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Judgment
N. Ananda, J.—The petitioners in Crl. P. Nos. 641/2014 and 7927/2013 are arrayed as accused Nos. 1 to 9 in PCR No. 434/2013, which has been referred for investigation under Section 156(3) of Cr.P.C. The Electronic City Police have registered Crime No. 420/2013 for offences punishable under Section 120-B, 409, 420, 423, 465, 467, 468, 471, 474 of IPC and Section 62(1)(A) of the Indian Stamp Act. The petitioners have sought for quashing the complaint and consequential investigation.
I have heard Sri. Shreyas Jayasimha and Sri. G.L. Vishwanath, learned counsel for petitioners, learned HCGP for respondent No. 1 and Sri. K. Suman, learned counsel for respondent No. 2 (complainant).
In Para 3 of the complaint there is specific reference to date, time and place of one of the offences alleged in the complaint. Para 3 of the complaint reads thus:
"The offence in concerned to this complaint as occurred on 08/10/2013 at about 8 A.M. at No. 109 (Sy. No. 109) Near Patalamma Temple, Singasandra Village, Begur Hobli, Bangalore-560 010." 4. The un-controverted averments of the complaint are as follows:-
"The complainant is a doctor by profession and is the proprietor of M/s. Sridevi Hospital, 16th Main Road, Anna Nagar, Chennai. On the request of the complainant, first accused (The Indian Overseas Bank, Arumbakkam Branch, Chennai, for short "IOB") sanctioned a loan of Rs. 13.50 Crores on 20.06.2006 and the agreed rate of interest was 11.50% p.a. The loan was sanctioned to enable the complainant to purchase property bearing Plot No. ML-8D being a portion of land in Plot No. MYS 357, Sy. No. 2, in Peenya Plantation, Yeshwanthapura Hobli, Bangalore North Taluk. The land was totally measuring 1.46 acres. The aforesaid property was purchased by the complainant under registered Sale Deed dated 12.07.2006 and the entire sale consideration was paid by the first accused (IOB). The registered Sale Deed dated 12.07.2006 was taken by the first accused as security for the loan. 5. The controverted averments of the complaint are as follows:
The accused Nos. 1 to 4 in collusion with each other collected a sum of Rs. 3,00,000/- from the complainant as safe deposit to avoid stamp duty payable to State of Karnataka. The first accused has issued a clearance certificate to the complainant on 02.09.2010. The complainant approached the first accused and its officials (accused Nos. 2 to 4) with a request to return the registered Sale Deed dated 12.07.2006 and other documents and he was shocked to know that the first accused had handed over the documents to fifth accused. Later the complainant came to know that the first accused through its officials, i.e., accused Nos. 2 to 4 had assigned the right of recovery of loan to the fifth accused. As per the statements furnished in the complaint, the complainant had paid a sum of Rs. 2.94 Crores to first accused as on 10.09.2011. It is alleged that the accused in collusion with each other, with a mala fide intention has drawn more than Rs. 7,80,00,000/- from the account of the complainant, thereby cheated the complainant. Accused Nos. 1 to 4 with a mala fide intention to grab the property of the complainant have kept the documents of title in the following places:
(i) writers corporation No. 159/1''A'' GST Road, Vandalur, Chennai-48 without the knowledge and consent of the complainant and those documents are,
(a) Plot No. 8D, New Municipal No. 5, in survey No. 2, Peenya Plantation, Yeshavanthpur Hobli, Bangalore North Taluk, measuring 1.46 acres of land, and building,
(b) Plot No. 1620-A, 16th Main Road, Annanagar, Chennai, measuring 5350 Square feet with Building
(c) Plot No. 30, Poonamalle High Road, Koyambodo, measuring 7200 Square feet with building.
(d) Farm ''house'' of Mr. Padu Rangadu, measuring 2.5 Acres at Keezanur, on Red hills, Thiruvellore High way, Survey No. 253/3 and 4,254/4, 204/1A and 242/2B,
(ii) Some of the documents have been kept at The Ruby, 10th Floor, No. 29, Senapathi Bapath Marg, Dadar West, Mumbai.
That on 08.10.2013 at about 8.00 a.m., the accused persons came near his house, they had brought some anti social elements, at the instigation of third accused, T.V. Ganesh and also at the instigation of fifth accused, threatened the complainant with dire consequences and demanded the complainant to pay the amount due to the accused. The accused Nos. 1 to 4 in collusion with other accused had entered into an agreement of assignment dated 31.08.2010 purported to be the agreement of assignment executed by the accused Nos. 1 to 4 in favour of accused No. 5. With this, the complainant prays to take cognizance for the offences punishable under Section 120-B, 409, 420, 423, 465, 467, 468, 471, 474 of IPC and Section 62(1)(A) of the Indian Stamp Act.
The learned counsel appearing for accused Nos. 1 to 4 has made following submissions:
(i) Accused Nos. 2 to 4, who were the officials of the Indian Overseas Bank (accused No. 1) retired from their services on 31.07.2009, 29.09.2012 and on 29.02.2012 respectively and the documents as per Annexure- "D" letter dated 31.07.2009, Annexure-"E" letter dated 29.09.2012 and Annexure-"F" letter dated 29.02.2012 would establish the date of retirement of accused Nos. 2 to 4. In the circumstances, the allegations of complainant that on 08.10.2013 at about 8.00 a.m., accused Nos. 2 to 4, who are the residents of Chennai, had come to Bangalore and they had gone to the house of the complainant to intimidate him and threatened his life with dire consequences are inherently improbable.
(ii) The first accused (IOB) had assigned its right to recover the debt in favour of fifth accused under an agreement of assignment dated 31.08.2010. Therefore the first accused was not at all concerned with the complainant after 31.08.2010. The complainant had filed W.P. No. 10985/2009 against the first accused (IOB) and the second accused (the then General Manager). The complainant had sought for time to repay the outstanding amount to the bank, which was in a sum of Rs. 18.89 Crores as on 01.06.2009. In W.P. No. 10985/2009 the High Court of Judicature at Madras, passed the following order:
"The petitioner has filed this Writ petition seeking for a direction to the respondents to dispose of their representation dated 01.06.2009 followed by reminder on 09.06.1990.
The petitioner availed Term Loan and cash credit facilities from the respondent Bank by mortgaging its immovable properties as collateral security and since there was default in repayment, the Bank issued a demand notice dated 03.04.2009 under Section 13(2) of SARFAESI Act 2002 recalling the outstanding amount of Rs. 18.89 Crores and also invoked Section 13(4) of the SARFAESI Act to take possession of the secured assets. It is stated that since no there was no reply from the respondent Bank for representation dated 01.6.2009 followed by reminder dated 09.6.2009 made the petitioner, the present writ petition has been filed.
When the writ petition was admitted on 19.6.2009, stay was granted in M.P. No. 1 of 2009 on condition that the petitioner shall pay a sum of Rs. 2.5 Crores by 31.7.2009 and a further sum of Rs. 2.5 Crores by 31.8.2009.
When the matter came up for hearing today, learned Senior Counsel appearing for the petitioner submitted that the order of this Court dated 19.6.2009 has been complied with by the petitioner by depositing a sum of Rs. 2.5 Crores on 31.7.2009 and a sum of Rs. 2.5 Crores on 31.8.2009 and he seeks further time for payment of balance amount of Rs. 12 Crores and also undertakes to pay the same by 31.12.2009.
Recording the submission made by the learned Senior Counsel, the petitioner is directed to pay the balance amount of Rs. 12 Crores by 31.12.2009 failing which the respondent Bank is at liberty to proceed with the matter in accordance with law.
With such observations, this writ petition is disposed of. No costs. Connected Miscellaneous Petition is closed."
The complainant is bound by the order passed in W.P. No. 10985/2009. In the wake of the order made in W.P. No. 10985/2009, the allegations made against the accused Nos. 2 to 4 that they had come near the house of the complainant on 08.10.2013 at about 8.00 a.m., and threatened him with dire consequences and that the IOB (first accused) had received blank signed cheques and blank signed documents from the complainant are inherently improbable. Therefore, the allegations of the complainant are liable to be quashed on this ground.
The learned counsel appearing for accused Nos. 5 to 9 had made the following submissions:
(i) That the first accused (IOB) had assigned the right to recover the debt of the complainant in favour of accused No. 5 under an agreement of assignment dated 31.08.2010 with the consent and knowledge of the complainant, which is obvious from the letter dated 22.07.2010 (Annexure-"F"), letter dated 01.09.2010 (Annexure-"G") and letter dated 07.09.2010 (Annexure-"H"). A notice was issued to the complainant under the provisions of SARFAESI Act, on 21.02.2012 to pay a sum of Rs. 18,67,20,210/-. Against the said notice, the complainant had filed W.P. No. 12639/2012 before the High Court of Judicature at Madras. The relevant portion of the order dated 18.06.2012 passed in W.P. No. 12639/2012 reads thus:
"2. The only grievance of the petitioner in this petition is that in the event the petitioner is given sufficient time to settle the loan, they will be doing so and in the interregnum, they should be protected from further measures being taken by the respondent.
We have heard Mr. Venkatachalapathy, learned senior counsel appearing for the petitioner. Though the respondent has been served through privately and the name is shown in the cause list, none appeared.
The relief sought for in this petition seeking for extension of time for payment cannot be ordered by this Court, as it would amount to rescheduling the loan, which power is not conferred on this Court. Given the fact that the notice under Section 13(2) was dated 21.02.2012 and the petitioner had given representation as early as on 22.03.2012, which we have already extracted. In the said representation, the petitioner has made a grievance and consequently, sought for further time for payment. A perusal of the reply to the said representation shows that it was rejected only on the ground that the petitioner has not so far provided any credible/tied up proposal regularizing or resolving the account. The validity of the said communication of the respondent cannot be gone into by this Court in view of the provisions of the SARFAESI Act. Nevertheless, as the representation of the petitioner has been rejected for the above reason, we only observe that the petitioner would be at liberty to approach the respondent bank again by providing credible/tied up proposal regularizing or resolving the account and if that be so, the respondent shall consider the same on merits. As the petitioner has approached this Court bona fidely only seeking for extension of time, the same can also be considered by the respondent, as whatever the measures would be taken by the respondent is only to recover the loan amount."
The complainant is bound by the order made in W.P. No. 12639/2012. Therefore, the averments of complaint that the first accused had joined hands with the fifth accused and the first accused assigned right to recover debt due from the complainant in favour of the fifth accused to commit fraud on the complainant are inherently improbable and absurd.
In the circumstances, the complainant cannot be heard to say that the assignment of right to recover the debt by the first accused in favour of fifth accused, is a fraud committed on the complainant.
The fifth accused has also furnished list of cases filed by the complainant against the fifth accused before different forums.
Sri. K. Suman, learned counsel for complainant has made following submissions:
(i) Accused Nos. 1 to 4 have played fraud on the complainant by assigning the right to recover the debt in favour of fifth accused, without the knowledge and consent of the complainant (borrower).
(ii) The first accused had not created equitable mortgage of the property purchased by the complainant under registered sale deed dated 12.07.2006. The first accused had wrongfully taken possession of the registered Sale Deed dated 12.07.2006 thereby committed criminal breach of trust.
(iii) The letter dated 22.07.2010 (Annexure-"F"), letter dated 01.09.2010 (Annexure-"G") and letter dated 07.09.2010 (Annexure-"H") are forged documents.
(iv) The allegations of the complaint that the accused had come near the house of the complainant on 08.10.2013 at about 8.00 a.m., and intimidated him and threatened him with dire ''consequences are matters for investigation.
(v) The documents relied upon by the accused cannot be considered in a petition under Section 482 of Cr.P.C.
(vi) The allegations of complaint are not inherently improbable. Therefore, the complaint and consequent investigation cannot be quashed.
The learned counsel for complainant has relied upon decision reported in Ravindra Kumar Madhanlal Goenka and Another Vs. Rugmini Ram Raghav Spinners P. Ltd., to contend that while entertaining a petition under Section 482 Cr.P.C., the materials furnished by the defence cannot be looked into and the defence materials can be entertained only at the time of trial.
In my considered opinion, the submission of learned counsel for complainant that this Court while considering a petition under Section 482 Cr.P.C., cannot look into the materials furnished by the accused cannot be accepted for the following reasons:
In decision reported in Harshendra Kumar D. Vs. Rebatilata Koley Etc., , the Supreme Court referring to the earlier Judgments reported in State of Madhya Pradesh Vs. Awadh Kishore Gupta and Others, , has held that the observations made in the aforesaid Judgment that when the investigation was not complete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under Section 482 of the Code, it cannot be read to mean that the materials relied upon by the accused which are in the nature of public documents or the, materials which are beyond suspicion or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 of Cr.P.C.
In view of decision laid down in (2011) 3 SCC 353, the documents relied upon by the accused which are public documents and which are beyond suspicion or doubt can be considered by this court in exercise of its jurisdiction under Section 482 Cr.P.C.
On consideration of allegations made in the complaint, relevant documents, position of parties and the context in which the complaint was filed, I am of the opinion that petition has to be considered following the ratio laid down by the Supreme Court in a decision reported in 1992 SC 604 (in the case of Bhajan Lal vs. State of Haryana) wherein, the Supreme Court has held:
"1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
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Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
XXX XXX XXX XXX XXX XXX XXX
Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
XXX XXX XXX XXX XXX XXX XXX
Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
In the case on hand it is not in dispute and cannot be disputed that the complainant had borrowed a sum of Rs. 13.50 Crores from the first accused on 20.06.2006 to purchase the property bearing Plot No. ML-8D being a portion of land in Plot No. MYS 357, Sy. No. 2, in Peenya Plantation, Yeshwanthapura Hobli, Bangalore North Taluk and the entire sale consideration was paid by the bank (first accused) on behalf of the complainant to the vendor when the registered Sale Deed in respect of the aforesaid property was executed by the vendor in favour of the complainant. It is the grievance of the complainant that the first accused had taken the registered Sale Deed dated 12.07.2006 to its custody without creation of equitable; mortgage. It is obvious from the fact that memorandum in relation to creation of equitable mortgage was not brought into existence.
In my considered opinion, these allegations do not constitute any cognizable offence, much less the offence of a criminal breach of trust. The first accused had sanctioned a loan in a sum of Rs. 13.50 Crores to the complainant to purchase the aforesaid property and infact the entire sale consideration was paid by the first accused to the vendor of the complainant. In the circumstances, the first accused had taken the registered Sale Deed dated 12.07.2006 as a security for the loan extended to the complainant. Therefore it cannot be held that the first accused has committed criminal breach of trust.
From the order made in W.P. 10985/2009, it is clear that complainant had no grievance against the first accused for receiving registered sale deed dated 12.07.2006 as security for the loan extended by the first accused to the complainant. The complainant being the petitioner in W.P. 10985/2009 cannot be permitted to contend that the writ petition was filed under mistaken impression of facts and the alleged fraud committed by the first accused was subsequently discovered by the complainant.
In view of this admitted position and the order passed by the High Court of Judicature at Madras in W.P. No. 10985/2009, it is obvious that as on the date of the decision in W.P. No. 10985/2009, the relationship between the complainant and the first accused was that of a creditor and debtor. The complainant in order to ward off the consequences of notice issued under Section 13(4) of the SARFAESI Act, had approached the High Court of Judicature at Madras and had sought for time and infact he had made certain payments and had also requested to postponement of the recovery process. The High Court of Judicature at Madras had disposed of W.P. No. 10985/2009 in terms of the aforestated order. Therefore the averments of complainant that the first accused had committed criminal breach of trust by keeping the registered Sale Deed dated 12.07.2006 as security, the first accused by assigning the right to recover the debt in favour of the fifth accused, had fabricated the documents cannot be accepted. Similarly the allegations of the complainant that the first accused had taken several blank papers and blank signed cheques of the complainant and his family members cannot be accepted.
At this juncture, it is relevant to state that the complainant is a qualified doctor and he is the proprietor of M/s. Sridevi Hospital at Chennai. In view of orders made by the High Court of Judicature in W.P. No. 10985/2009, the allegations made in the complaint that the first accused committed breach of trust by taking into custody the registered sale deed dated 12.07.2006 as a security for the loan extended by the first accused to the complainant do not constitute any offences. These averments are inherently improbable and highly absurd.
It is specifically alleged in the complaint that the accused Nos. 1 to 4 and others had come to the house of the complainant at 8.00 a.m., on 08.10.2013 and they threatened the complainant that some more amount is due to be paid by the complainant and if not paid they are not going to return the documents to the complainant and also threatened him with dire consequences, cannot be accepted for the following reasons:
As on 08.10.2013 neither the first accused (IOB) nor accused Nos. 2 to 4 (officials of first accused-IOB) had subsisting interest in the debt due from the complainant, because the first accused had assigned the right to recover the debt to the fifth accused under an agreement of assignment dated 31.08.2010, which infact had been acknowledged by the complainant in W.P. No. 12639/2012 dated 18.06.2012 filed by the complainant. 15. The averments of complaint that accused Nos. 2 to 4 had visited the house of complainant on 08.10.2013 are highly absurd. Accused Nos. 2 to 4 had retired from the bank (first accused) and have furnished documents as per Annexure-''D'' ''E'' and ''F'' to show that they had retired from the bank much before 08.10.2013 and accused Nos. 2 to 4 were leading retired life at Chennai.
As already stated, after assignment of right to recover debt by the first accused (Indian Overseas Bank) the bank ceased to have any interest in the debt due from the complainant. In the circumstances, the averments of complaint that accused Nos. 2 to 4 who had retired from the bank (first accused) had gone to the house of complainant on 08.10.2013 are inherently improbable and highly absurd.
In a decision reported in Harshendra Kumar D. Vs. Rebatilata Koley Etc., the Supreme Court has held:
"25. In our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused which are in the nature of public documents or the materials winch are beyond suspicion or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482." The petitioners (accused) have relied upon public documents and orders made by the High Court of Judicature in W.P. No. 10985/2009 and W.P. No. 12639/2012. These documents are public documents, they are beyond suspicion or doubt. In the circumstances, there is no impediment for this court to look into these documents in exercise of powers under Section 482 Cr.P.C.
The complainant has contended that the accused Nos. 1 to 4 in collusion with each other had collected a sum of Rs. 3,00,000/- from the complainant as safe deposit to avoid stamp duty payable to State of Karnataka, and have not paid the same.
In my considered opinion, these allegations are inherently improbable and absurd. The complainant had no occasion to pay a sum of Rs. 3 Lakhs either to accused Nos. 1 to 4 or to accused Nos. 5 to 8. The complainant has acknowledged the fact of assignment of right to recover debt by first accused in favour of the first accused. In the circumstances, allegations of complainant that complainant has paid a sum of Rs. 3 Lakhs to fifth accused without even disclosing the necessity for making such payment, the nature of documents which were required to be registered are highly improbable and absurd.
The learned counsel for complainant has relied upon several decisions of Supreme Court to contend that merely because the transaction between the parties is of civil nature, it does not preclude initiation of criminal proceedings.
In the discussion made supra, I have held that the averments made in the complaint, in the context, relative position of parties and the nature of transaction and the outcome of the writ petition initiated by the complainant before the High Court of Judicature at Madras, are inherently improbable and even if they are accepted on their face value they do not constitute any offences against the accused.
In view of above discussion, I hold that initiation of complaint in PCR No. 434/2013 and continuation of investigation in PCR No. 434/2013 pursuant to reference under Section 156(3) Cr.P.C., is abuse of process of law. Therefore, I pass the following:
ORDER
The petitions are accepted. The complaint filed in PCR No. 434/2013 and the investigation of the same in Crime No. 420/2013 by the first respondent-police are quashed.