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2019 Supreme(Pat) 1670
IN THE HIGH COURT OF JUDICATURE AT PATNA
SANJAY PRIYA, J.
P.K. Jain, son of Ramesh Chandra Jain - Petitioners
Versus
The State of Bihar and Ors. - Opposite Parties
Criminal Miscellaneous No.3826 of 2015
Decided On : 12-10-2018
Advocate Appeared:
For the Petitioners:Mr. Suresh Pd. Singh, Advocate, Ms. Kumari Rashmi, Advocate
For the Opposite Party :Mr. Shailendra Kumar Singh, APP, Mr. Satyabir Bharti, Advocate
Headnote:
Code of Criminal Procedure, 1973 – Section 482 r/w Section 32 of SARFAESI Act, 2002 and Section 55 (2) of the Transfer of Property Act, 1882 Sections 420/34 the Indian Penal Code, 1860 – Against the order of cognizance – Allegation of Cheating against the Petitioner – Petitioner exercised his power delegated to him as authorized officer under SARFAESI Act, 2002 – informant participated in open tender and being the highest bidder to purchase the property deposited the bid amount with the Branch Manager – Conformant received the sale certificate issued by Petitioner who was authorized officer under the Act and delivery of possession already perfected to the informant – Petitioner being Nodal/Authorized officer of the Bank auction sold the property mortgaged to the Bank for recovery of due amount of loan in discharge of his official duty – No ingredient of cheating or inducement on the part of the petitioner as alleged by the Informant in the written report – Order passed by the learned court below suffers from illegality – Continuance of Criminal Proceeding be abuse of the process of law and harassment to Petitioner – Entire Criminal Proceeding quashed. (Paras 2, 4, 6, 9, to 11 & 14 to 18)
Transfer of Propery Act, – Section 55(5)(c) – Ownership of the property passed to the buyer – Buyer will bear any loss arising from the destruction, injury or decrease in value of the property not caused by the seller. (Para 14)
2017(2) PLJR 332 – Relied upon.
This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the order dated 14.11.2014 passed by the Judicial Magistrate, 1st class, Patna, in Pirbahore P.S. Case No.478 of 2013 by which the learned Magistrate has taken cognizance against the Petitioner for the offence under Section(s) 420/34 Indian Penal Code.
2. The prosecution case as per written report filed by the Informant on 02.11.2013 is that there was an auction notice published on 13.03.2013 by the Punjab National Bank for auctioning some properties. The Informant contacted the Petitioner as well as Branch Manager, Mr. S. K. Sharma and partic ipated in “e-auction” for the property mortgaged with Punjab National Bank, Muradpur Branch, Patna, situated in Chandpur Kumharar, P.S.-Kadamkuan, and being the highest bidder his bid was accepted. Accordingly, he made payment of Rs.35,50,000/- through Bank Draft to Muradpur Branch Office of Punjab National Bank. Sale Certificate was issued in favour of Informant by the Bank. It is alleged that Informant later on came to know that land was in prohibited area. There is no ban on sale and purchase of property but any construction cannot be made without prior permission of Archeological Survey of India. The Informant has made allegation of cheating against the Petitioner.
3. The police investigated the case and submitted charge-sheet against the Petitioner for the offence under Section(s) 420/34 Indian Penal Code and cognizance has been taken by the learned Court below for the aforesaid offence by the impugned order.
4. Counsel for the Petitioner submits that this Petitioner at the relevant time was Nodal Officer in Punjab National Bank in Circle Office, R Block, and at present, he is Chief Managercum- Authorized Officer, Punjab National Bank, Circle Office, R-Block, Patna.
5. The Petitioner earlier moved this Hon’ble Court in Cr. Misc. No.8399 of 2014, which was disposed off by order dated 05.09.2014 with observation that Petitioner happens to be Authorized Officer of the Bank at Circle Office and under Section 32 of the SARFAESI Act, 2002, immunity has been granted to him. His application was disposed off with direction to the Investigating Officer to consider the aforesaid aspect and conclude the investigation.
6. Counsel for the Petitioner submits that petitioner was discharging his official duty under the Act for and on behalf of the Bank. There is no substance of allegation under Section 420 Indian Penal Code. Auction notice was published with all relevant information about the property. The Informant after examining the same made full fledged enquiry about the said property and participated in bid along with other bidders, who were interested in the property. The Informant being the highest bidder was allotted the property and he got the Sale Certificate and also obtained delivery of possession. There is neither any element of impersonation nor any cheating in such transaction. The property, in question, was auctioned “As Is Where Is Basis”. The Bank issued very notice for auction stating therein the property, in question, was a mortgaged property of the Bank and to be sold under SARFAESI Act, 2002 (No.54 of 2002). The property was auctioned without inducing or pressurizing or alluring anyone to buy the said property. There was neither any ban by Archeological Survey of India for sale and purchase of any property nor the petitioner was going to be benefited in any manner as alleged. The Informant has purchased the property after considering every pros and cons without having been induced by any one to purchase the property. Petitioner has not done any act under personal capacity. He has acted under official capacity under limits of law. He has immunity from any type of prosecution as per Section 32 of the SARFAESI Act, 2002. The very institution of the case is bad in law and criminal prosecution initiated against the petitioner is wholly illegal.
7. Counsel for the petitioner further
