Srikant M Abuj & Ors vs Soharab Sekh
2022 Latest Caselaw 6154 Cal

                  IN THE HIGH COURT AT CALCUTTA
                CRIMINAL REVISIONAL JURISDICTION
                            APPELLATE SIDE
Present:

The Hon'ble Justice Ajoy Kumar Mukherjee.

                           CRR No.1554 of 2020

                           Srikant M Abuj & Ors.
                                    Vs.
                               Soharab Sekh

For the petitioners          :Mr. Soumalya Ganguly
                              Mr. D. Ganguly

For the opposite party:       Mr. Jyoti Prakash Chatterjee


Heard on:                    04.08.2022



Judgment on:                 31.08.2022



Ajoy Kumar Mukherjee, J.

1. Being dissatisfied with the proceeding being CR case No. 68/2018 under

section 323, 341/34 of the Indian Penal Code, pending before the learned court

of Judicial Magistrate, First Court, Kalna, Purba Burdwan, Present application

under section 482 read with section 401 of the code of Criminal Procedure has

been preferred. Petitioners herein contended that opposite party/complainant's

father namely Rabiul Sekh is the borrower of the petitioner's bank and

approached for a term loan of Rs. 8 Lakhs and additional adhoc loan of Rs.

1.50 Lakhs. After perusing and verifying all the documents, the bank had

sanctioned the term loan and same was disbursed which was duly accepted by

the opposite party/complainant's father, without any protest.

2. At the time of sanctioning the said term loan, the opposite party

mortgaged the property, which is the property in question in the present

complaint and opposite party also mortgaged deed lying in the custody of the

petitioner's bank, including the form of intent to mortgage dated 10.03.2008

and the memorandum of title deeds dated 11.03.2008 duly executed by the

opposite party in favour of petitioner's bank.

3. Since the borrower /opposite party's father made default in payment of

loan amount, the bank was constrained to issue a notice under section 13(2) of

the Securitisation and Reconstruction of Financial Assets and Enforcement of

Security Interest Act 2002 hereinafter called as SARFAESI Act, on 17 th June

2010 and bank on 11 January 2011 was constrained to issue possession notice

under section 13(4) of SARFAESI Act with Rule 8(1) of SARFAESI Rule 2002.

The total due of bank is Rs. 56,22,010.13/- as on 18.07.2019.

4. Mr Soumalya Ganguly on behalf of the petitioners, submit that due to

default made by the opposite party/complainant's father for the payment of the

dues, the bank had taken appropriate steps in accordance with SARFAESI Act,

2002, following all the procedures and had taken possession of the mortgaged

property (secured assets) as per the order passed by the District Magistrate,

Burdwan on 25.04.2013 under section 14 of the SARFAESI Act. Accordingly

Nandan Ghat police along with lady police personnel, attached thereto, helped

the bank authorities to take physical possession of the said mortgaged

property, duly following the proper procedure such as preparation of the

inventory dated 26.07.2017, panch nama dated 26.07.2017, and also

conducted proper videography of the whole process Opposite

party/complainant had already filed writ for police inaction being WP No.

22140 (w) of 2017 before the Hon'ble High Court, Calcutta which was disposed

of on 31.08.2017, observing that the police authority in this case had acted in

accordance with law and that a criminal case had been filed against opposite

part/complainant which was registered as Nandan Ghat P.S. Case No.

205/2017 dated 10.08.2017 under sections 453/461/506/34 of the I.P.C.

5. Mr. Gangully further submits that the petitioner no. 1 was not present

during the time of taking the physical possession and his name has been

included in the complaint with wrongful intention and to harass petitioner no.

1. He further submits that the entire premise for filling such criminal case is

false and frivolous and not legally sustainable in the eyes of law, since the

entire crux of the criminal case arises out of default /non payment, made by

the borrower /opposite party's father and the intimation of SARFAESI

proceeding was duly complied. The opposite party created a facade by filing

such complaint case, only with mala fide intention to harass officers of the

bank from taking steps for recovery of the legitimate dues of the bank.

Therefore, the intention of impugned proceeding is clearly with malafide

intention to harass and vex the bank and it's officers and as such, it is liable to

be quashed. He further submits that on perusal of the complaint it appears

that all the accused persons reside at places beyond the territorial jurisdiction

of learned ACJM, Kalna, Purba Burdwan and in such conspectus of the matter,

it was imperative on the part of the learned Magistrate to conduct an inquiry in

terms of section 202 of the code of criminal procedure, prior to deciding on the

question of issuance of the process against the accused in the instant case. He

further submits that the dispute completely is civil in nature and as such on

that ground alone the said complaint case is not sustainable in the eyes of law.

6. On perusal of the petition of complaint along with annexure, it appears

that in the written complaint it has been alleged that on 26.07.2017 at about

3:30 p.m. the accused persons illegally trespassed into the house of the

complainant and started threatening them. When the complainant and others

raised protest, the accused persons had physically assaulted , complainant and

his father and also abused them with filthy languages. They also outraged

modesty of the family members and illegally tried to take possession of the

complainant's house. In the complaint it is further alleged that Rabiul Sekh

had taken loan mortgaging complainant Sohrar Sekh's dwelling house but

Sohrar sekh had not taken and loan and for which he has got no liability in

connection with repayment of said loan amount. The accused persons with an

illegal motive has trespassed into the house, ransacked the house and tried to

kill complainant and his father and also outraged modesty of the female

members of the house.

7. Inspite of the service of the summons none appeared on behalf of

opposite party.

8. It appears from the documents marked as annexure that complainant's

father Rabiul Sekh borrowed money from the bank mortgaging the property in

question and as the said borrower failed to repay the loan amount the bank

lawfully initiated proceedings under the relevant provisions of SARFAESI Act

read with SARFAESI rules 2002. According to petitioners the total outstanding

amount is Rs. 56,22,010.13/- as on 18.07.2019 and it further reveals from the

submissions and documents filed on behalf of the petitioner that the bank

following the procedure laid down in SARFAESI Act, 2002, had taken

possession of the mortgaged property on 25.04.2013 under section 14 of the

SARFAESI Act, due to non-payment of outstanding Loan amount. Accordingly

documents reveal, whatever steps have been taken by the petitioner, in taking

possession of the mortgaged land, arose due to non-payment of the outstanding

loan amount. Even if there is dispute between the parties in connection with

taking over mortgaged property by the bank, on the ground of non-payment of

outstanding amount that dispute is purely civil in nature. The allegations

levelled in the complaint in the above background appears to be absurd and

inherently improbable in view of the fact that there appears to be no animosity

in between the petitioners and the borrower or his family members. Taking over

possession of the mortgage property has been done in accordance with

concerned statute, so there cannot have any reason or mens rea to assault the

borrower or his family members or to outrage modesty of the borrowers family

members and as such it is palpably clear that the present proceeding has been

initiated by the complainant out of grudge and to harass the petitioners by

entangling them in a criminal proceeding.

9. In State of Haryana Vs. Bhajanlal reported in (1992) Supp (1) SCC

335, it was held that criminal proceeding should be quashed when the

complaint does not disclose a prima facie cognizable offence or when the

allegation in the petition of complain or the FIR are inherently improbable or

absurd or when the petition of complain or the FIR is a mala fide one intended

to harass the opponent or when no evidence of legal character is available or

when there is legal bar to the entertainability of the application.

10. In view of above I find that following ratio of Bhajanlal's Case (supra)

this is a fit case where invoking power under section 482 of the code, the

present proceeding is required to be quashed as further proceeding, if allowed

to be continued, that will be an abuse of the process of the court. In view of

above all further proceeding in CRR 1554 of 2020 pending before Learned

Court of Judicial Magistrate, 1st Court, Kalna, Purba Burdwan is herby

quashed.

11. CRR 1554 of 2020 is accordingly allowed.

There will be no order as to costs.

Urgent photostat certified copy of this order, if applied for, shall be given to the

parties as expeditiously as possible.

(AJOY KUMAR MUKHERJEE, J.)