Point of law : Power is conferred or a duty is imposed by a statute or otherwise and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions.

ORDER :

The prayer in this Crl.M.C. is as follows:-

“………. to allow the Criminal Miscellaneous Case, quash Annexure 1 complaint, Annexure 2 F.I.R and all further proceedings pursuant thereto in Crime No.0919/2022 of Infopark Police Station, Ernakulam District, against the petitioners/accused Nos.1 to 6, so as to secure the ends of justice.”

2. The petitioners, who are the officials of Punjab National Bank Housing Finance Limited, are accused Nos.1 to 6 respectively in the aforementioned F.I.R. They along with the co-accused face allegations under Sections 406, 409, 420, 442 and 120-B read with Section 34 of the Indian Penal Code. The F.I.R was registered based on a complaint filed by respondent No.2.

3. Respondent No.2/the defacto complainant in the F.I.R. purchased an apartment in a project managed by Jain Housing and Constructions Ltd. called “Tuffnel Park”. He purchased the apartment along with his wife after availing a housing loan of Rs.40 lakhs from petitioner No.1 and further paying a sum of Rs.11,13,820/-by himself. A sale deed was executed on 18.12.2015 in favour of the complainant by Jain Housing and Construction Company. The complainant was allotted Flat No.4055 in the apartment complex. Based on the representation of the Builder that occupancy certificate was obtained from Thrikkakkara Municipality the complainant carried out interior works costing around Rs.10 lakhs. In May, 2019, the complainant came to know that the Supreme Court has ordered demolition of another project by name ‘Coral Cove’, a project of the same builder. He got information that the apartment was constructed illegally on a paddy land and the construction was made without getting mandatory consent from the Kerala Pollution Control Board and further that environmental clearance was also not obtained.

3.1. The complainant filed complaints with the Kerala Human Rights Commission. As the building was not numbered and there were issues related to supply of water and electricity the complainant approached the Anti Corruption Bureau of CBI and filed a written complaint against all Public Sector Banks that had approved the project and disbursed loan to the Builder. The complainant also approached the State Vigilance and Anticorruption Bureau alleging collusion of the Builder with the officials of Municipality, Fire Department etc. After that, the complainant filed a complaint before the Judicial First Class Magistrate Court, Kakkanad against the petitioners, the Builder and others involved. The learned Magistrate directed investigation of the offences alleged. The Infopark Police registered the above crime.

4. Heard the learned counsel appearing for the petitioners, the learned Public Prosecutor and the learned counsel appearing for respondent No.2.

5. The learned counsel for the petitioners submitted that the attempt of the defacto complainant is to get away from the liability to pay the loan due to the Punjab National Bank Housing Finance Ltd. The learned counsel for the petitioners contended that the defacto complainant is a defaulter and the complaint which formed the basis of the registration of the FIR was filed when the Bank proceeded under the provisions of the Securitisation And Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). The learned counsel, relying on Priyanka Srivastava and Ors. v. State of U.P. and Ors. (AIR 2015 SC 1758), submitted that the petitioners are entitled to immunity under Section 32 of the SARFAESI Act.

6. The learned counsel for respondent No.2/the defacto complainant contended that the impugned FIR reveals cognizable offences against the petitioners and this Court is not expected to go into the merits of the allegations in the FIR. It is submitted that it would be premature to pronounce the conclusion based on the submissions of the petitioners. The learned counsel for the defacto complainant relied on M/s.Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and Others