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2010 Supreme(Mad) 4963
Madras High Court
G. RAJASURIA, J.
S. Kasimayan
Versus
The Inspector of Police, CBI-ACB
Crl.O.P.(MD).No.2520 of 2009 and M.P(MD)No.1 of 2009
Decided on : 18-11-2010
For the Petitioner:B. Kumar, Senior Counsel for M/s. Mohammed Asif, Advocate.
For the Respondent: S. Rozario Sundarraj, Special Public Prosecutor for CBI Cases.
Headnote:
The Madras High Court ruled that the act of selling the property in auction sale after fixing the upset price and confirming the same, is a judicial act irrespective of the fact whether the Recovery Officer is nomenclatured or designated, labelled or dubbed as a judge or not. The court held that the Recovery Officer under the Act, is not a judge and none of his functions could be termed as judicial acts or judicial functions. He is only bound to execute the certificate issued by the D.R.T or the Appellate Tribunal in the hierarchy and nothing more. The Judges (Protection) Act, 1985 and the Judicial Officers Protection Act, 1850, are not applicable to him. None of the decisions cited on the side of the petitioner/A.1 could be pressed into service in favour of A.1 because he is not a judicial officer or a judge.
Fact of the Case:
The petitioner, a Recovery Officer under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (R.D.B.F.Act), challenged the registration of an F.I.R against him by the C.B.I without obtaining prior permission from the competent authority. The F.I.R alleged that the petitioner had committed various misdeeds and conspired with others to illegally sell a property involved in the proceedings for a low price.
Finding of the Court:
The court held that the act of selling the property in auction sale after fixing the upset price and confirming the same, is a judicial act irrespective of the fact whether the Recovery Officer is nomenclatured or designated, labelled or dubbed as a judge or not. The court further held that the Recovery Officer under the Act, is not a judge and none of his functions could be termed as judicial acts or judicial functions. He is only bound to execute the certificate issued by the D.R.T or the Appellate Tribunal in the hierarchy and nothing more. The Judges (Protection) Act, 1985 and the Judicial Officers Protection Act, 1850, are not applicable to him. None of the decisions cited on the side of the petitioner/A.1 could be pressed into service in favour of A.1 because he is not a judicial officer or a judge.
Issues: 1. Whether the act of selling the property in auction sale after fixing the upset price and confirming the same, is a judicial act? 2. Whether the Recovery Officer under the R.D.B.F.Act, is a judge and his functions could be termed as judicial acts or judicial functions?
Ratio Decidendi: 1. The court held that the act of selling the property in auction sale after fixing the upset price and confirming the same, is a judicial act irrespective of the fact whether the Recovery Officer is nomenclatured or designated, labelled or dubbed as a judge or not. 2. The court further held that the Recovery Officer under the Act, is not a judge and none of his functions could be termed as judicial acts or judicial functions. He is only bound to execute the certificate issued by the D.R.T or the Appellate Tribunal in the hierarchy and nothing more. The Judges (Protection) Act, 1985 and the Judicial Officers Protection Act, 1850, are not applicable to him. None of the decisions cited on the side of the petitioner/A.1 could be pressed into service in favour of A.1 because he is not a judicial officer or a judge.
Final Decision: The court disposed of the Criminal Original Petition and directed the Sanctioning Authority to consider the facts before according sanction under Section 19 of the P.C.R Act.
Animadverting upon the method and manner in which the F.I.R in R.C.No.15 of 2009 has been registered by C.B.I, this petition is focussed to get it quashed.
2. Heard both sides.
3. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this petition would run thus:
(i) Indubitably and indisputably, the petitioner/A.1 was working as Recovery Officer in Madurai Debts Recovery Tribunal functioning under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as R.D.B.F.Act,) and as against him, the C.B.I. registered the F.I.R. in R.C.No.15 of 2009 and the relevant portion is extracted hereunder for ready reference:
INFORMATION
A reliable information has been received at the office of the Superintendent of Police, CBI,ACB, Chennai alleging that the accused persons A-1 to A-4 and others entered into criminal conspiracy at Madurai during the period from March to June 2008 to cheat the Debt Recovery Tribunal, Government of India and Dhanalakshmi Bank, by under valuing the properties to be auctioned. Consequently, A-1 by abusing his official position, auctioned the properties at the lower rate than the market rate to A-3 to A-4 and thereby caused wrongful loss to property owner as well as to the Dhanalakshmi Bank and corresponding wrongful gain to themselves.
The information revealed that the Debt Recovery Tribunal No.III, Mumbai in O.A.No.2054/2000 vide Order dated 24.08.2004, had ordered to recover an amount of Rs.19,03,118/- with simple interest @ 15% from Shri.M.R.Gopinathan, S/o Shri.M.N.Ramalingam, E-17, Sarvodaya Estte, Chembur,Mumbai,by auctioning the following three properties belonging to him, pledged with Dhanalakshmi Bank, Mumbai, as he failed to repay the loan availed from the said Bank.
(i)Land and building at Plot No.22 in Survey No.4245/20 and 4247/4 at Krishnapuram Colony, II nd Street,Maudrai with an upset price of Rs.6.31 Lakhs.
(ii)Land at Plot No.7 in Survey No.22/2 Bibikulam village, LIC Colony, Madurai with an upset price of Rs.1.50 Lakhs.
(iii)Land and Building at Plot T in Survey No.2738/2A & 7A(New Nos.4245/20 & 4247/4) with an upset price of Rs.8.67 Lakhs.
As the above properties were located at Madurai, the proceedings were transferred to DRT Madurai, for further action.
The information revealed that, in pursuance of the said conspiracy, Shri S.Kasimayan, working as a public servant in the capacity of Recovery Officer, Debt Recovery Tribunal, Madurai has given Tender-cum-Auction Notice in a Tamil and English Newspaper for the said three properties viz., (i)Land and Building at Plot No.22 in Survey No.4245/20 and 4247/4 at Krishnapuram Colony, IInd Street, Madurai with an upset price of Rs.6.31 Lakhs, (ii)Land at Plot No.7 in Survey No.22/2 Bibikulam village, LIC Colony, Madurai with an upset price of Rs.1.50 Lakhs and (iii)Land and building at Plot T in Survey No.2738/2A & 7A(New Nos.4245/20 & 4247/4) with an upset price of Rs.6.87 Lakhs, to be auctioned on 24.04.2008. The information revealed that Shri.S.Kasimayan (A-1), by abusing his official position, fraudulently fixed the upset prices of the above mentioned properties in the year 2008 based on the valuation report of the year 2006.
In pursuance of the said criminal conspiracy, Shri Rajesh Kannan(A-3) only bidder for the properties at Sl.(i) and (iii) above, quoted Rs.1,000/-more than the upset price fixed by A-1 i.e., 6.32 Lakhs and 8.68 Lakhs, respectively. For the property mentioned at Sl.
(ii) above, out of the five bidders, Smt.R.Anitha(A-4) W/o R.Selvaraj(A-2) had quoted Rs.1.55 Lakhs, against the upset price of Rs.1.50 Lakhs, as the highest bidder.
In pursuance of the conspiracy the above properties (i) to(iii) were auctioned on 24.04.2008 by the A-1 by fraudulently quoting the market value for the year 2006 at Rs.6.32 Lakhs, Rs.1.5 Lakhs and 8.68 Lakhs respectively, whereas the assessment value for the above said properties for year 2008 w
