TaxTMI 
TaxTMI 
TaxTMI 
2015 (5) TMI 47
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....ithout any remote remorse, with the inventive design primarily to create a mental pressure on the said officials as individuals, for they would not like to be dragged to a court of law to face in criminal cases, and further pressurize in such a fashion so that financial institution which they represent would ultimately be constrained to accept the request for "one-time settlement" with the fond hope that the obstinate defaulters who had borrowed money from it would withdraw the cases instituted against them. The facts, as we proceed to adumbrate, would graphically reveal how such persons, pretentiously aggrieved but potentially dangerous, adopt the self-convincing mastery methods to achieve so. That is the sad and unfortunate factual score forming the fulcrum of the case at hand, and, we painfully recount. 2. The facts which need to be stated are that the respondent No.3, namely, Prakash Kumar Bajaj, son of Pradeep Kumar Bajaj, had availed a housing loan from the financial institution, namely, Punjab National Bank Housing Finance Limited (PNBHFL) on 21st January, 2001, vide housing loan account No.IHL-583. The loan was taken in the name of the respondent No.3 and his wife, namely,....
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....s given in the said order. Be it noted, the learned Additional Sessions Judge heard the counsel for the respondent No.3 and the learned counsel for the State but no notice was issued to the accused persons therein. Ordinarily, we would not have adverted to the same because that lis is the subject matter in the appeal, but it has become imperative to do only to highlight how these kind of litigations are being dealt with and also to show the respondents had the unwarranted enthusiasm to move the courts. The order passed against the said accused persons at that time was an adverse order inasmuch as the matter was remitted. It was incumbent to hear the respondents though they had not become accused persons. A three- Judge Bench in Manharibhai Muljibhai Kakadia and Anr. v. Shaileshbhai Mohanbhai Patel and others (2012) 10 SCC 517 has opined that in a case arising out of a complaint petition, when travels to the superior Court and an adverse order is passed, an opportunity of hearing has to be given. The relevant passages are reproduced hereunder: 46. .......If the Magistrate finds that there is no sufficient ground for proceeding with the complaint and dismisses the complaint under Se....
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....complainant challenging the order of dismissal of complaint, one of the things that could happen is reversal of the order of the Magistrate and revival of the complaint. It is in this view of the matter that the accused or other person cannot be deprived of hearing on the face of the express provision contained in Section 401(2) of the Code. The stage is not important whether it is preprocess stage or post process stage. xxxxx xxxxx xxxxx 53. We are in complete agreement with the view expressed by this Court in P. Sundarrajan2, Raghu Raj Singh Rousha3 and A.N. Santhanam4. We hold, as it must be, that in a revision petition preferred by the complainant before the High Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint under Section 203 of the Code at the stage under Section 200 or after following the process contemplated under Section 202 of the Code, the accused or a person who is suspected to have committed the crime is entitled to hearing by the Revisional Court. In other words, where the complaint has been dismissed by the Magistrate under Section 203 of the Code, upon challenge to the legality of the said order being laid by the compla....
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.... respondent No.3 preferred W.P. No.22254 of 2009, which was disposed of on 5th May, 2009 by the High Court, directing disposal of the same. Eventually, the objection was rejected by the competent authority vide order dated June 1, 2009. Being grieved by the aforesaid order of rejection, the respondent No.3 filed Securitisation Appeal No.5 of 2010, before the Debt Recovery Tribunal (DRT), Allahabad, U.P., which was rejected vide order dated 23rd November, 2012. The non-success before the DRT impelled the borrowers to prefer an appeal before the Debts Recovery Appellate Tribunal (DRAT), Allahabad, U.P. 7. At this stage, it is apposite to state that the third respondent, if we allow ourselves to say so, have possibly mastered how to create a sense of fear in the mind of the officials who are compelled to face criminal cases. After the High Court had quashed the earlier proceeding, the third respondent, in October, 2011, filed another application under Section 156(3) CrPC against V.N. Sahay, Sandesh Tripathi and V.K. Khanna alleging criminal conspiracy and forging of documents referring to three post-dated cheques and eventually it was numbered as Complaint Case No. 344/2011, which ga....
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....osited the full amount, for which the settlement was arrived at i.e. Rs. 15.00 lacs. Thereafter, the grievance of the appellant was that since the full amount of the settlement has been paid by the appellant, therefore, the bank should be directed to return the title deed, as the title deed was not returned. The Tribunal was of the view that since the matter has been settled, therefore, the securitization application was dismissed as infructuous and the Tribunal did not pass any order for return of the title deed. Therefore, the appellant being aggrieved of the judgment dated 23.11.2011 passed by the Tribunal has filed the present appeal. Learned counsel for the appellant submitted that after when the full amount under the settlement has been paid, the respondent- Bank was duty bound to return the title deed, which has not been returned to the appellant. It is contended on behalf of the respondent- Bank that the settlement was accepted by letter dated 14.11.2011, wherein the condition was mentioned that the appellant shall withdraw the complaint case which he has filed before the Criminal Court. Learned counsel for the appellant submitted that he has no objection to withdraw the ....
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....acts of the case, commission of cognizable offence appears to be made out and it shall be justifiable to get done the investigation of the same by the police." After so stating it directed as follows: "In the light of the application, SHO Bhelpur, Varanasi is hereby directed to register the case and investigate the same." 13. On the basis of the aforesaid order, F.I.R. No.298 of 2011 was registered, which gave rise to case Crime No.415 of 2011 for the offences punishable under Sections 465, 467, and 471 I.P.C. Being dissatisfied with the aforesaid order, the appellants moved the High Court in Crl. Misc. No.24561 of 2011. The High Court in a cryptic order opined that on a perusal of the F.I.R. it cannot be said that no cognizable offence is made out. Being of this view, it has declined to interfere with the order. Hence, this appeal by special leave. 14. In course of hearing, learned counsel for the State of U.P. has submitted that the investigating agency has already submitted the final report on 21st November, 2012. The said report reads as follows: "Complainant in the present case has not appeared before any of the investigators, even after repeated summoning. And that the a....
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....annot be marginalized. To understand the real purport of the same, we think it apt to reproduce the said provision: "156. Police officer's power to investigate congnizable case. -(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was no empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned." 18. Dealing with the nature of power exercised by the Magistrate under Section 156(3) of the CrPC, a three- Judge Bench in Devarapalli Lakshminarayana Reddy and others v. V. Narayana Reddy and others(1976) 3 SCC 252, had to express thus: "It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of inv....
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....tigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter." 21. In CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd.(2005) 7 SCC 467, the Court while dealing with the power of Magistrate taking cognizance of the offences, has opined that having considered the complaint, the Magistrate may consider it appropriate to send the complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure. And again: "When a Magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The Magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquirin....
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.... must disclose a cognizable offence. If any information disclosing a cognizable offence is led before an officer in charge of the police station satisfying the requirement of Section 154(1), the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. The provision of Section 154 of the Code is mandatory and the officer concerned is duty-bound to register the case on the basis of information disclosing a cognizable offence. Thus, the plain words of Section 154(1) of the Code have to be given their literal meaning. "Shall" xxx xxx xxx xxx 72. It is thus unequivocally clear that registration of FIR is mandatory and also that it is to be recorded in the FIR book by giving a unique annual number to each FIR to enable strict tracking of each and every registered FIR by the superior police officers as well as by the competent court to which copies of each FIR are required to be sent. "Information" xxx xxx xxx xxx 111. The Code gives power to the police to close a matter both before and after investigation. A police officer can foreclose an FIR before an investigation un....
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....d and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry." We have referred to the aforesaid pronouncement for the purpose that on certain circumstances the police is also required to hold a preliminary enquiry whether any cognizable offence is made out or not. 24. 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 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 S....
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....ess to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same. 27. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there h....