Anjani Prasad vs State Of Jharkhand

Gautam Kumar Choudhary, J

Heard, learned counsel for the parties.

The instant Cr. M. P. has been filed for quashing the entire criminal proceeding including the summoning order dated 28.11.2017 passed by learned Judicial Magistrate, Palamau in Complaint Case No.1132 of 2016 whereby and whereunder cognizance of the offence has been taken under Sections 406, 420, 34 of the Indian Penal Code.

Petitioner is accused no.2 and the complainant is the auction purchaser of the land which was mortgaged with Punjab National Bank, Daltonganj Branch and the petitioner is the authorized officer of Zonal Office, Punjab National Bank.

The case of the complainant is that 4.5 decimal of land was mortgaged by one Sanjiv Nayan to raise loan and in criminal conspiracy by the accused persons including the petitioner, the land, in question was sold by the mortgagor to the husband of one Parmila Devi. The process of auction was initiated with respect to the said plot and the complainant purchased it after depositing the total amount of Rs.18 Lakhs. After ten months of the conclusion of the mortgage proceedings, the said land could not be registered in the name of the complainant as it was a disputed plot and suppressing this fact, the property was put on auction.

A notice was also published by Parmila Devi on 08.10.2015 that the land, in question, was disputed and despite this, the auction-sale was held.

During enquiry, the statement of the complainant was taken and three witnesses were examined following which the impugned summoning order has been passed.

It is submitted by learned counsel for the petitioner that the property was duly mortgaged with the Bank and a sum of Rs.18 Lakhs was advanced on 18.08.2007.

On default in payment, notice was issued to Sri Sanjiv Nayan on 23.08.2013 for a total outstanding amount of Rs.25,65,937/-.

On non-compliance of the notice, the Bank vide letter dated 21.01.2014 decided to take possession of the secured asset, detailed in the said notice which was 350 Square feet land in the name of said Sanjiv Nayan Kumar and he was asked to deliver the possession of the said plot on or before 07.02.2014.

Learned Special P.P. has defended the impugned order. It is submitted that the complainant as well as enquiry witnesses have fully supported the case. The petitioner being the Bank Officer, had put on auction the mortgaged land which had been sold to third party before it was put on auction.

The facts of the case are not in dispute that land in question measuring 4.5 decimal was mortgaged by one Sanjiv Nayan against which loan of Rupees Eighteen Lakhs was sanctioned vide sanction letter dated 18.08.2007 (Annexure-3). The sale was executed by Sanjiv Nayan in favour of Pramila Devi on 14.05.2010 which will be apparent from the letter addressed by Pramila Devi on 08.10.2015 to the Branch Manager, Punjab National Bank, Daltonganj, which letter is part of the complaint. Bank had a charge by way of mortgage on the land which was sold by the loanee-Sanjiv Nayan.

The petitioner had no knowledge about the sale and the property in question was put up for auction vide order dated 27.11.2015 in S.A. No.92 of 2015. The Debt Recovery Tribunal under Section 17 of the Securitization Act, passed the order permitting the Bank to proceed for sale for enforcement of security for the dues outstanding. It was in pursuant to this order that the land was put on auction and there was no intention on the part of this petitioner to defraud the complainant.

Dishonest intention is the essence of Sections 420 and 406 of the Indian Penal Code and in its absence, no prima facie case is made out. At the relevant time, the petitioner was authorized officer at Zonal Office, Bokaro and cannot personally be liable for the same.

Under the circumstance, impugned order and entire criminal proceeding is hereby, quashed.

Criminal Miscellaneous Petition is allowed.