Section 409 and 120B of IPC is just, proper and legal and does not require any interference by this Court under Section 482 Cr.P.C.
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6. Letters Patent Appeal No.1209 of 2016 in Special Civil Application No.10388 of 2014, was preferred by the original respondent no.2 - Jamnadas Vishnubhai Patel being aggrieved by the judgment and order passed in Special Civil Application No.10388 of 2014, wherein it has been observed as under:
"7. In view of the statement made on oath by the authorized officer of the respondent bank, as referred above, which is filed today, it is not necessary to deal with all the contentions raised in this appeal. In view of the statement made, as referred above, this Letters Patent Appeal can be allowed on the ground stated in the statement itself. In view of the same, Letters Patent Appeal is allowed. The judgment dated 9.9.2016 passed by the learned single Judge in Special Civil Application No. 10388 of 2014 stands set aside. Consequently, the proceedings initiated under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 with regard to property situated at Moje Babajipura Rajmahal Road B Tika No.14/4, City Survey No. 24/4/A known as Mahavir Colony "Yamunakunj" are declared as Page 12 of 23 Downloaded on : Sat Oct 30 00:32:29 IST 2021 R/CR.MA/4201/2019 JUDGMENT DATED: 27/10/2021 illegal, as much as the respondent Bank had no authority to initiate proceedings under the SARFAESI Act, during the relevant time. Resultantly, the sale certificate/sale deed in favour of the respondent Bank is quashed and set aside. The Civil Application stands disposed of.
8. The respondent Bank shall handover possession of the said property, i.e. the property situated Moje Babajipura Rajmahal Road B Tika No.14/4, City Survey No. 24/4/A known as Mahavir Colony "Yamunakunj" to the appellants within a period of two weeks from the date of receipt of this order.
9. It is made clear that it is open to the respondent bank to initiate fresh proceedings in accordance with the provisions of the SARFAESI Act and the rules framed thereunder. The appellants shall not transfer or create any third party interests on the property in question for a period of 6 weeks from today."
7. In view of the statement made by the authorized officer of the Bank, the Division Bench had not dealt with the contentions raised in the appeal. The relevant part of the statement made on oath by the Page 13 of 23 Downloaded on : Sat Oct 30 00:32:29 IST 2021 R/CR.MA/4201/2019 JUDGMENT DATED: 27/10/2021 authorized officer of the bank is reflected in the judgment which reads thus:
"As the action of the answering respondent bank is prior to January 2013, in view of the judgment delivered by this Honourable Court in Special Civil Application No. 1012 of 2014 and cognate matters, at paragraph 43, the action taken prior to amending act cannot be maintained, but at the same time, it will be open for the respondent bank to initiate fresh action under Securitisation Act. The bank will also take necessary steps to get the sale certificate cancelled and get the entry in the records of the Registrar reversed. Accordingly, the bank is withdrawing the impugned action commencing with the notice under Secularization Act and would hand over the possession of the property to the applicants with a request to the Honourable Court to direct the applicant to maintain the status quo in respect of the property for a period of 6 weeks from today."
8. In compliance of the order and judgment, the Page 14 of 23 Downloaded on : Sat Oct 30 00:32:29 IST 2021 R/CR.MA/4201/2019 JUDGMENT DATED: 27/10/2021 possession of the property was restored on 10.05.2018. The possession receipt was acknowledged by the respondent no.2 and panchnama was drawn in presence of the officers of the Bank. The respondent no.2 had never raised any objections when the possession of the property was received by him. The judgment in Letters Patent Appeal has not been challenged by the respondent no.2 before the Hon'ble Supreme Court.
9. In case of Central Bureau of Investigation SPE SIU (At New Delhi) Vs. Duncans Agro Industries Ltd. Calcutta (supra), advocate of the concerned respondents in the matter has submitted before the Hon'ble Supreme Court, as under:
"24. Mr. Shanti Bhushan has also submitted that even if a view is taken that an offence of cheating as alleged in FIR is prima facie maintainable the offence of cheating is compoundable. In Civil proceedings, the claims of both the Banks have been satisfied and the disputes have been compromised in the civil suits filed by the Banks. Accordingly, it will no longer be a fit case for carrying out further investigation in respect of the offences alleged. Referring to a recent decision of this Court in Phiroze Dinshaw Lam v. Union of India (1996) 3 JT (SC) (3), Mr. Shanti Bhushan has submitted that in that case although a Page 15 of 23 Downloaded on : Sat Oct 30 00:32:29 IST 2021 R/CR.MA/4201/2019 JUDGMENT DATED: 27/10/2021 clear offence of fabrication of evidence had been established against Godrej Company and its Directors and officials, the Supreme Court set aside the order of the High Court directing a complaint to be filed holding that in view of all the circumstances including the payment of the Excise Duty, it would not be expedient to proceed against the accused person. Mr. Shanti Bhushan has submitted that any further investigation in the matter of offences alleged in the F.I.R.s, after such a long lapse of time and after the claims of the Banks have been satisfied in Civil Suits instituted by the Banks, is not at all expedient and on that score also no interference by this Court under the discretionary jurisdiction under Article 136 of the Constitution against the impugned decision of the High Court is not called for."
9.1. After considering the submission of the Advocates on record, it was observed in the said judgment in paragraph-27 as under:
" 27. In the instant case, a serious dispute has been raised by the learned counsel appearing for the respective party as to whether on the face of the allegations, an offence of criminal breach of trust is constituted or not. In our view, the expression 'entrusted with property' or Page 16 of 23 Downloaded on : Sat Oct 30 00:32:29 IST 2021 R/CR.MA/4201/2019 JUDGMENT DATED: 27/10/2021 'with any dominion over property' has been used in wide sense in Section 405 I.P.C. Such expression includes all case in which goods are entrusted, that is, voluntarily handed over for a specific purpose and dishonestly disposed of in violation of law or in violation of contract. The expression 'entrusted appearing in Section 405 I.P.C. is not necessarily a term of law. It has wide and different implication in different context. It is, however, necessary that the ownership or beneficial interest in the ownership of the property entrusted in respect of which offence is alleged to have been committed must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit. The expression 'Trust' in Section 405 I.P.C. is a comprehensive expression and has been used to denote various kinds of relationship like the relationship of trustee and beneficiary, bailer and bailee, master and servant, pledger and pledger. When some goods are hypothecated by a person to another person. the ownership of the goods still remains with the person who has hypothecated such goods. The property in respect of which criminal breach of trust can be committed must necessarily be the property of some person other than the Page 17 of 23 Downloaded on : Sat Oct 30 00:32:29 IST 2021 R/CR.MA/4201/2019 JUDGMENT DATED: 27/10/2021 accused or the beneficial interest in or ownership of it must be in other person and the offender must hold such property in trust for such other person or for his benefit. In a case of Pledge, the pledged article belongs to some other person but the same is kept in trust by the pledgee. In the instant case, a floating charge was made on the goods by way of security to cover up credit facility. In our view, in such case for disposing of the goods covering the security against credit facility the offence of criminal breach of trust is not committed. In the facts and circumstances of the case, it, however, appears to us that the Respondents moved the High Court only in 1991 although the first Fir was filed in 1987 and the second was filed in 1989. The CBI, therefore, got sufficient time to complete the investigation for the purpose of framing the charge.
9.2 Thereafter, in the said judgment it was held that there was enough justification for the High Court to hold that the case was basically a matter of civil dispute. The Bank had already filed suits for recovery of the dues of the Banks on account of credit facility and the said suits have been compromised on receiving the payments from the concerned Companies, and even if, an offence of cheating is prima facie constituted, such offence is Page 18 of 23 Downloaded on : Sat Oct 30 00:32:29 IST 2021 R/CR.MA/4201/2019 JUDGMENT DATED: 27/10/2021 compoundable offence and the compromise decrees passed in the Suits instituted by the Bank for all intents and purposes, amount to compounding the offence of cheating and therefore, the Hon'ble Supreme Court held that proceeding further with the complaint would not be expedient.
10. In Saleem Ahmed Vs. State (supra), the Hon'ble Supreme Court while dealing with the proposal of settlement with regard to the issue of bill for theft, observing the disputes being amicably settled and the said settlement being recorded without any pressure, coercion and undue influence. The Apex Court observed in paragraph nos.16 to 19 as under:
"16. In our opinion, the effect of passing of an award was that dispute in relation to the demand raised by the BSES was settled amicably between the parties leaving no dispute surviving. The original demand was for Rs.97,786/ whereas the dispute was settled at Rs.83,120/ in full and final satisfaction of the claim made by the BSES against the appellant.
17. The dispute between the parties, therefore, came to an end for all purposes consequent upon passing of an award except to the extent of recovery of the awarded amount of Rs.83,120/. It is not in dispute that the appellant paid the Page 19 of 23 Downloaded on : Sat Oct 30 00:32:29 IST 2021 R/CR.MA/4201/2019 JUDGMENT DATED: 27/10/2021 awarded amount to the BSES in terms of the award dated 27.02.2015 and the same was also accepted by the BSES without any protest. The award thus stood fully satisfied.
18. We also find that the award did not contain any condition granting liberty to the BSES to file an FIR against the appellant under the Electricity Act notwithstanding settlement of the dispute and passing of an award in relation to demand in question. On the other hand, the conditions set out in the award, in clear terms, record that the dispute has been settled in full and final satisfaction of the demand in question. It is not in dispute that Section 152 of the Electricity Act empowers the officer concerned to compound the offences punishable under the Electricity Act.
19. In our view, if the BSES was so keen to file FIR against the appellant under the Electricity Act then either they should not have settled the matter through Lok Adalat or while settling should have put a condition in the award reserving therein their right to file FIR notwithstanding settlement of the dispute in question. This was, however, not done."Page 20 of 23 Downloaded on : Sat Oct 30 00:32:29 IST 2021
R/CR.MA/4201/2019 JUDGMENT DATED: 27/10/2021 10.1 The Hon'ble Supreme Court thus had observed that if the BSES was keen to file FIR under the Electricity Act, then either they should not have settled the matter through Lok Adalat or while settling so ought to have put in condition in the award reserving their right to file an FIR notwithstanding the settlement of the dispute.
11. Herein in this present case, the statement on oath of the authorized officer of the bank was produced before the Division Bench in Letters Patent Appeal No.1290 of 2016. The original respondent no.2 had never raised any objection to the said statement while he very willingly accepted the possession of the property which was handed over to him on 10.05.2018 in compliance of the judgment and order in Letters Patent Appeal, acknowledging the possession receipt panchnama was drawn. The respondent no.2 at the relevant time had not raised any objection nor had he filed any proceedings before the Apex Court challenging the judgment of the Division Bench rendered in Letters Patent Appeal No.1290 of 2016. The judgment passed by the learned single Judge in Special Civil Application No.10388 of 2014 was set aside. Consequently, all the proceedings under the SARFAESI Act in regard to the disputed property was declared as illegal and it was held by the Division bench that the respondent Bank had no authority to initiate proceedings under the SARFAESI Act during Page 21 of 23 Downloaded on : Sat Oct 30 00:32:29 IST 2021 R/CR.MA/4201/2019 JUDGMENT DATED: 27/10/2021 the relevant time and therefore the sale deed which was in favour of the Bank was quashed and set aside and the Bank was ordered to hand over the possession of the property within a period of two weeks from the date of receipt of the order. It was, however, kept open to the respondent Bank to initiate any fresh proceedings under the provisions of SARFAESI Act and the rules thereunder. Subsequent direction was also given by the Division Bench to the complainant not to transfer or create any third party interests on the property in question for a period of six weeks from the date of judgment and this judgment was accepted by the complainant.
12. The present respondents appears as heirs of respondent no.2 - original complainant would have no ground now to carry on with the criminal proceedings. The complainant was before the Judicial Magistrate, Vadodara by preferring Criminal Complaint No.44036 of 2018. After the judgment and order, in compliance, the action of the respondent to follow the same amounts to acquiescence to all forms of the proceedings. Proceedings under the SARFAESI Act at the relevant time was declared as illegal and sale certificate and sale deed was quashed and set aside coupled with the liberty to the Bank to initiate fresh proceedings in accordance to the SARFAESI Act and Rules.
Page 22 of 23 Downloaded on : Sat Oct 30 00:32:29 IST 2021R/CR.MA/4201/2019 JUDGMENT DATED: 27/10/2021 12.1 Thus, the impugned complaint is abuse of process of law, cannot be permitted to be continued. Such complaint would amount to a weapon in the hands of the complainant to wreck personal vengeance specifically when the disputes raised have been settled by way of a judgment in Letters Patent Appeal No.1290/2016.
13. In view of the above observations and reasonings, petition is allowed. The Criminal Case No.44036/2018 and the summons are quashed and set aside qua the present petitioners. Rule is made absolute. Direct service is permitted.
(GITA GOPI, J.) Pankaj Page 23 of 23 Downloaded on : Sat Oct 30 00:32:29 IST 2021