Deviation from loan agreements and misappropriation of loan funds constitute a cognizable offence of criminal breach of trust, warranting the registration of an FIR.

ORDER

Subramonium Prasad, J. - The present petition is filed under Section 482 CrPC praying for setting aside the order dated 22.01.2021 passed by the Learned Principal District & Sessions Judge, Patiala House in Criminal Revision No. 369/2020 whereby, the Ld. PDJ dismissed the Revision and upheld order dated 10.11.2020 passed by the Chief Metropolitan Magistrate which had rejected the application for registration of an FIR under Section 156(3) CrPC.

2. The Petitioner herein is a Non-Banking Finance Company(NBFC), incorporated under the Companies Act, 1956 and registered with the Reserve Bank of India as an institution providing financial assistance. The Respondent No. 2 is Sunil Sharma, Director of M/s Benlon India Ltd. The facts leading upto the present case are given as hereunder-

i. Mr. Balbir Sharma, Mrs. Sudesh Sharma and Mr. Balbir Sharma in their capacity as Directors of M/s Benlon India Ltd. approached the Petitioner in October 2014 for grant of a loan of Rs. 12.25 Crores stating that their company required to purchase 18 winding machines with standard accessories. Three agreements, namely the Master Facilities Agreement, Supplementary Agreement and Personal Guarantees were executed between both the parties. The loan was sanctioned by the Petitioner vide sanction letter reference No. HFCL/MTL/1007/2014 dated 24.10.2014.

ii. Mr. Balbir Sharma, Mrs. Sudesh Sharma and Mr. Sunil Sharma in their capacity as Directors of M/s Benlon India Ltd. again approached the Petitioner in December 2014 for the grant of a loan of Rs. 10 Crores stating that their company required to purchase 12 sets of Spinning (Winding)Machine, Model- TH-9C. Three agreements, namely the Master Facilities Agreement, Supplementary Agreement and Personal Guarantees were executed between both the parties. The loan was sanctioned by the Petitioner vide sanction letter reference No. HFCL/MME/01-07/20145 dated 06.02.2015.

iii. Mr. Balbir Sharma, Mrs. Sudesh Sharma and Mr. Sunil Sharma in their capacity as Directors of M/s Benlon India Ltd. again approached the Petitioner in October 2014 for the grant of a loan of Rs.15 Crores stating that their company required to purchase further equipment i.e. 6 Chennile Machines- PAFA SPIRAFIL 2FR (2) 1 PET FDY Production Spinning Line with JWA 15/1500.Three agreements, namely the Master Facilities Agreement, Supplementary Agreement and Personal Guarantees were executed between both the parties. The loan was sanctioned by the Petitioner vide sanction letter reference No. HFCL/MME/02-04/2016 dated 13.2.2016.

iv. The Respondent No. 2, Mr. Balbir Sharma and Mrs. Sudesh Sharma agreed to create a first pari passu charge on fixed assets in favour of the Petitioner on the land and building at Plot No. 122, 123, 124, 506, 508, 509, 510 HSIDC Industrial Area, Kundli, Sonipat, Haryana. Further, it was agreed that Mr. Balbir Sharma will create an equitable charge on a property situated at Punjabi Bagh in favour of the Petitioner and a Memorandum of Deposit of Title Deed dated 13.2.2016 was executed in the Petitioner's favour.

v. The Respondents made payments of their loan installments to the Petitioner until May 2018 when the Respondents started defaulting on their payments. It is indicated that the Respondents' business/company suffered a huge financial loss in a fire at their official premises and they were not in a position to repay their debts/liabilities. The company was liquidated and proceedings were initiated before the NCLT and a liquidator was appointed. The Petitioner also filed their claim before the NCLT and the Committee of Creditors. The Petitioner took possession of the Flat at Punjabi Bagh that was mortgaged in their favour. The Petitioner further invoked the arbitration clause in the agreement against the Respondents on 11.1.2019. Respondent No. 2 filed a securitization application (No.4/2019) before the Debt Recovery Tribunal which is pending.

vi. The Petitioner on 13.12.2018 filed a complaint to Deputy Commissioner of Poli