Mukesh Kumar Singh vs Shri Binay Kumar Ranjan
2021 Latest Caselaw 3764 Jhar

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           IN THE HIGH COURT OF JHARKHAND AT RANCHI

                           Cr. Revision No. 1052 of 2013

           Mukesh Kumar Singh, son of Kripal Singh, resident of Loco Bazar,
           Gomoh, P.O., Gomoh, P.S.-Topchanchi, District-Dhanbad
                                        ...   ...    ...     Petitioner
                                   Versus
           1.Shri Binay Kumar Ranjan, father's name not known to the
           petitioner, resident of "Bhagyoday" Building, Union Bank of India,
           Dhanbad Branch, P.O. & P.S. BankMore, District Dhanbad
           2. The State of Jharkhand ...      ...    ...     Opposite parties

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. A.K. Sahani, Advocate For the Complainant(O.P. 1) : Mr. Suraj Prakash, Advocate For the State : Ms. Priya Shrestha, A.P.P.

Through Video Conferencing

14/04.10.2021

1. Heard Mr. A.K. Sahani, learned counsel appearing on behalf of the petitioner.

2. Heard Mr. Suraj Prakash, learned counsel appearing on behalf of the opposite party No. 1-complainant.

3. Heard Ms. Priya Shrestha, learned counsel appearing on behalf of the opposite party-State.

4. This criminal revision is directed against the order dated 24.09.2013, passed by learned Judicial Magistrate, Dhanbad in C.P. Case No. 2747 of 2012, whereby the complaint petition filed by the petitioner has been dismissed under Section 203 of the Cr. P.C.

5. From the perusal of records of this case, it appears that at the time of filing of the case, only the certified copy of the complaint petition with solemn affirmation of the complainant as well as certified copy of the impugned order dated 24.09.2013 were filed and the deposition of two witnesses who were examined on behalf of the complainant were not filed.

Accordingly, vide order dated 09.01.2018, the petitioner took time to bring the evidences of the enquiry witnesses on record and pursuant thereto a photocopy of the certified copy of the evidence of two enquiry witnesses were filed and their certified copies were also filed vide filing No. 1257 dated 16.08.2021 which are taken on record.

6. It further appears from the office note that the lower court records of the complaint case are missing and efforts are being made to find out the same. Considering the fact that the certified copy of the complaint petition, solemn affirmation of the complainant, list of documents filed before the learned court below as well as certified copy of the two witnesses examined under Section 202 and the certified copy of the order dated 24.09.2013 passed by the learned court below refusing to take cognizance of the offence and dismissing the complaint petition are on record, the case was argued by the learned counsel for the parties and order was reserved on 31.08.2021. The case was listed for pronouncement of judgment on 27.09.2021, but was adjourned to 04.10.2021 and is being accordingly pronounced today.

Arguments of the petitioner-complainant

7. Learned counsel for the petitioner while assailing the impugned order dated 24.09.2013 submitted that at the time of taking cognizance of the offence, learned court below has to only consider as to whether any prima-facie case is made out against the accused or not. The leaned court below has no jurisdiction to record any finding in absence of any evidence during trial to discard the version of the evidence collected in course of enquiry. The evidence at enquiry stage is only for the purposes of forming a prima-facie case and it cannot be construed to be evidence for conviction and is required to be scrutinized accordingly. Learned counsel has emphatically submitted that the learned court below erred in observing that the complainant failed to establish prima-facie case for the

alleged offence against the accused and accordingly the impugned judgment is not sustainable in the eyes of law. During the course of argument, learned counsel for the petitioner-complainant has laid stress on the allegation made against the accused in connection with offence under Section 384 of the Indian Penal Code. He submits that the accused, who was the Branch Manager of bank had come to the house of the petitioner on 12.08.2012, when the two enquiry witnesses were present, and in their presence, the accused had asked for Rs. 50,000-Rs.60,000 additionally stating that the same will resolve all the problems of the complainant. However, the complainant did not trust the accused due to which the complainant has been subjected to fraud and misappropriation of money deposited by the complainant and the accused had also threatened the complainant for filing criminal cases. Learned counsel for the petitioner has also referred to the solemn affirmation of the complainant as well as the evidence of enquiry witnesses to submit that all of them have supported the allegations against the accused and they were present at the house of the complainant during the date and time of occurrence and accordingly there were sufficient materials before the learned court below for constituting a prima-facie case against the accused. Learned counsel for the petitioner has submitted that the learned court below has failed to exercise its power conferred under the provisions of the Cr. P.C. and has committed illegality in rejecting the complaint under Section 203 of the Cr. P.C.

Arguments of the opposite party no. 1 - accused

8. Learned counsel appearing on behalf of the opposite party No. 1 has submitted that a counter affidavit has been filed in the instant case on behalf of the accused branch manager of the bank wherein it has been stated that the petitioner had taken loan from the bank and defaulted in payment of monthly instalment and consequently his account was classified as NPA

(non performing asset). He submits that the loan was sanctioned to the petitioner in the month of July, 2010 and equal monthly instalments amounting to Rs. 9528/- per month was to be deposited. The petitioner paid only Rs. 42, 000/- during the period from 12.07.2010 to 30.08.2011, although he was liable to pay Rs. 1,14, 536/- and therefore the account of the petitioner was classified as NPA. On 8.8.2011, total dues was Rs. 4,28,329/- and notice dated 20.10.2011 under Section 13 (2) of the SARFAESI Act (Securitisation and Reconstruction of Financial assets and Enforcement of Security Interest Act, 2002) was issued asking the petitioner to discharge full liability to the tune of Rs. 4,33,757/- (as the interest had also accrued) within 60 days, failing which, the bank would proceed under Section 13 (4) of the SARFAESI Act. When this petitioner failed to discharge the liability, the bank had taken physical possession of the mortgage period on 16.02.2012 under Rule 9 of the Security interest (Investment) Rules, 2002 and the petitioner started making repayment and on 30.08.2012, there was outstanding dues of Rs. 1,80,799/- but no interest was charged from 01.04.2012 to 30.08.2012. The petitioner had made excess payment and hence the accused, being the branch manager, refunded Rs. 25,800/- to the petitioner on 05.09.2012 after deduction of interest and debts and the account was closed. He submits that after closure of the account, the petitioner with his ill motive and after three months on 13.12.2012, filed the case only to harass the branch manager of the bank. He submits that while filing the case on 13.12.2012, the petitioner remained completely silent as to what happened after 12.08.2012, which is the date as alleged in the complaint petition regarding demand of Rs. Rs.50,000-60,000. He has also referred to the judgment passed by the Hon'ble Supreme Court reported in (2015) 6 SCC 287 (Priyanka Srivastava and Another versus State of Uttar Pradesh and Others) and has particularly referred to para 27,32 and 33 to submit that it has

been held in para 27 of the aforesaid judgment that the learned Magistrate is required to be remain vigilant with regard to the allegations made and in a case where the accused persons are serving in high positions in the bank, the Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out and it was also to be noted that when a borrower of financial institution covered under the SARFAESI Act, invokes the jurisdiction and there is also a separate procedure for recovery, an attitude of more care, caution and circumspection has to be adhered to . The Hon'ble Supreme Court also observed that the position does not matter as nobody is above law. Learned counsel while referring to paragraph 32 and 33 submits that the Hon'ble Supreme Court also considered the statutory protection extended to the officers and managers exercising any of the rights of the secured creditor for anything done in good faith under the provisions of the SARFAESI Act and that the Legislative mandate is required to be kept in mind. Arguments in rejoinder by the petitioner

9. In response, the learned counsel appearing on behalf of the petitioner has submitted that the accused-opposite party No. 1 was not the authorized officer of the bank within the meaning of SARFAESI Act, 2002 and he cannot claim any protection of acting in good faith by referring to Section 32 of the SARFAESI Act.

Findings of this court

10.After hearing the learned counsel for the parties, this court finds that the complaint was filed on 13.12.2012 under Sections 384/420/406/409/468 of the Indian Penal Code and the date of occurrence were mentioned as 12.07.2010, 31.08.2011, 31.08.2012, 4.9.2012 and 12.08.2012. The complaint did not disclose material facts which had taken place on 05.09.2012 when the petitioner cleared the dues of the bank and obtained no dues certificate and ultimately, the auction of the secured

assets, which was fixed on 06.09.2012, did not take place. The complaint did not disclose another material fact that it was the accused -opposite party no. 1, being the branch manager , who refunded the excess amount paid by the petitioner after adjusting the dues of the bank. However, these facts appear from the solemn affirmation of the petitioner and undisputed facts on record as the notice issued under section 13(2) of the SARFAESI Act has been filed by the accused opposite party which is not in dispute.

11.From perusal of complaint petition and solemn affirmation of the complainant and the materials available on record, the following facts are not in dispute: -

12.07.10 The complainant had taken personal loan of an amount of Rs.4,05,000/- from the Bank to be refunded in 60 monthly instalments @ Rs.9528/- per month.

31.08.11 The account of the complainant was declared as non-

performing asset.

20.10.11 The Bank issued notice under Section 13 (2) of the SARFAESI Act for enforcement of security of immovable property and as on 31.08.2011, an amount of Rs.4,33,757/- was shown to be outstanding and the petitioner was to pay the aforesaid amount with contractual rate of interest from 01.09.2011 as per the terms and conditions of the loan within 60 days from the date of receipt of the notice.

14.11.11 As per the complainant, notice was served upon him on

14.11.2011 and in the meantime, he deposited an amount of Rs.1,72,771/- during the period from 30.09.2011 to 03.07.2012. According to the complainant, an amount of Rs.2,60,986/- only remained unpaid.

03.08.12 Notice for auction was published in the newspaper showing dues to the tune of Rs.4,33,757/-

06.09.12    The date of auction was fixed as 06.09.2012


   24.08.12     As per the petitioner, he deposited an amount of
   to           Rs.2,15,000/- during this period.
   04.09.12
   30.08.12     The petitioner met the accused who informed him that if

dues amount to Rs.2,88,580/- is not deposited, the property will be auctioned on 06.09.2012. The petitioner has also stated in his solemn affirmation that as per statement of account only Rs.1,96,000/- were due as on 30.08.2012.

05.09.12 As per the petitioner, he had deposited an amount of Rs.2,88,580/- and the petitioner was given no dues certificate from the accused and ultimately the property was not auctioned.

A draft of Rs. 25,800/- was handed over to the petitioner by the accused being the branch manager, as excess amount was paid by the petitioner to the bank and the account was closed.

12. The crux of the allegation is broadly in two parts: -

a. that after declaration of the account as Non-performing Asset the petitioner had deposited substantial amount but in spite of that the bank had issued auction notice showing the dues to the tune of Rs. 4,33,757/- without adjusting the amount already deposited although an amount of Rs. 2,15,000/- was deposited during the period from 24.08.2012 to 4.9.2012. The petitioner met the accused on 30.08.2012 who informed him that if dues amount to Rs.2,88,580/- is not deposited, the property will be auctioned on 06.09.2012. The complainant has also stated in his solemn affirmation that as per statement of account only Rs.1,96,000/- only were due as on 30.08.2012. Just one day prior to the date of auction the petitioner deposited an amount of Rs.2,88,580/- as per the instructions of the opposite party -accused and the petitioner was given no dues certificate

and ultimately the property was not auctioned. It is not in dispute that a draft of Rs. 25,800/- was handed over to the petitioner on 05.09.2012 itself by the accused as excess amount was paid by the petitioner to the bank, and the account was also closed.

b. Further allegation in the complaint is that on 12.08.2012 the opposite party No. 1 had visited his house wherein two witnesses were also present and the opposite party No. 1 had demanded an amount of Rs. 50,000 to Rs.60,000/- additionally and stated that it would solve the entire problem of the complainant, but the complainant did not trust the opposite party No. 1. It is alleged that the opposite party no. 1 was instrumental in defrauding the complainant and misappropriating the money of the complainant and had threatened the complainant that serious criminal cases would be filed against him. It has been alleged in the complaint petition that the opposite party No. 1 had pressurized the complainant and realized an excess amount of Rs. 1,93,588/- during the period from 4.09.2012 to 5.9.2012 under the threat of auctioning the property which is against the provisions of the banking rules and in violation of all the agreements the opposite party no. 1 had realized an amount of Rs. 5,97,551/- in a span of 25 months and 5 days instead of 60 months and had misappropriated the said additional recovery of Rs. 5,97,551/-.

13. The complaint petition though filed on 13.12.2012, does not disclose that entire loan account was cleared by the complainant and no dues certificate was also issued in connection with the loan account and the excess amount of Rs. 25,800/- was also returned vide bank draft issued by the accused opposite party no.1 and further the loan account was also closed. It is not in dispute that no dues certificate was issued on 05.09.2012 i.e. just one day prior to the auction date which was fixed on 06.09.2012 and the auction did not take place.

14. So far as the allegations mentioned in para 13 (a) above is concerned ,this court is of the considered view that the borrower had remedies under the provisions of SARFAESI Act itself with regard to redressal of his grievances including raising objection under section 13(2) of the Act and further provision regarding redressal of grievance against the action of the bank under section 13(4) of the Act by filing an appeal under section 17 of the SARFAESI Act before the Debt Recovery Tribunal. Such remedies include any grievance regarding quantification of the dues. As per the records, the petitioner did not raise any grievance under the provisions of the SARFAESI Act and after closure of the account and after taking refund of the excess amount of Rs. 25,800/-as back as on 05.09.2012, the petitioner filed the complaint case on 13.12 2012 that too without disclosing all the material facts in the complaint petition regarding closure of the account; ; refund of the excess amount of to Rs. 25,800/- as back as on 05.09.2012 and that he could save his property as auction did not take place on account of closure of the loan account itself. However, the entire facts have come to light in the solemn affirmation of the complainant on 07.01.2013.

15. In the judgement passed by the Hon'ble Supreme Court reported in (2020)4 SCC 440 ( K. Virupaksha v. State of Karnataka) , it has been held in para 15 and 16 as under:-

"15. The SARFAESI Act is a complete code in itself which provides the procedure to be followed by the secured creditor and also the remedy to the aggrieved parties including the borrower. In such circumstance, as already taken note of by the High Court in writ proceedings, if there is any discrepancy in the manner of classifying the account of the appellants as NPA or in the manner in which the property was valued or was auctioned, DRT is vested with the power to set aside such auction at the stage after the secured creditor invokes the power under Section 13 of the SARFAESI Act. This view is fortified by the decision of this Court in Indian Overseas Bank v. Ashok Saw Mill wherein it is held as hereunder:

34. The provisions of Section 13 enable the secured creditors, such as banks and financial institutions, not only to take possession of the secured assets of the borrower, but also to take over the management of the business of the borrower,

including the right to transfer by way of lease, assignment or sale for realising secured assets, subject to the conditions indicated in the two provisos to clause (b) of sub-section (4) of Section 13.

35. In order to prevent misuse of such wide powers and to prevent prejudice being caused to a borrower on account of an error on the part of the banks or financial institutions, certain checks and balances have been introduced in Section 17 which allow any person, including the borrower, aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor, to make an application to the DRT having jurisdiction in the matter within 45 days from the date of such measures having taken for the reliefs indicated in sub-section (3) thereof.

36. The intention of the legislature is, therefore, clear that while the banks and financial institutions have been vested with stringent powers for recovery of their dues, safeguards have also been provided for rectifying any error or wrongful use of such powers by vesting the DRT with authority after conducting an adjudication into the matter to declare any such action invalid and also to restore possession even though possession may have been made over to the transferee.

37. The consequences of the authority vested in the DRT under sub-section (3) of Section 17 necessarily implies that the DRT is entitled to question the action taken by the secured creditor and the transactions entered into by virtue of Section 13(4) of the Act. The legislature by including sub- section (3) in Section 17 has gone to the extent of vesting the DRT with authority to even set aside a transaction including sale and to restore possession to the borrower in appropriate cases. Resultantly, the submissions advanced by Mr Gopalan and Mr Altaf Ahmed that the DRT has no jurisdiction to deal with a post-Section 13(4) situation, cannot be accepted.

16. We reiterate, the action taken by the Banks under the SARFAESI Act is neither unquestionable nor treated as sacrosanct under all circumstances but if there is discrepancy in the manner the Bank has proceeded it will always be open to assail it in the forum provided. ................................"

16. Filing of the complaint case by the petitioner on 13.12.2012, after taking back the excess amount paid to the bank amounting to Rs. 25,800/- and after receiving "no dues certificate" from the accused and closure of the loan account on 05.09.2012, is apparently an afterthought and an intimidatory tactic which is an abuse of the process of law particularly in view of the fact that apparently the petitioner never resorted to any of the statutory remedies available under SARFAESI Act where disputes regarding outstanding dues

could also be adjudicated.

17. The learned court below while refusing to take cognizance of offence has considered the fact that it was an admitted position that the petitioner had taken loan and had defaulted in repayment and accordingly there was no illegality regarding publication of notices etc. as per the provisions of banking law. The learned court below also recorded that the complainant has failed to establish the prima facie intention to cheat on the part of the accused person and the evidences did not establish the factum of forgery as alleged.

18. So far as the alleged incident of 12.08.2012 is concerned, the learned court below did not find any satisfactory evidence and was of the considered view that the story as propounded by the petitioner appeared to be improbable particularly with regards to demand of bribe. This court finds that admittedly prior to 12.08.2012 the auction notice was already published and the auction was scheduled to be held on 06.09.2012. The entire procedure under the SARFAESI Act right from issuance of notice under section 13(2) is undertaken by the authorised officer of the bank and admittedly the accused was not the authorised officer but was the concerned branch manager. Admittedly, the petitioner, borrower cum defaulter , had visited the bank to find out the outstanding dues which changes from time to time as the dues are realisable with up-to-date interest and costs etc. Admittedly the petitioner did not approach DRT for redressal of his grievances, if any, in connection with action taken under SARFAESI Act. Admittedly substantial amount was paid by the petitioner on 5.9.2012 to have a no dues certificate from the bank and closed the loan account and ultimately the auction did not happen on 06.09.2012.

In the complaint petition in connection with incident dated 12.08.2012 it has been mentioned that the accused branch manager, in presence of two witnesses, had come to the house of the complainant and additionally demanded Rs. 50-60 thousand and had stated that such payment will resolve all the problems of the complainant but the complainant did not trust the accused and the

accused threatened the complainant for filing serious criminal cases. It has not been stated in the complaint petition that the said amount was demanded as a bribe, but it has been mentioned that the said amount was additionally demanded and similar statement has been made even in the solemn affirmation of the complainant. Admittedly, on 12.08.2012 there were outstanding dues of the bank payable by the petitioner and the property was scheduled to be auction sold on 06.09.2012 and the officers of the bank including the branch manager was within their right to demand payment so that the dues are cleared and property is saved from auction. Admittedly, the petitioner neither gave any amount to the accused branch manager on 12.08.2012, nor raise any grievance against the accused branch manager. Rather, the petitioner met the accused on 30.08.2012, who informed him that if dues amount to Rs.2,88,580/- is not deposited, the property will be auctioned on 06.09.2012 as the property was already put for auction. The complainant has also stated in his solemn affirmation that as per statement of account, only Rs.1,96,000/- was due as on 30.08.2012. Just one day prior to the date of auction, the petitioner deposited an amount of Rs.2,88,580/- in the loan account as per the instructions of the opposite party - accused and the petitioner was given no dues certificate by the accused and ultimately the property was not auctioned. It is also not in dispute that a draft of Rs. 25,800/- was handed over to the petitioner on 05.09.2012 itself by the accused as excess amount was paid by the petitioner to the bank and the account was closed. So far as C.W. 1 is concerned, he stated that on 12.08.2012 he was sitting in the house of the complainant and at that point of time, the branch manager demanded Rs. 50-60 thousand by way of bribe and stated that auction in connection with the non-payment of loan amount will be taken care of. He has also stated that the complainant did not pay the money and thereafter the manager of the bank left. The other complaint witness C.W-2 has stated that incident is of 12.08.2012 at about 3-4 P.M. At that point of time, he was sitting in front of the house when the accused arrived with 1-2 persons and

was asking for deposit of the loan amount and when the complainant told that the loan amount will be soon deposited, then the accused told him that in case of non-deposit of the loan amount, the property will be auctioned. He has also alleged that the accused demanded Rs. 50-60 thousand by way of bribe and stated that if this amount is paid, the problem will be resolved.

From perusal of the complainant petition in connection with incident on 12.08.2012 it appears that though an amount of Rs. 50-60 thousand was alleged to have been demanded in addition, but nothing has been mentioned that the same was demanded by way of bribe. It is not in dispute that the accused of the present case was under obligation to make all efforts to realize the dues payable to the bank and it was not within his domain to stop the auction as the action under the SARFAESI Act was being undertaken by the authorized officer for which publication was already made and date of auction was fixed and the only way to save the property was to clear all the outstanding dues of the bank. In fact, the petitioner cleared the outstanding dues of the bank prior to auction and saved his property in consultation with the accused branch manager who not only informed him about the amount to be deposited and on the same day also refunded the excess amount paid by the petitioner amounting to of Rs. 25,800/- without any hassle from his side. Further, it is not in dispute that on 12.08.2012, there was huge outstanding against the petitioner. The allegation regarding demand of Rs. 50-60 thousand, by way of bribe, was not made even by the complainant in the solemn affirmation, rather it was stated by the complainant that an amount of Rs. 50-60 thousand was additionally demanded which he did not pay and it was stated by the opposite party No. 1 accused that if the additional amount is paid, then the property will not be auctioned.

It was the complaint witnesses who alleged that the amount of Rs 50-60 thousand was demanded by the accused by way of bribe and this witness came to know about the loan after the accused had left. So far as other witness namely Ajit Singh is concerned, he has stated

that the accused had come with 1-2 persons asking the petitioner to clear the loan and the petitioner had stated that he would soon deposit the dues upon which the accused said that if the amount is not deposited, then the landed property will be auction sold and this witness has stated that the accused demanded 50-60 thousand Rs. by way of bribe and said that if this amount is given, then the problem will be taken care of.

Once the complainant himself had expressed that he would clear the dues of the bank soon which is evident from the evidence of inquiry witness, there was no occasion for the petitioner to be under any kind of fear and there could have been no occasion for the accused also to demand any bribe to prevent the auction of the property. In fact, the petitioner subsequently cleared the entire dues of the bank prior to the date of auction as detailed above that too in consultation of the accused branch manager.

19. The conduct of the accused branch manager and his full cooperation with the petitioner to enable him to save the property from auction and his further conduct of refunding the excess amount promptly on the very same day of deposit when seen in the light of totality of the circumstances of the case clearly indicates that the allegation of demand of money as bribe is highly improbable. Accordingly, the reason assigned by the learned court below for holding that the allegation of demand of bribe is improbable does not suffer from any illegality or perversity or irregularity calling for any interference by this court in exercise of powers under section 482 of Cr.P.C. In fact the petitioner was also under the pressure to repay the loan and there was no allegation of any additional threat or coercion extended to the complainant by the accused branch manager. This court finds that prima-facie , the basic ingredients for offence under Section 384 IPC is not at all satisfied in the present case and accordingly the learned court below rightly did not take cognizance of the alleged offence.

20. In the judgement passed by the Hon'ble Supreme Court reported in

(2015) 6 SCC 287 (Priyanka Srivastava v. State of U.P, it has been held as under: -

"33. At this juncture, we may fruitfully refer to Section 32 of the SARFAESI Act, 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."

21. This court finds that the provision of section 32 of the SARFAESI Act is not only for the authorised officer under the SARFAESI Act but also for other officers of the secured creditor. Accordingly, the argument of the learned counsel for the petitioner that the accused branch manager being not an authorised officer is not entitled to protection under section 32, is devoid of any merit, hence rejected.

22. It has also been held in the judgement passed by the Hon'ble Supreme Court reported in (2015) 6 SCC 287 (Priyanka

Srivastava v. State of U.P at para 27 that when a borrower is covered under SARFAESI Act and the borrower invokes the jurisdiction under section 156(3) of Cr.P.C. and also, there is a separate procedure under Recovery of debt due to banks and financial institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to while dealing with the criminal case. Para 27 of the aforesaid judgement is quoted as under for ready reference: -

"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 the SARFAESI 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."

23. This court finds that the learned court below has exercised his jurisdiction with the required attitude of more care, caution and circumspection and has rightly refused to take cognizance of the alleged offence.

24. In the aforesaid facts and circumstances, this Court does not find any illegality or perversity in the impugned order refusing to take cognizance of offence against the opposite party no.1 and accordingly, this petition is dismissed.

25. Pending interlocutory application, if any, is dismissed as not pressed.

26. The office is directed to send a copy of the entire records of this case, as well as a copy of the certified copy of the evidences of the two witnesses which has been placed on record by filing before this court by the learned counsel. The entire record of this case is also directed to be scanned by the office for future purposes, if any. It is further observed that the lower court records be also sent back as soon as they are traced by the office.

27. Let a copy of this order be communicated to the learned court below through 'e-mail/FAX'.

Binit/                                           (Anubha Rawat Choudhary, J.)