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2019 Supreme(Bom) 1108
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S. Shinde, J.
Mr. Mahesh Pralhad Salunke - Petitioner
Versus
Bharati Sahakari Bank Ltd. - Respondent
Criminal Writ Petition No. 2131 OF 2019 With Criminal Writ Petition No. 2450 OF 2019
Decided On : 16-08-2019
For the Petitioner: Mr. Uday Babade i/by. Mr. Jeetendra H. Ramugade, Mr. Balwant Salunke i/by. Ms. Priyanka G. Chandaliya
For the Respondent: Mrs. M.R. Tidke, APP, Mr. Vijay D. Patil a/w. Mr. Yogesh Patil
Headnote:
Criminal Procedure Code,1973 – Section 200,202,204 and 482 – Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act,2002 – Section 13(2) and 13(4) - Mortgage loan - These petition takes an exception to order of issuance of process passed by Ld. Judicial Magistrate - Advocate appearing for the Petitioner in Writ Petition submits that one had applied for the mortgage loan with the Respondent No.1 bank by mortgaging his property i.e. Executive of whom he is the Proprietor – Said one also obtained registration certificate in name of Executive as proprietorship - Said one also having Form ST2 issued by Central Board of Excise and Custom, Ministry of Finance Department of Revenue in the name of Executive - He is also having license to run business in name of Executive as a Proprietor issued by Sub Divisional Magistrate - Learned counsel submits that Petitioner had never obtained loan from Respondent Bank and it is said one who had obtained mortgage loan in the capacity of proprietor Executive and not by Petitioner - Petitioner has neither concern with the loan obtained by the said one nor he is signatory to cheque, order passed by Trial Court of issuance of process deserves to be quash and set aside - Respondent Bank had already initiated action under SEARFEASI Act against Petitioner and also obtained symbolic possession over properties of Petitioner to secure their loan amount and question of depositing the said cheque which was as a security towards the loan amount does not arise - Whether the criminal proceedings can be quashed even before the commencement of the Trial – Held, contention of counsel appearing for the Petitioners that, proceedings under the SARFEASI Act are pending and properties are seized and present proceedings cannot proceed further and deserves to be quashed, has no any basis - Petitioners have not brought to notice of this Court any legal provisions/ impediment for proceeding with the complaint filed by Respondent Bank due to pendency of proceeding under the SARFEASI Act - Averments in the complaint would clearly demonstrate that, alleged offences are disclosed - In Rajesh Aggarwal v/s,. State, 2010 (171) DLT 51, this Court noted that High Court is flooded with petitions under Section 482 Cr.PC for challenging summoning order passed by Magistrate under Section 138 of Negotiable Instruments Act - This Court further noted that the accused rush to High Court on mere passing of summoning order and are successful in halting proceedings before Magistrate on one or the other ground while the kind of defence raised by the Petitioners is required to be raised before the Magistrate at the very initial stage as per the law - It appears that before passing the impugned order the Magistrate has followed the procedure as contemplated under Sections 200 and 202 of Cr.P.C, and thereafter issued summons under Section 204 of the Cr.PC - No case is made out to cause interference in impugned orders, hence petitions are devoid of any merits and same stands rejected.
JUDGMENT :
1. Since both the Petitions are arising out of order dated 05th February 2019 passed by the Learned Judicial Magistrate First Class, 4th Court, Pune in CC No. 155/2019 both the Petitions are heard together and being disposed of by this common judgment.
2. These petition takes an exception to the order dated 05.02.2019 of issuance of process passed by the Ld. Judicial Magistrate First Class, 4th Court, Pune in CC No. 155/2019.
3. Advocate Mr. Uday Babade appearing for the Petitioner in Writ Petition No. 2131/2019 submits that Mr. Dhananjay P. Saluke had applied for the mortgage loan with the Respondent No.1 bank by mortgaging his property i.e. Nisarg Executive of whom he is the Proprietor. The said Dhananjay P. Saluke also obtained registration certificate in the name of Nisarg Executive as proprietorship. The said Dhananjay P. Salunke also having Form ST2 issued by Central Board of Excise and Custom, Ministry of Finance Department of Revenue in the name of Nisarg Executive. He is also having license to run the business in the name of Nisarg Executive as a Proprietor issued by Sub Divisional Magistrate Phaltan Sub. Div. Phaltan. Learned counsel submits that Petitioner had never obtained the loan from the Respondent No. 1 Bank and it is Mr. Dhananjay P. Salunke who had obtained mortgage loan in the capacity of proprietor Ms. Nisarg Executive and not by the Petitioner. Petitioner has neither concern with the loan obtained by the said Dhananjay P. Saluke nor he is signatory to the cheque, hence, the order passed by the Trial Court of issuance of process deserves to be quash and set aside.
4. Learned counsel also invites attention of this Court to the grounds taken in the petition and submits that, the property of the Petitioner has been seized under the provisions of SARFEASI Act, 2002 therefore, relying upon the pleadings in the Petition grounds taken therein learned counsel appearing for the Petitioner submits that Petition deserves to be allowed.
5. Advocate Mr. Balwant Salunke appearing for the Petitioner in Writ Petition No. 2450/2019 submits that Petitioner is the borrower who borrowed the loan from the Respondent No. 1 Bank by mortgaging the property. He further submits that, Petitioner orally requested the Respondent Bank that the Petitioner is facing certain financial crisis therefore, he is not in a position to pay the said installments but will clear the same at the earliest meanwhile not to take any coercive action against him. But the Respondent Bank refused to accept the oral request of the Petitioner and issued a Notice under Section 13(2) of the SARFEASI Act demanding loan amount from the petitioner. Once again Respondent bank issued another notice under Section 13(4) of the Act demanding loan amount from the Petitioner. Thereafter, Petitioner immediately in the months of September, 2018 paid an amount of Rs.30,00,000/( Rupees Thirty Lakhs only) in the said loan account.
6. Learned counsel further submits that, inspite of making the payment and showing bonafide intention of making payment the Respondent Bank did not stop here nor they had given further time to the Petitioner for making payment but they proceed further by taking symbolic possession over the properties of the petitioner. Respondent Bank had already initiated action under SEARFEASI Act against the Petitioner and also obtained the symbolic possession over the properties of the Petitioner to secure their loan amount and therefore, the question of depositing the said cheque which was as a security towards the loan amount does not arise. Thereafter, Respondent Bank had also made an application before the Collector to obtain the physical possession of the Petitioners property, and further Respondent No. 1 Bank is also proceeding with the sale of the Petitioner's property. Respondent bank deposited the said cheque which was as a security towards the loan amount for realization, but the said cheque was dishonoured with the banker's memo stating that the
