Bombay High Court
Ltd. vs The State Of Maharashtra on 27 September, 2012
Bench: A.M. Khanwilkar, A. R. Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2414 OF 2005
Indur Kartar Chhugani,
Age : 58 years, Occ.Business,
R/o. : 501-502, Pinky Panorama CHS
Ltd., 6th Road, Khar (W), Mumbai - 400 052. ..Petitioner
[Orig.Accused]
Versus
1. The State of Maharashtra,
at the instance of Addl. Chief Secretary,
Home Department, Government of
Maharashtra, Mantralaya, Mumbai.
2. The Senior Inspector of Police,
Khar Police Station, Mumbai.
3. Arun Walzade,
Age : Adult, Occ. Service,
Asst. Police Inspector
Khar Police Station, Mumbai.
4. Mehboob A. Inamdar,
Age : Adult, Occ.Service,
P.S.I. (EOW), Mumbai.
5. The Punjab National Bank Ltd.,
through Shri Surinder Singh Kohli,
The Managing Director, 7,
Bhikaji Cama Place,
New Delhi 110 066.
6. Shri Alok Kulshreshtha,
Age : Adult, Occ.Service,
The Chief Manager, Punjab National Bank,
ARMB Branch, 265, Birya House,
Bazar Gate, Fort, Mumbai - 400 001.
7. R.I.S. Sidhu,
Age : Adult, Occ. Service,
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The General Manager (Zonal Office),
Punjab National Bank, 11th Floor,
Dalamal House, Nariman Pt.,
Mumbai - 400 021.
8. Anil Bhan,
Age : Adult, Occ.Service,
The Chief Manager (Zonal Office),
Punjab National Bank,
11th Floor, Dalamal House,
Nariman Pt., Mumbai - 400 021.
9. R. Srinivasan,
Age : Adult, Occ.Service,
The Senior Manager,
Punjab National Bank, ARMB Branch,
265, Birya House, Bazar Gate,
Fort, Mumbai - 400 001.
10. Bharat Overseas Bank Ltd.,
through G. Krishna Murthy,
The Chairman, Habeeb Towers,
196, Anna Salai, Chennai - 600 002.
11. Shree Mihir Datta,
Age : Adult, Occ.Service,
The Chief Manager,
Bharat Overseas Bank Ltd.,
Bharat Chambers, 22/26,
K. Dubhash Marg, Rampart Row,
Fort, Mumbai - 400 023.
12. S. Parthasarathy,
Age : Adult, Occ.Service,
The Senior Asst. General Manager,
Bharat Overseas Bank Ltd.,
Habeeb Towers, 196, Anna Salai,
Chennai - 600 002.
13. R.K. Gupta,
Age : Adult, Occ.Service,
The Sr. Asst. General Manager (Mumbai),
Bharat Overseas Bank Ltd.,
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Habeeb Towers, 196, Anna Salai,
Chennai - 600 002.
14. Devinder Singh,
Age : Adult, Occ.Service,
Bharat Overseas Bank Ltd.,
Bharat Chambers, 22/26,
K. Dubhash Marg, Rampart Row,
Fort, Mumbai - 400 023.
15. Rakesh Arora,
Age : Adult, Occ.Service,
Bharat Overseas Bank Ltd.,
Bharat Chambers, 22/26,
K. Dubhash Marg, Rampart Row,
Fort, Mumbai - 400 023.
16. Sandeep P.J.,
Age : Adult, Occ.Service,
Bharat Overseas Bank Ltd.,
Bharat Chambers, 22/26,
K. Dubhash Marg, Rampart Row,
Fort, Mumbai - 400 023.
17. Prashant Salunke,
Age : Adult, Occ.Service,
Punjab National Bank,
ARMB Branch, 265,
Birya House, Bazar Gate,
Fort, Mumbai - 400 001
18. Chandrakant K.
Age : Adult, Occ. Service,
Punjab National Bank, ARMB Branch,
265, Birya House, Bazar Gate,
Fort, Mumbai - 400 001
19. The Commissioner of Police,
Mumbai. ..RESPONDENTS.
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WITH
CRIMINAL APPEAL NO.688 OF 2006
Punjab National Bank,
A Bank constituted under the Banking
Companies (Acquisition and Transfer of
Undertakings) Act, 1970, having its Head
Office at 7, Bhikaji Cama Place, New
Delhi - 110066 and having an Asset
Recovery Branch, Represented through
its Officer Mr. Gopichand Rane at Asset
Recovery Management Branch, 265,
Birya House, Bazar Gate, Fort, Mumbai - 1 ..APPELLANT
V/s.
1. Indur K. Chhugani,
501 & 502, Pinky Panorama
Co-operative Housing Society Limited,
5th Floor, 6th Road, Khar (West), Mumbai -
400 052.
2. Bharat Overseas Bank Ltd.,
Having its Branch at Bharat Chambers,
22/26, K. Dubash Marg, Rampart Row,
Fort, Mumbai - 400 023.
3. State of Maharashtra. ..RESPONDENTS
....
Mr. Indur Kartar Chhugani, in person as petitioner in Cri.WP
No.2414/2005 & as respondent No.1 in Cri.Appeal No.688/2006
Mrs. Revati Mohite - Dere, Public Prosecutor a/w. Ms. P.P. Shinde, APP,
for Respondent Nos.1 to 4 & 19.
Mr. P.P. Tipnis i/b. Consulta Juris, for Respondent No.2 in Cri.Appeal
No.688/2006 & for Respondent Nos.10 to 14 in Cri. WP No.2414/2005.
Mr. Pankaj Vijayan, for Respondent Nos.5 to 9 and 17 & 18.
....
CORAM : A.M. KHANWILKAR, &
A.R. JOSHI, JJ.
JUDGMENT RESERVED ON: 20TH JULY, 2012
JUDGMENT PRONOUCNED ON: 27th SEPTEMBER, 2012
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JUDGMENT : (Per A.R. Joshi,J.)
1. By this common judgment and order the abovenumbered
proceedings are disposed of together as it involves common and
overlapping questions.
2. Rival arguments were heard on earlier dates. Perused the
order dated 30.1.2006 which is impugned in Criminal Appeal No.688 of
2006. Said order was passed by the then learned Judge of Special
MPID Court & Additional Sessions Judge, Greater Bombay. Said order
was passed below show-cause notice issued to one Indur K. Chhugani
in C.R. No.47 of 2004 registered by EOW, through CB, CID, Mumbai
against said Indur K. Chhugani, his wife and his son.
3. At the threshold, it must be mentioned that there is specific
order of this Court dated 9/9/2009 of another Division Bench by which
certain directions were given for not taking up the criminal writ petition
for final hearing at the instance of the petitioner unless he vacates the
Flat Nos.501 and 502. The said order dated 9/9/2009 was passed by
the Division Bench (Shri B.H. Marlapalle and Smt. Roshan Dalvi, JJ.).
The said order dated 9/9/2009 is reproduced hereunder for the sake of
clarity :
"1. This petition shall not be taken up for further hearing
at any time in future, at the instance of the petitioner
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unless he vacates both the flats, i.e. Flat No.501 and
502, which he and his family is in possession for the last
about 4 years, despite the order passed by this Court on
12th December, 2005 and the recent orders passed by
the Debt Recovery Tribunal.
2. Admittedly our order dated 12th December, 2005 has
received its finality and the petitioner is bound by the
observations made therein about his alleged title over
the said property, i.e. the suit flats."
4. The above order dated 9/9/2009 was challenged by the
petitioner before the Supreme Court in Special Leave Petition No.
9120/2009. However, the said special leave petition was dismissed by
the Hon'ble Apex Court with the following order :
"We do not find any ground to interfere. The special leave
petition is dismissed."
5. Considering the import of the order dated 9/9/2009 and the
factual and legal position on the aspect vis a vis possession of Flat Nos.
501 and 502 with the petitioner and his family members, we thought it
fit in the interest of justice to proceed with the matter on its own merits.
For, it was necessary to break the deadlock or impasse which was
enuring to the benefit of the petitioner - though the abovesaid order was
intended to non-suit the petitioner from challenging the impugned FIR
until he vacates the said flats which he was occupying unauthorisedly.
In other words, the petitioner was taking advantage of his own wrong by
not vacating the suit flats and because of pendency of the present Writ
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Petition, even the criminal action against the petitioner is kept in
abeyance. This cannot be countenanced.
6. Prior to appreciating the rival arguments, certain factual
position and circumstances leading to filing of the present Writ Petition
and Criminal Appeal are required to be mentioned.
One M/s. Soundcraft Industries Ltd. was granted financial
assistance to the extent of Rs.1000/- lakhs.
ig It was an assistance
granted by the Punjab National Bank (appellant in Criminal Appeal
No.688/2006). M/s. Seema Investment Pvt. Ltd., owned Flat No.502,
5th Floor, Pinky Panorama CHS Ltd., 6th Road, Khar (West), Mumbai and
said M/s. Seema Investment Pvt. Ltd. stood as guarantor to the loan
account of M/s. Soundcraft Industries Ltd.. M/s. Soundcraft Industries
Ltd. was being operated and controlled by one Rajkumar Basantani
along with his other associates. Said M/s. Soundcraft Industries Ltd.
also obtained loan / financial assistance from another bank i.e. Bharat
Overseas Bank. In order to secure the financial assistance given by said
bank again M/s. Seema Investment Pvt. Ltd. stood as co-lateral
security by creating equitable mortgage with respect of another flat
No.501 again situated on the 5th Floor, Pinky Panorama CHS Ltd., 6 th
Road, Khar (West), Mumbai. In fact, both the said flats No. 501 & 502
are having one entrance and both the flats are joined from inside and
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being treated as one residential unit. Presently, said flats are in actual
physical possession of the writ petitioner Indur K. Chhugani, his wife
and his son.
7. Without going into much details as to the transactions inter
se amongst said two banks and Rajkumar Basantani, suffice it to say
that the borrower Rajkumar Basantani of M/s. Soundcraft Industries
Ltd.. failed to repay the loan to the banks. Consequently, proceedings
under the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (SARFAESI Act, for short)
were initiated. Under the said proceedings, noticing failure to repay the
loan, the properties which were mortgaged with the banks were directed
to be seized, and as such on or about 23rd June, 2004 symbolic
possession of the flats was taken. Apparently under the directions of
the Chief Judicial Magistrate, Mumbai the Registrar of the said Court
took possession of the said flats under panchnama and handed over
possession of the said flats to respective banks i.e. Bharat Overseas
Bank Ltd., and Punjab National Bank (appellant in Criminal Appeal
No.688/2006).
8. There were parallel proceedings initiated against Rajkumar
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Basantani under the Maharashtra Protection of Interest of Depositors
(In Financial Establishments) Act, 1999 ( MPID Act, for short). In the
said parallel proceedings ,as per the provisions of the MPID Act, the
Designated Special Court under the said Act passed an order of
attachment of the same flats No. 501 & 502. Said order was passed on
19.1.2005. As such, the investigating officer of the Economic Offences
Wing attached the said flats under panchnama on 8 th February, 2005.
On 12th February, 2005 the concerned Banks at whose instance the said
flats were earlier attached by the order of the Chief Metropolitan
Magistrate under SARFAESI Act, were served with copy of the
attachment order passed by the MPID Court.
Subsequently, on or about 24th February, 2005 Indur
9.
Chhugani (respondent No.1 in Criminal Appeal No.688/2006 and writ
petitioner in Criminal Writ Petition No.2414/2005), approached both the
banks under the premise that the banks have formed a consortium for
auction-sale of both the flats No.501 & 502, which are being used as
one tenement. According to Indur Chhugani, he had given his bid and
tendered the amount of alleged agreed price for both the flats and in fact
passed on demand drafts for the total value of Rs.50.91 lakhs.
However, according to the banks there was no concluded contract
between the parties and auction had not materialized as the amount
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offered by Indur Chhugani was much below the fixed or reserved price
and as such on or about 25.2.2005 the proposal of Indur Chhugani was
rejected and the demand draft without encashing was returned back to
Indur Chhugani. This fact is discerned from the contents of the writ
petition and criminal appeal, which are under consideration.
10. Thereafter, on or about 21st March2005 the investigating
officer of EOW informed the MPID Court that he found Indur Chhugani,
his wife and son occupying the said flats Nos.501 & 502. On such
revelation, directions were given by the MPID Special Court for
inspection and accordingly again on or about 22nd March, 2005 it was
found out that Indur Chhugani was residing in the said flat Nos.501 &
502 without there being any valid documents of transfer of title /
ownership with respect to said flats in his favour. In fact, without there
being any authentic document indicating lawful possession of the said
flats, Indur Chhugani and his family members were found residing in the
said flats. This factual position led the MPID Court to make detailed
notings from March, 2005 to July, 2005, and in between directions were
given to the Bank officials as well as the Investigating Officer of EOW to
lodge criminal complaint against Indur Chhugani and his family
members for their per se wrongful and illegal possession over flat
Nos.501 & 502. In fact, various steps were taken by Indur Chhugani to
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continue with his occupation over flat Nos.501 & 502 and he preferred
various Misc. Applications / Writ Petitions before this Court, but, without
any success. Even Civil Suit was filed by Indur Chhugani somewhere in
October, 2005 for specific performance of taking a sale certificate in his
favour from the concerned Banks with respect to flat Nos.501 & 502,
but, again without any success. Said Civil Suit was rejected by the City
Civil Court, Bombay mainly on the ground of non-maintainability on
account of non-payment of proper court fees.
11. On 24.3.2005, the Investigating Officer of EOW attended the
Khar police station and registered a criminal complaint against Indur
Chhugani, his wife and his son, being C.R. No.103 of 2005 for the
offences punishable under Sections 448, 454 r/w. 34 of Indian Penal
Code. Said FIR was lodged as per the directions of the Special MPID
Court. In the meantime, in the main complaint under the MPID Act
against Rajkumar Basantani, it transpired that he left India and went to
USA along with his family members and as such was not available for
the trial before the MPID Court. As such, requisite processes were
issued against him - including non-bailable arrest warrant and
proclamation. Said Rajkumar Basantani was declared as proclaimed
offender and was put on look-out in the record of Special Branch No.2.
Red-corner notice, through Interpol, was also issued against him. His
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bank accounts with different banks and also demat accounts so also
immovable property including flat Nos.501 & 502 were attached and
seized. After completion of investigation, while declaring Rajkumar
Basantani as proclaimed offender, charge-sheet was filed against the
co-accused by names Haresh & Vinod Hingorani etc.
12. Against the registration of FIR for the offences punishable
under Sections 448 & 454 read with Section 34 of Indian Penal Code,
Indur Chhugani filed Writ Petition No.2414/2005 which is under
consideration. By the said Writ Petition, he has asked for various
reliefs. In order to have clarity of the reliefs sought, said prayers are
reproduced hereunder :
"(A) The Rule may be issued;
(B) The Respondent Nos.1 & 2 may kindly be directed to
drop the prosecution against the Petitioner in respect of
I C.R. No. 103/05 registered with the Khar Police
Station, Mumbai, U/s. 448, 454 r/w. 34 of the I.P.C.;
(C) This Honourable Court may on its own or through the
Respondent No.19, depute an independent and
superior police officer to investigate this entire case
and report back to the Honourable Court in a time
bound schedule, and necessary actions been taken
thereupon;
(D) The Respondent Nos.1, 19 & 2 may kindly be directed
to initiate actions against the erring police
officers Respondent Nos.3 & 4 together with the
officers of the Respondent Nos.5 & 10 Banks,
including Respondent Nos.6 to 9, 11 & 13 for
their criminal conspiracy with the absconding Accused
Rajkumar Basantani, committing misappropriation,
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criminal breach of trust and therebycausing loss to the
public money etc., committing perjuries before the
Hon. MPID Court, lodging false F.I.R. against the
Petitioner and his family members and thereby
wrongfully arresting him & various offences as
enumerated above;
(E) The Respondent Nos.1, 19 & 2 may kindly be directed
to take action against the Respondent No. 3 A.P.I. Arun
Walzade for having extorted sum of Rs.50,000/- from
the family of the Petitioner, while he was in the Police
Custody by using illegal means. So also for behaving
indecently with the wife of petitioner and trying to
outrage her modesty;
(F) The Respondent No. 1 Government of Maharashtra
may kindly be directed to award a monetary
compensation of Rs.10,00,000/- (Rupees Ten
Lakhs Only) to the Petitioner & his family in respect
of physical and mental trauma suffered by him and
his family members pursuant to his wrongful
arrest in the said matter, handcuffing and other
inhuman treatment, extortion and misbehaving with his
wife;
(G) Pending the hearing and final disposal of the present
Petition, the proceedings of the I C.R. No.103/05
registered with the Khar Police Station, against the
Petitioner and his family members may kindly be
stayed;
(H) Any other just and equitable order may kindly be
passed in favour of the Petitioner."
13. It is apparent that the prayers, as mentioned above asked by
Indur Chhugani, are solely based on the premise that the order dated
30.1.2006 is legal and valid and the effect of the said order was to
discharge the show cause notice issued against Indur Chhugani dated
22.3.2005. In that view of the matter, no criminal proceedings (being
C.R. No.103 of 2005) could be initiated against him, much less for an
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offence under Sections 448 & 454 read with Section 34 of Indian Penal
Code. In other words, according to Indur Chhugani (petitioner in the
writ petition), said criminal proceeding was null and void and there could
not have been any action as contemplated in the said C.R. when the
show cause notice issued against him in MPID case C.R. No.47/2004 is
rendered void and accordingly discharged. In view of this stand taken
by Indur Chhugani, it is expedient to deal with the question of validity or
otherwise of the order dated 30.1.2006 passed by the then Special
Judge under MPID Act & Additional Sessions Judge, Greater Bombay.
Notably, the said order discharging the show cause notice has been
challenged by the Punjab National Bank in Criminal Appeal No.688 of
2006 which is under consideration in the present order.
14. In view of the above, the first question is whether the Criminal
Appeal No.688/2006 must be allowed or not in the light of the factual
position of existence of certain orders of this Court and also on the
aspect of the legal provisions of the MPID Act.
15. The final order passed on 30.1.2006 which is impugned in
the present Criminal Appeal, reads thus :-
"show-cause notice dated 22.3.2005 issued against the
Noticee Mr. I. K. Chhugani is hereby discharged."
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16. The circumstances under which the order dated 22.3.2005
issuing show cause notice against Indur Chhugani was passed, are
required to be mentioned in order to have clear perspective of the
matter in which the action under the MPID Act was sought against
Rajkumar Basantani concerning flats No.501 & 502. It is a factual
position that though earlier both the said flats were secured on or about
12th October, 2004 under the SARFAESI Act after completing all the
legal formalities under Section 14(1)(p) of the said Act, still in C.R.
No.47 of 2004 filed by the Economic Offences Wing, attachment of the
said flats was sought under Section 8 of the MPID Act. The said
application for attachment of the flats belonging to Rajkumar Basantani
was made for protecting the interest of depositors in the said C.R. No.47
of 2004. Under these circumstances, an order of attachment dated
19.1.2005 came to be passed by the then Special MPID Court, Mumbai.
Said order dated 19.1.2005 discusses the necessity for invoking the
powers under Section 8 of the MPID Act and to effect attachment of the
flats in order to secure the interest of the depositors, more so, when it
was factual position that Rajkumar Basantani (accused therein) was
declared as proclaimed offender and had already left India and red-
corner notice was already issued against him as detailed earlier. The
final order passed by the then MPID Court on 19.1.2005 reads thus :
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" -: ORDER:-
1. Sr.PI, G.B.C.B., CID, E.O.W. Is directed to attach all
movable and immovable properties including secured and
unsecured properties, as mentioned in the Schedule "A"
annexed to the M.A. No.24/2005. As an attachment of
properties by the order of this court passed U/s. 8 of MP.I.D.
Act, 1999, to secure the interest of investors/depositors.
2. On the properties attached, a notice be displayed by
mentioning that properties have been attached by the order
of this court in exercise of powers u/s. 8 of M.P.I.D. Act,
1999 and if any person having any objection to attachment
and having any claim, interest in the properties, he can
approach to this court and file his objection on 14/2/2005
and order of attachment shall be subject to decision of such
objections.
3. The notice of attachment of the properties be given to
all concerned persons, calling upon them to appear in court
on 14th February, 2005 and to file their written objection to
attachment on and before 14th February, 2005.
4. The intimation of order of attachment be given to
Registrar of Registration, in whose jurisdiction the property
is situated, Municipal Corporation and Society, with
directions not to record transfer in respect of said property
till further orders from this court.
5. The attested copy of operative part of order, be made
available to I.O..
Investigating Officer is directed to take necessary steps
forthwith to implement the order."
17. After passing of the above mentioned attachment order, the
events those took place are earlier detailed in the preliminary facts given
in this order regarding Indur Chhugani and his family members found in
actual physical possession of the said flats No.501 & 502 by the
Investigating Officer when he made inspection of the flats under the
directions of the Court when this fact of Indur Chhugani and his family
members found in possession of the flats was brought to the notice of
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the then MPID court, detailed Roznama was passed on 22.3.2005. For
the sake of clarity of the facts, the said roznama is reproduced
hereunder :
" Roznama dated 22.3.2005
"M.A. 116/05, M.A. 146/05, C.R. No.47/04
Mr.R.D. Sawant A.P.P. for State present.
Mr. Narayan Shenoy advocate for Punjab National Bank in
M.A. No.116/05 present.
Mrs. Srivastav advocate Bharat Overseas Bank in M.A.
No.146/05 present.
Mr. Datta, officer of Bharat Overseas Bank present.
Mr. Shrinivasan officer from Punjab National Bank present.
P.S.I. Inamdar, I.O. absent.
At the request of A.P.P. K.B. for submitting report by I.O. in
compliance of Court direction.
I.O.
I.O. Inamdar present.
Other appearances as before.
P.S.I. Inamdar has produced on record a report alongwith
copy of panchnama drawn.
Perusal of the report clearly shows that in spite of flat
being under the order of attachment of this Court and the
premises being sealed by I.O. on 8.2.2005, the seal was
broken/removed and Mr. Chhugani and his family members
have entered into the premises and occupying the flat. As per
the statement made by the bank officials as well as Advocate
representing the banks the possession of said flat was taken
on 12/10/04 through Registrar CMM Court and they had put up
their locks and put up the seal over the same and one key
each was lying with Official of Punjab National Bank and
Official of Bharat Overseas Bank. It is further say of the bank
officer present in Court that they have never sold nor Mr.
Chhugani or any other person was put in possession of said
flat. It is the say of officer of bank that Mr. Chhugani has
illegally entered into the premises by removing the lock and
key is put by bank officials which was put while taking
possession on 12/10/04.
Upon considering these facts it is necessary that I.O. as
well as bank officials should lodge the complaint to concern
Police Station and concern police to take legal action against
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the person concern.
Applicant in M.A. No.116/04 and 146/04 are directed to
file detail affidavit stating the factual position and clarify as to
whether any bank official had made any detailing in respect of
said flat and put Mr. Chhugani and his family members in
possession of said flat. Mr. Datta and Mr. Shrinivasan the
officials of both the banks are directed to report the matter to
their Chairman cum Managing Director on fax and copy of the
report send be produced in Court on 23.3.05 and they are
further directed to take necessary steps in the matter.
P.S.I. Inamdar is directed to lodge the complaint breaking
open of sealed premises and illegal entry of Mr. Chhugani and
his family in the property lying in sealed condition and attached
as per order of Court.
Senior P.I. Police Station Khar is directed that if complaint
is lodged by I.O. or bank officers, then necessary action be
taken immediately in respect of the incident of breaking open
the lock and seal of premises and act of criminal trespass.
Adjd. For filing affidavit by Applicant No.1 and report by
I.O. of action taken by him.
Issue notice to Mr. Indur Chhugani directing him to appear
before the Court on 24.3.05 and to explain as to why
appropriate proceedings be not initiated against him for
removing the seal of property attached by the order of Court
and making illegal entry into the property lying attached by the
order of the Court.
I.O. is directed to serve the notice to Indur K. Chhugani.
Adjd. to 24.3.05."
18. After the above observations of the then MPID Court, the
matter was again taken on 24.3.2005 and directions were given to PSI
Inamdar to lodge complaint immediately in respect of the incident of
Indur Chhugani and his family members found in possession of flats
No.501 & 502 which were attached under Section 8 of the MPID Act and
when prima facie there was nothing brought before the Court so as to
consider the possession of Indur Chhugani and his family members
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being legal.
19. We have observed that the matter was then taken before the
another Judge holding the charge of the MPID Court and the impugned
order dated 30.1.2006 was passed by which show cause notice issued
against Indur Chhugani was discharged. Considering the provisions of
Section 8 of the MPID Act and considering the material brought before
the MPID Court during January & March, 2005, it cannot be said that
there was any error committed by the earlier MPID Court in issuing a
show-cause notice against Indur Chhugani. In other words, we must
say that another MPID Court while passing the impugned order dated
30th January, 2006 erred in accepting the plea of Indur Chhugani that
issuance of show-cause notice against him presupposes that there was
no attachment of flats No.501 & 502. It must be said that another MPID
Court while passing the order dated 30.1.2006 over-looked the effect of
order passed by this Court on 12.12.2005 (Coram: D.G. Deshpande &
V.M. Kanade,JJ.). The said order dated 12.12.2005 was passed in the
present Criminal Writ Petition No.2414/2005 when application
No.7912/2005 was preferred by petitioner - Indur Chhugani for
protecting the possession of the petitioner in respect of flats No.501 &
502. In the order of this Court on the said Criminal application
No.7912/2005, it is amply clear that two flats were attached by MPID
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Court on 19.1.2005 and subsequently the petitioner was found in
possession of said two flats and on that premise, show-cause notice
was issued against him.
20. During hearing of the said application of Indur Chhugani
praying for protection of the possession, an attempt has been made by
him to produce certain documents as to payment of amount by D.D. to
the concerned bank and certain correspondence entered by him with
the banks. It must be said that the said documents regarding
correspondence with the banks, produced and relied by Indur Chhugani
was not accepted as reliable evidence and it was the observation of this
Court that those documents were self-created evidence and they were
all one-sided and depict what the petitioner did. It was further observed
by this Court that there was no legal transaction by which said flats were
validly transferred to the petitioner Indur Chhugani by the concerned
banks in any manner much less conveying the title. Finally, this Court
has observed that there was no case of giving protection to the
petitioner Indur Chhugani with respect to his possession over the said
flats and hence said Application No.7912 of 2005 was rejected and even
the prayer for stay of the said order was rejected. It is significant to note
that the order of this Court on said application is dated 12.12.2005 and
in spite of passing of such order, subsequently the order dated
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30.1.2006 was passed by another MPID Court, which is an order
impugned in the present Criminal Appeal No.688 of 2006 under
consideration.
21. At the cost of repetition, we must mention that very
categorical observations were made by another Division Bench of the
High Court while passing order dated 12/12/2005 (D.G. Deshpande and
V.M. Kanade, JJ.). Certain observations including narration of the case
of the petitioner from the said order dated 12/12/2005 are reproduced
hereunder :
"It is the case of the petitioner that respondent nos.5 and
10 invited bids for selling these two flats. He took part and
offered his bid and it is his further case that his bid was
accepted by both these respondents. He made payment
to them and then he was placed in possession by these
two respondents. These facts are denied by the
Advocates for both these respondents........"
"We must clearly say that not a single letter is there in
possession of the petitioner showing that his bid was
accepted by any of the respondents referred to above;
that they intended to sell the property to him; that they had
accepted the Demand Draft towards purchase money and
there are no other writing or letter from any of these two
banks placing or handing over the possession of these
two flats to the petitioner. All these four documents are
self created evidence. They are all one sided. They
depict what the petitioner did. But no transaction is
complete without the concurrence and consent of other
side........"
"It is prima facie clear that the seal of the flats was broken
by this petitioner and he forced his entry in the same. No
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protection can be given to him. Therefore, his application
is rejected."
22. In view of the above order of this Court rejecting Criminal
Application No.7912 of 2005, the MPID Court could not have
reappraised the situation in different perspective and to come to the
conclusion that there was no attachment under Section 8 of the MPID
Act concerning flat Nos.501 & 502. It must be said that the concerned
MPID Court while passing the impugned order dated 30.1.2006 has
fallen in error in reappraising the facts and coming to the conclusion
other than non-availability of any material against Indur Chhugani.
23. The fallacious observations of the then MPID Court are
reproduced hereunder which are at paragraph No.23 of the said order
dated 30.1.2006 :
"23. In the light of the above discussion, there is no
convincing material available on record against the noticee
Chhugani regarding the alleged removing of seal of property
attached by the order of the Court and making illegal entry
into the property attached by the Court and especially in the
light of registration of F.I.R. into the matter which is pending
investigation. The said show-cause dated 22.3.2005 is
hereby discharged."
24. At the cost of repetition, the factual position is to the effect
that prior to the impugned order dated 30.1.2006 discharging the show-
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cause notice, there was order of this Court in Criminal Application
No.7912/2005 dated 12.12.2005 as mentioned earlier. Moreover, said
order of this Court has not been challenged by the petitioner - Indur
Chhugani and the same has attained finality. This factual aspect cannot
be over-looked by us while deciding the present matters.
25. It also cannot be over-looked that the directions for initiating
criminal proceedings against Indur Chhugani and his family members,
were given by the MPID Court vide order dated 22nd March, 2005 and
such directions were given on the factual position of Indur Chhugani and
his family members found in actual physical possession of the flats
No.501 & 502 without there being any valid documents for such
possession, more so when the said flats were already attached under
Section 8 of the MPID Act vide order dated 19.7.2005. As such, the
argument on behalf of the petitioner Indur Chhugani that the criminal
complaint was malafide, cannot be sustained. The petitioner cannot rely
on the order dated 30.1.2006 which is impugned in the criminal appeal,
as in our considered opinion, the said order cannot be sustained and the
same is accordingly required to be set aside allowing the present
criminal appeal preferred by Punjab National Bank.
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26. Now, coming to the specific prayers in Criminal Writ Petition
No.2414 of 2005 asked by the petitioner Indur Chhugani, it must be
reiterated that the order of attachment of flats No.501 & 502 dated
19.1.2005 is legal and valid and the same has not been set aside by any
Court and in fact said order has not been challenged and as such there
is nothing to doubt the prosecution lodged against the petitioner Indur
Chhugani vide C.R. No.103 of 2005 registered with Khar police station
for the offences punishable under Section 448 & 454 read with Section
34 of Indian Penal Code.
27. During the arguments, much emphasis was placed by Indur
Chhugani in his written and oral submissions that there cannot be a
charge for offences punishable under Sections 448 & 454 read with
Section 34 of Indian Penal Code against him and his family members
with respect to his possession over flats No.501 & 502. On this aspect,
considering the offences mentioned in the relevant sections and
considering that the matter is still at the investigation stage and after
thorough investigation the final charge-sheet is yet to be filed and
considering that finally it would be for the trial Court to frame the
charges against the accused person by applying appropriate penal
provisions, it would be inappropriate to allow the prayer of the petitioner
of quashing the said criminal proceedings for specific charges under
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Section 448 and 454 read with Section 34 of Indian Penal Code. In
other words, whether or not a particular section is applicable against the
accused is the job of the competent Court before which the charge-
sheet would be filed after investing agency places entire available
material before the Court. In the present matter, after completion of the
investigation, we have no doubt, that the trial Court would consider the
said material and frame appropriate charges against Indur Chhugani
and his family members.ig
28. So far as the allegations against the Police Officer Walzade
and others regarding handcuffing of the petitioner Indur Kartar Chhugani
while he was being taken to the Court after remand after his arrest in
C.R. No. 103/2005 are concerned, we have gone through the rival
submissions and also the relevant record as to remand report and order
of the Court on such remand application. Nowhere it is found that the
petitioner had made any grievance before the concerned Court that he
was handcuffed while bringing to the Court from the Police Station.
Absence of any such contemporaneous complaint presupposes that
there was no such manhandling and handcuffing of the petitioner.
Moreover, it is a question of fact finding and such plea cannot be
entertained at this belated stage.
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29. There is also another argument advanced by the petitioner
regarding alleged indecent behaviour with his wife at the hands of Police
Officer Walzade (respondent no.3 in the criminal writ petition). It is
alleged that the said respondent tried to outrage the modesty of the wife
of the petitioner and at times asked her to come alone to the Police
Station for recording her statement. Again on this aspect also, we have
gone through the material produced before us including the relevant
station diary entries. Apparently from the record, there is nothing to
support the allegation that the respondent No.3 wanted the wife of the
petitioner to remain present alone and meet her in seclusion, except the
bare words of the petitioner and his wife. No such contemporaneous
complaint was made to any Authority or even to the concerned Court,
which was dealing with the remand application in C.R. No.103/2005.
Such allegations are intended to deviate the real case against the
petitioner. It is bordering on after thought grievance made out of ulterior
purpose and cannot be accepted.
30. Now coming to the question of recovering the possession of
the property in Flat Nos.501 and 502 from the petitioner certain
argument of State are to be detailed. During arguments, the learned
APP placed reliance on the judgment of the Hon'ble Apex Court in Teeka
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and others vs. The State of Uttar Pradesh (AIR 1961 SC 803, para 13
thereof). By pointing out the ratio propounded in the above authority, it
is submitted that where a property has been legally attached by a Court,
the possession of the same passes from the owner to the Court or its
agent. In that situation, the owner of the said property cannot take the
law into his own hands, but can file a claim petition to enforce his rights.
If he resorts to force to get back his property, he acts unlawfully and by
taking the property from the legal possession of the Court or its agent,
he is causing wrongful loss to the Court. As long as the attachment is
subsisting, he is not entitled to the possession of the property, and by
taking that property by unlawful means, he is causing wrongful gain to
himself.
31. The petitioner in person contended that there was no
attachment of Flat Nos. 501 and 502 under Section 8 of the
Maharashtra Protection of Interest of Depositors (In Financial
Establishments) Act, 1999 and as such, all further steps and
consequential proceedings would not be legal and valid and as such, no
action shall lie against the petitioner and his family members only on the
basis of his possession over the said flats. In support of this submission,
reliance is placed on the judgment of the Hon'ble Apex Court in State of
Punjab vs. Davinder Pal Singh Bhullar and others (2011 STPL (Web)
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1035 SC). The petitioner heavily relies on para 72 of this decision. The
same reads thus:
"72. It is a settled legal proposition that if initial action is
not in consonance with law, all subsequent and
consequential proceedings would fall through for the
reason that illegality strikes at the root of the order."
32. However, considering the overall fact situation of the matter at
hand, in our considered view, as we have already mentioned, there was
a valid and legal attachment of Flat Nos. 501 and 502 under the order of
the Special M.P.I.D. Court and in fact, the possession of the petitioner
over the said flats is and was always illegal right from the inception. This
has been found by this Court and that finding has attained finality. Thus,
at the cost of repetition, it must be mentioned that there is no substance
in the arguments of the petitioner.
ORDER:
33. Under the above circumstances, we hold that the criminal
appeal filed by the Punjab National Bank must succeed and we hereby
quash and set aside the order dated 30/1/2006 in C.R. No.47 of 2004
passed by the M.P.I.D. Court discharging Indur Chhugani (respondent
No.1 in criminal appeal). We also direct the respondent no.1 to forthwith
vacate the said Flat Nos. 501 and 502 and surrender possession thereof
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to the Authority of M.P.I.D. Court and the said M.P.I.D. Court shall deal
with the pending proceedings in accordance with law.
34. The Criminal Writ Petition preferred by Indur Kartar Chhugani
is dismissed. Rule is discharged.
35. Both matters disposed of on the above terms.
(A. R. JOSHI, J.) (A.M. KHANWILKAR, J.)
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