Allahabad High Court
Rajesh Kumar And Another vs State Of U.P. And 2 Others on 10 May, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:85327-DB
Court No. - 46
Case :- CRIMINAL MISC. WRIT PETITION No. - 2691 of 2023
Petitioner :- Rajesh Kumar And Another
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Anil Kumar Bajpai
Counsel for Respondent :- G.A.
Hon'ble Siddharth,J.
Hon'ble Surendra Singh-I,J.
1. As per the office report dated 5.4.2023 notice was issued to respondent no.3 but despite service of notice no one has appeared on his behalf to oppose this petition.
2. This Court finds that case has been listed for the 6th time and interim order has been extended on every date but till date no one has appeared on behalf of the respondent no.3.
3. Heard Sri Anil Kumar Bajpai, learned counsel for the petitioners and learned AGA for the State.
4. Learned counsel for the petitioners submits that the petitioners are the Officers of Union Bank of India, Loha Mandi Branch, Agra. They initiated recovery proceedings against the respondent no.3 for recovery of defaulted loan amount as per the provisions of SARFESAI Act. The respondent no.3 has lodged the FIR against the petitioners by way of proceedings u/s 156(3) Cr.P.C. on account of mala fide just to thwart the recovery proceedings. Hence impugned FIR may be quashed. He has relied on the Apex Court Judgment in the Case of Priyanka Srivastava &Anr. Vs. State of U.P. & Ors. (2015) 6 SCC 287 in support of his contentions.
5. Learned AGA has opposed the submissions but unable to dispute the legal position clarified by the Apex Court in the case of Priyanka Srivastava (supra).
6. After hearing the rival contentions, this Court finds that the facts of this are similar to the case cited at the bar. Paragraph nos. 27 to 34 of the aforesaid judgment may be usefully referred to as follows.
"27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the Bank. We are absolutely conscious that the position does not matter, for nobody is above the law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under theSarfaesi Act, invokes the jurisdiction under Section 156(3) CrPC and also there is a separate procedure under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to.
28.Issuing a direction stating "as per the application" to lodge an FIR creates a very unhealthy situation in society and also reflects the erroneous approach of the learned Magistrate. It also encourages unscrupulous and unprincipled litigants, like Respondent 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, Respondent 3 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 Appellant 1, who is presently occupying the position of Vice-President, neither was the loan taken, nor was the default made, nor was any action under theSarfaesiAct taken. However, the action under theSarfaesiAct was taken on the second time at the instance of the present Appellant 1. We are only stating about the devilish design of Respondent 3 to harass the appellants with the sole intent to avoid 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) CrPC 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 compliance with Section 154(3), indicating it has been sent to the Superintendent of Police concerned.
29.At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the Code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same.
30.In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.
31.We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated inLalita Kumari[(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR
32.The present lis can be perceived from another angle. We are slightly surprised that the financial institution has been compelled to settle the dispute and we are also disposed to think that it has so happened because the complaint cases were filed. Such a situation should not happen.
33.At this juncture, we may fruitfully refer to Section 32 of theSarfaesiAct, which reads as follows:
"32.Protection of action taken in good faith.?No suit, prosecution or other legal proceedings shall lie against any secured creditor or any of his officers or manager exercising any of the rights of the secured creditor or borrower for anything done or omitted to be done in good faith under this Act."
In the present case, we are obligated to say that the learned Magistrate should have kept himself alive to the aforesaid provision before venturing into directing registration of the FIR under Section 156(3) CrPC. It is because Parliament in its wisdom has made such a provision to protect the secured creditors or any of its officers, and needless to emphasise, the legislative mandate has to be kept in mind.
34.In view of the aforesaid analysis, we allow the appeal, set aside the order passed by the High Court and quash the registration of the FIR in case Crime No. 298 of 2011, registered with Police Station Bhelupur, District Varanasi, U.P."
7. Clearly the respondent no.3 has abused the process of law by making application under 156 (3) Cr.P.C. against petitioners who are responsible bank officers, and had worked in due discharge of their official duties. The complaint against them was mala fide too and the Magistrate erred in directing the registration of FIR against petitioners.
8. In view of the above facts and circumstances of the case, the FIR dated 19.1.2023 lodged in Case Crime No. 0015 of 2023 under Sections 420, 467, 468, 471 and 120-B IPC, Police Station- Loha, Mandi, District Agra is hereby quashed against the petitioners.
9 The writ petition is allowed.
Order Date :- 10.5.2024
Akbar
(Surendra Singh-I,J.) (Siddharth,J.)
