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J.V.Salunke,PA WP.475.2006.901.doc The order dated 21st February, 2006 and the FIR which has been registered pursuant thereto are sought to be quashed in the present Petition.

13) Mr. Barve appearing for the Petitioners submits that the complaint as a whole does not disclose commission of any offence. All the materials that are referred in the complaint taken as a whole at their face value do not disclose commission of a cognizable offence. The argument of Mr. Barve is that the Petitioners being public financial institutions were performing their statutory duties and, under the statute, issued the notice at page 53 of the paper book. If the notice and its contents are perused, it does not indicate that offence punishable under section 383 of the Indian Penal Code has been committed. The notice has been issued under the powers conferred on the Petitioners by the SARFAESI Act. That there was a "security interest" and that a "secured asset" both within the meaning of the SARFAESI Act would empower the Petitioners to issue the subject notice. The notice therefore called upon the Petitioner to pay the sum.

The Petitioners will have all opportunities to defend the charge at the trial. Hence, at this stage, this Court should not interfere in its Writ Jurisdiction and the petition be dismissed.

15) With the assistance of the both, the learned Counsel appearing for the Petitioners and the party-in-person, we have perused the complaint and the subject FIR. The Petitioner No. 1 is a public financial Corporation and covered by the SARFAESI Act. By a notice issued on 15th December, 2005, copy of which is at page 53 of the paper book, the Petitioners accorded sanction to the housing loan on the condition of creation of an equitable mortgage in its favour and on other terms and conditions incorporated in the loan agreement. Then, the notice refers to the account details and states that the account of Respondent No. 2 has been classified as a non performing asset. That is in accordance with the directions/guidelines relating to assets classification issued by the National Housing Bank. In the light of the default committed in repayment of the principal debt and interest, the J.V.Salunke,PA WP.475.2006.901.doc notice calls upon the second Respondent and the guarantors to pay to the Petitioner No. 1 the amount stated to be the outstanding dues of Rs.3,61,030/- as on 31st December, 2005 within a period of 60 days from the date of service of the notice, failing which, the Petitioner No. 1 stated that it is free to invoke sub-section (4) of section 13 of the SARFAESI Act.

That the cheques on due presentation were not honoured is apparent from the allegations in the complaint itself. Therefore, there is no question of intentionally putting the complainant or the second Respondent in any fear of any injury. Secondly, by issuance of notice J.V.Salunke,PA WP.475.2006.901.doc under section 13(2) of the SARFAESI Act, we do not see how the offence of extortion is committed. The legal rights and vesting in the Petitioner No. 1 under the parliamentary statute having been exercised, the offence of extortion is not committed prima facie. Precisely, this was the issue before the Hon'ble Supreme Court and in the case of Mrs. Priyanka Srivastava (supra). One Prakash Kumar Bajaj son of Pradeep Kumar Bajaj had availed housing loan from Punjab National Bank Housing Finance Limited. The loan was taken in the name of Respondent No. 3 and his wife, namely Jyotsna Bajaj. As there was default in payment of the installments, the loan account was treated non performing asset in accordance with the guidelines framed by the competent authorities. Thereafter, the financial institution issued notice to the borrower under section 13(2) of the SARFAESI Act and in pursuance thereof, submitted an application on 5 th June, 2007 before the District Magistrate, Varanasi for taking appropriate action under section 13(4) of the SARFAESI Act. Thereafter, the Writ Petition of Respondent No. 3 before the High Court was dismissed with liberty to him to approach the Tribunal under section 17 of the SARFAESI. That is how the complaint came to be filed and against all the officers and managers of the financial institution and the allegation was that the offences punishable under section 163, 193 and 506 of the Indian Penal Code are committed. The criminal complaint was dismissed and a J.V.Salunke,PA WP.475.2006.901.doc Criminal Revision Application was preferred and the Additional Sessions Judge, Varanasi set aside the order passed and remanded the case to the Trial Court. Then, what is transpired is that the Hon'ble Supreme Court referred to the manner in which the Magistrate proceeded to take cognizance. Once the Hon'ble Supreme Court discussed that part of the controversy, what it has referred to are the proceedings before the Tribunal under the SARFAESI Act. Thereafter, a criminal case was filed and series of them and which are referred to in para 7 of the Judgment of the Hon'ble Supreme Court, pursuant to which FIR No. 298 of 2011 was registered. The FIR and then the allegations therein, the offer of one time settlement are all referred in the Hon'ble Supreme Court Judgment and subsequently what the Hon'ble Supreme Court cautioned is that the powers conferred vide section 156(3) of the Criminal Procedure Code cannot be exercised as a matter of course and mechanically by the Magistrates. They are expected to apply their mind and consider as to whether any offence under the penal Act has been committed for the Court to take note of the same. It is in these circumstances that the reliance that has been placed on paras 24 and 25 of this judgment is appropriate. These paras read as under:-

25. Issuing a direction stating "as per the application" to lodge an FIR creates a very unhealthy situation in the society and also reflects the erroneous approach of the learned Magistrate. It also encourages the unscrupulous and unprincipled litigants, like the respondent no. 3, namely, Prakash Kumar Bajaj, to take adventurous steps with courts to bring the financial institutions on their knees. As the factual exposition would reveal, he had prosecuted the earlier authorities and after the matter is dealt with by the High Court in a writ petition recording a settlement, he does not withdraw the criminal case and waits for some kind of situation where he can take vengeance as if he is the emperor of all he surveys. It is interesting to note that during the tenure of the appellant No. 1, who is presently occupying the position of Vice-President, neither the loan was taken, nor the default was made, nor any action under the SARFAESI Act was taken. However, the action under the SARFAESI Act was taken on the second time at the instance of the present appellant No. 1. We are only stating about the devilish design of the respondent No. 3 to harass the appellants with the sole intent to void the payment of loan. When a citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. As we have noticed, he has been able to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an application under Section 156(3) Cr. P. C. is a simple application to the court for issue of a direction to the investigating agency. We have been apprised that a carbon copy of a document is filed to show the J.V.Salunke,PA WP.475.2006.901.doc compliance of Section 154(3), indicating it has been sent to the Superintendent of police concerned."