The court quashed proceedings under Section 340 CrPC, ruling that allegations of forgery lacked merit and constituted an abuse of process due to pending appeal in Debt Recovery Appellate Tribunal.

JUDGMENT :

AMIT MAHAJAN, J.

1. The present petition is filed under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of the criminal complaint under Section 340 of the Code of Criminal Procedure, 1973 (‘CrPC’) read with Sections 405 /409/219/420/467/471/477-A/34/120B of the Indian Penal Code, 1860 (‘ IPC ’) read with Section 29 of the SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT , 2002 (‘SARFAESI Act’) filed by the respondent and pending before the learned Magistrate, Tis Hazari Courts, Delhi in CC No. 820/2006.

2. The brief facts of the case are as follows:

i. It is alleged that the petitioner bank and certain employees conspired to cheat the respondent by dishonestly misappropriating movable and immovable properties of the complainant and thus hatched a conspiracy to falsely implicate the respondent and three companies of the respondent, namely, M/s Gambro Nexim (India) Medical Ltd., Nexim Export Pvt. Ltd. and Rexima Export Pvt. Ltd., before the learned Debt Recovery Tribunal-II, New Delhi.

ii. It is alleged that the petitioner bank, in the year 1996, instituted three Original Applications before the learned Debt Recovery Tribunal-II, New Delhi against the Companies of the respondent and its Directors seeking recovery of alleged outstanding dues. In those proceedings, the Bank alleged that property bearing No. F-23, Green Park Main, New Delhi (hereinafter referred to as “the Subject Property”) stood mortgaged with the Bank.

iii. It is alleged that subsequently, in the year 2006, the petitioner bank, vide notice dated 04.04.2006, purported to invoke the provisions of Section 13(2) of the SARFAESI Act, thereby initiating measures for enforcement of its alleged security interest in respect of the subject property.

iv. It is alleged that thereafter, in 2007, the petitioner bank proceeded to file an application under Section 14 of the SARFAESI Act before the learned Magistrate, wherein it claimed the status of a secured creditor and sought appointment of a court receiver for taking possession of the subject property.

v. It is alleged that the petitioner bank fraudulently obtained an order from the learned Magistrate to have police protection while taking possession of the subject property by invoking Section 13(4) of the SARFAESI Act, knowing fully well that the respondent never created equitable mortgage over the said property for the alleged debt which was the subject matter of the proceedings before the learned Debt Recovery Tribunal- II, New Delhi in O.A. 895/96; 870/96 and 871/96.

vi. It is alleged that in order to support their case, the petitioner bank also forged the valuable security of the complainant, namely the alleged equitable mortgage of the immovable property at F-23, Green Park, New Delhi by fabricating the alleged document of creating "Extension of Equitable Mortgage" and alleged "Acknowledgement of Debt" true copies of which were filed by the accused persons before the learned Debt Recovery Tribunal-II, New Delhi in O.A. 895/96; 870/96 and 871/96.

vii. It is alleged that the Notice dated 04.04.2006 and the follow up Notices sent by the petitioner bank to the respondent were contrary to the provisions of SARFAESI Act and in violation of settled law, that no bank can initiate proceedings simultaneously under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and SARFAESI Act in respect of the same