Dinamani Patel vs State Of Odisha And Another
2023 Latest Caselaw 1828 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK

AFR                       CRLMC No.2084 of 2022

        Dinamani Patel                         ....              Petitioner
                                            Mr. Subrat Mishra, Advocate



                                     -Versus-


        State of Odisha and Another        ....       Opposite Parties
                                           Mr. S.S. Mohapatra, ASC
                    Mr. Pradeep Kumar Panda, Advocate for O.P.No.2
                  CORAM:
                  JUSTICE R.K. PATTANAIK

                    DATE OF JUDGMENT:28.02.2023


      1.

Instant petition under Section 482 Cr.P.C. is filed by the petitioner for quashing of the criminal proceeding in connection with Bikrampur FCI P.S. Case No.35 dated 8th February, 2022 corresponding to 1CC Case No.10 of 2022 vis-à-vis GR Case No.299 of 2022 of the file of learned S.D.J.M., Talcher on the grounds inter alia that the same are not tenable in law and liable to be interfered with and quashed in the interest of justice.

2. The petitioner is a bank official seeking indulgence of this Court for quashing of the criminal proceeding pending in the court of learned S.D.J.M., Talcher on the ground that it has been initiated at the behest of opposite party No.2 as a counterblast to the action against him under the SARFAESI Act, 2002 and for taking physical possession of the mortgage property by the orders of the Collector, Angul and with a sole purpose to harass him and coerce the bank for settlement.

3. It has been pleaded that opposite party No.2 being the sole proprietor of M/s Sahoo Enterprises had taken working capital

Dinamani Patel Vrs. State of Odisha and Another

loan of Rs.75 lac from the Bank of Baroda, Angul Branch, Angul after having mortgaged the propriety in question as security by depositing the title deed and in that connection, due to his default and in order to realize the loan amount, action under the SARFAESI Act was initiated and statutory notice was issued to him. As it is further pleaded, during and in course of the proceeding, the bank moved the Collector, Angul for taking physical possession of the mortgaged property in terms of Section 14 of the SARFAESI Act and the same was allowed by order dated 31st March, 2021 and instead of challenging it under Section 17 (1) thereof approaching the Debt Recovery Tribunal, Cuttack, opposite party No.2 filed a complaint in 1CC Case No.10 of 2021 in the court of the learned S.D.J.M., Talcher. It is also pleaded that the learned court below without proper application of judicial mind passed order under Section 156(3) Cr.P.C., as a result of which, Bikrampur P.S. Case No.35 dated 2nd February, 2022 was registered which corresponds to G.R. Case No.299 of 2022 arraying the petitioner as an accused which was allegedly a retaliation to the action under the SARFAESI Act. In that case, as per the petitioner, a final report was laid under Annexure-8 but the learned court below instead of accepting the same invited objection of opposite party No.2 which is challenged on the ground that such a procedure should not been adopted.

4. Heard Mr. Mishra, learned counsel for the petitioner, Mr. Mohapatra, learned counsel for the State and Mr. Panda, learned counsel for opposite party No.2.

5. Mr. Mishra, learned counsel for the petitioner submits that the learned court below ought to have accepted the final report and closed the proceeding instead of keeping it for objection by opposite party No.2. It is contended that the complaint and the criminal action is tainted with malafide and a counterblast to the

Dinamani Patel Vrs. State of Odisha and Another

initiation of the proceeding under the SARFAESI Act to realize the loan amount by taking over the possession of the mortgage property by the order of the Collector, Angul. It is further submitted that for the alleged mischief by opposite party No.2, petitioner lodged an FIR and Bikrampur P.S. Case No.36 of 2022 dated 9th February 2022 was registered corresponding to G.R. Case No.302 of 2022 for having violated order of the Collector, Angul dated 31st March, 2021 passed under Section 14 of the SARFAESI Act. In such view of the matter, according to Mr. Mishra, the criminal proceeding against the petitioner is required to be quashed. It is stated that the complaint was not supported by an affidavit either nor the learned court below properly enquired into it before inviting objection from opposite party No.2 and while contending so, a cited the decision of Priyanka Srivastava and Another Vrs. State U.P. and Others (2015) 6 SCC

287. Mr. Mishra, learned counsel for the petitioner referred to other authorities which are in relation to the matters pertaining to the SARFAESI Act. Hence, the contention is that the learned court below should not have allowed opposite party No.2 to submit objection after the final report having been filed exonerating the petitioner from the alleged charges levelled against him.

6. On the contrary, Mr. Panda, learned counsel for opposite party No.2 submitted that the learned court below did not commit any error after receiving final report as it was mandatorily required under law to invite objection. In so far as the allegation in the complaint are concerned, it was in relation to an incident dated 27th December, 2021 during which the petitioner committed the alleged mischief during which opposite party No.2 was abused and assaulted by him. Even though a final report was submitted, according to Mr. Panda, the learned court below is to examine it and thereafter to decide the course of action as per

Dinamani Patel Vrs. State of Odisha and Another

law and therefore, the proceeding cannot be terminated without its reaching at a logical end. Mr. Mohapatra, learned counsel for the State shared the view point on the matter.

7. In Priyanka Srivastava (supra), the Apex Court held and observed that an application under Section 156(3) Cr.P.C. seeking direction for registration of FIR must be supported by an affidavit which is to prevent abuse of process of law. It is held therein that such exercise of jurisdiction is not of routine nature and it requires application of judicial mind and a Magistrate exercising power must remain vigilant with regard to nature of allegations made in the application and not to issue direction without verifying the truth and veracity of it. According to the Apex Court in the said decision, power under Section 156(3) Cr.P.C. cannot be invoked by a litigant at his own whim to harass others and can only be exercised at the instance of principled and really aggrieved person approaching the court in clean hands. In the said case, the matter was related to action under the SARFAESI Act and the bank authorities were found discharging duties to recover loan and in that connection, application under Section 156(3) Cr.P.C. was moved and the court in a routine and casual manner directed registration of a case which was interfered with.

8. In so far as the present case is concerned, the complaint of opposite party No.2 is apparently not supported by affidavit. The learned court below as it appears from record after having received the complaint (Annexure-5) directed registration of a case which is without any doubt is not in compliance of the direction of the Apex Court issued in Priyanka Srivastava (supra). The details of the incident dated 27th December, 2021 stand narrated in the complaint. It was alleged therein that the petitioner as the Chief Manager of the bank reached at the spot to comply the direction of the Collector, Angul so as to take

Dinamani Patel Vrs. State of Odisha and Another

physical possession of the mortgaged plots but in addition locked one more plot which was not included in the order and when it was objected to, the alleged mischief was committed. Considering the aforesaid facts, Mr. Mishra, learned counsel for the petitioner submits that the learned court below did not conduct proper enquiry and that too when the complaint was not supported by an affidavit and despite knowing the fact that the petitioner to be a bank official and was acting under the direction of the Collector, Angul to take possession of the plots under the SARFAESI Act proceeded to entertain it and directed registration of the case which is not tenable in law.

9. It is not in denial that opposite party No.2 was a loanee of the bank of the petitioner and in that regard, the Collector, Angul had passed an order under Section 14 of the SARFAESI Act and in that connection, the latter had been to the spot where the alleged incident is said to have happened. So it can be said that the petitioner was on duty and he was required to enforce the order of the Collector, Angul and at the spot when the possession of the mortgaged plots was being ensured. It has been alleged by opposite party No.2 that he was misbehaved and abused and assaulted by the petitioner. If opposite party No.2 was really aggrieved, he could have filed an appeal before the Debt Recovery Tribunal against the order of the Collector, Angul. If the petitioner had locked one more plot which was not included in the order of the Collector, Angul, it was for opposite party No.2 to take recourse to law. Nevertheless, it has been alleged that the petitioner committed certain overt acts with other antisocials. The fact remains, the petitioner was on duty at the relevant point of time and as an official of the bank had been to the spot to comply the order passed under Section 14 of the SARFAESI Act. The allegation of opposite party No.2 as to the alleged incident

Dinamani Patel Vrs. State of Odisha and Another

could not be established after a police investigation as it resulted in submission of a final report. As against the aforesaid background, the Court is of the considered view that the learned court below was required to be more cautious and vigilant before directing the local police to register an FIR as there was a need of preliminary enquiry and application of judicial mind which is what has been held by the Apex Court in the case of Priyanka Srivastava. Not only that, the learned court below knowing the fact that the petitioner is a bank official was required to insist upon opposite party No.2 to submit an affidavit, the purpose was to ensure the truthfulness and veracity of the allegation contained in the complaint.

10. Nonetheless, the investigation by the police led to the submission of a final report. No doubt, before accepting the final report, the learned court below is required to invite objection which it did in the present case and passed an order in that regard on 11th July, 2022. The procedure which has been followed is according to law. However, the fact of the matter is, the learned court below did not appear to have conducted any enquiry as it was necessary and without due application of mind in a casual manner directed registration of the case vis-à-vis the petitioner. The very action of the learned court below which is against the backdrop of the petitioner complying the order of the Collector, Angul, it was needed to be more cautious before passing order under Section 156(3) Cr.P.C. The Apex Court in the decision of Priyanka Srivastava (supra) sounded caution before issuing any such direction for registration of a case and therein it was also against the authorities of the bank, who were discharging duties to recover the loan dues from the defaulter. According to the Court, opposite party No.2 did have the opportunity and remedy to challenge the action of the petitioner, who was simply

Dinamani Patel Vrs. State of Odisha and Another

discharging his duty in order to enforce the direction of the Collector, Angul. The Court is also of the view that the learned court below lost sight of the aforesaid fact and passed an order under Section 156(3) Cr.P.C. without conducting a proper enquiry to ascertain and find out the truth of the matter morefully when the complaint was not even supported by an affidavit the purpose of which is to desist filling of false complaint and to ensure that an innocent is not unduly harassed. The said action of the learned court below is in clear derogation to the directions of the Supreme Court issued in Priyanka Srivastava case.

11. Accordingly, it is ordered.

12. In the result, the CRLMC stands allowed. As a necessary corollary, the criminal proceeding in connection with Bikrampur FCI P.S. Case No.35 dated 8th February, 2022 emanating from 1CC Case No.10 of 2022 and corresponding to GR Case No.299 of 2022 of the file of learned S.D.J.M., Talcher is hereby quashed for the reasons discussed herein above.

(R.K. Pattanaik) Judge

TUDU