A. Ramalingeswara Rao, J.

The 3rd accused in FIR No.421 of 2008 on the file of P.S. Begumpet, Hyderabad is the petitioner in this writ petition.

2. As per the averments in the affidavit filed by the petitioner, the 3rd respondent approached the petitioner for education loan to his son for his 2 years study of Diploma in Hotel Management at Geneva, Switzerland. The petitioner sanctioned a loan of Rs. 4,50,000/- on 02.05.2002 and the same was availed by the 3rd respondent and his son as co-borrowers through loan account No.10161741349. The loan amount was secured by equitable mortgage created by the 3rd respondent over his plot No.69 admeasuring 311 square yards situated at Autonagar, Saroornagar Mandal, Ranga Reddy District. Since the borrowers failed to repay the loan, steps were initiated under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short `SARFAESI Act'). A demand notice under Section 13 (2) of the Act was issued on 02.05.2006 followed by a possession notice on 06.08.2006. Both the notices were published in Hindu and Eenadu on 29.05.2006 and 07.08.2006 respectively. Later on, an auction notice was issued on 22.02.2007 which was published in Indian Express and Prajasakthi on 28.02.2007 fixing the auction on 30.03.2007. Three bidders participated in the auction and the bid of the 2nd accused was found to be highest and sale certificate was issued in his favour on 02.06.2007. After adjusting the amount outstanding to the loan amount, the balance amount was put in fixed deposit at the request of the 3rd respondent on 03.06.2007. Thereafter, at the request of the 3rd respondent, the fixed deposit proceeds were transferred to the account of the 3rd respondent at Bangalore on 17.12.2007.

3. The 3rd respondent initially filed a complaint No.4357/2007-08 before the Banking Ombudsman and the same was rejected on 06.11.2007 on the ground that the complaint requires consideration on elaborate documentary and oral evidence. Thereafter, the 3rd respondent filed CD.No.580/2008 before the District Consumer Disputes Redressal Forum-III, Hyderabad and the same also dismissed on 27.07.2009. It appears that when the said complaint was pending, he filed a complaint on 30.06.2008 before the XI Additional Chief Metropolitan Magistrate at Secunderabad against the petitioner as accused No.3, the then Chief Manager/Authorized Officer as accused No.1 and the auction purchaser as accused No.2 alleging that they committed offences under Sections 420, 415, 418, 464, 477 (A), 506 and 409 of Indian Penal Code. The learned XI Additional Chief Metropolitan Magistrate referred the complaint to the 2nd respondent for investigation and the same was registered as FIR No.421 of 2008.

4. The 2nd respondent issued a notice to the Chief Manager of the Bank on 26.02.2009 to attend the police station in person. The Chief Manager attended the police station and explained the case. Thereafter, the 2nd respondent issued a letter on 18.07.2009 to furnish the information on the loan account and the same was furnished to him on 07.08.2009. Another letter was issued on 07.11.2009 calling for various documents and the same was also furnished on 05.01.2010. Again letters dated 25.03.2010 and 27.03.2010 were issued calling for some more documents. At that stage, this writ petition was filed on 06.04.2010. This writ petition was admitted on 07.04.2010 and stay of all further proceedings in FIR No.421 of 2008 was granted.

5. The 2nd respondent filed a counter stating that the complaint received him was registered as Crime No.421 of 2008 on 24.12.2008 and investigation was taken up. During the course of investigation, he examined the 3rd respondent/complainant and his son and recorded their detailed statements. He noticed ambiguity in the statements of the complainant as well as the alleged accused. The bank authorities stated that the loan account of the 3rd respondent became NPA (Non- Performing Account) from Fe