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2013 Supreme(Mad) 4159
High Court of Judicature at Madras
S. RAJESWARAN & P.N. PRAKASH, JJ.
Sterling Holiday Resorts [India] Limited & Others
Versus
Murli Khemchand, The Managing Partner M/s. P.M. Associates
Crl.OP. No. 26938 of 2012 & MP. Nos. 1 & 3 of 2012
Decided On : 18-12-2013
For the Petitioners:Ar.L. Sundaresan, SC for M/s. A.L. Gandhimathi, Advocate.
For the Respondents:Shanmugam for M/s. Shanmugam Associates, Advocates.
The complaint must disclose the commission of cognizable offence and not be an abuse of process of Court for the court to proceed with the case.
Headnote:
Quash Petition - Alleged Offences u/s.447 and 380 IPC - Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [SARFEASI Act] - Summary of Acts and Sections: SARFEASI Act, 2002 [Sec. 13(4), Rule 8(1), Rule 9], Indian Penal Code [IPC] [Sec. 447, Sec. 380] - The court analyzed the possession notice by IFCI, orders of the learned Single Judges, and the complainant's documents to determine the possession of the property. The court referred to the judgments in NEPC's case and BHAJAN LAL's case to establish that the complaint did not disclose the commission of cognizable offence and was an abuse of process of Court, leading to the quashing of the proceedings.
Fact of the Case:
The accused were alleged to have committed offences u/s.447 and 380 IPC by removing movables from a property purchased by the complainant under SARFEASI Act. The accused contended that the complainant was not in possession of the property and had sought a mandamus to obtain possession.
Finding of the Court:
The court found that the complaint did not disclose the commission of cognizable offence and was an abuse of process of Court, leading to the quashing of the proceedings.
Issues: The main issue was whether the complaint disclosed the commission of the offences u/s.447 and 380 IPC for the learned Magistrate to proceed with against the accused.
Ratio Decidendi: The court relied on the possession notice by IFCI, orders of the learned Single Judges, and the complainant's documents to determine the possession of the property. The court referred to the judgments in NEPC's case and BHAJAN LAL's case to establish that the complaint did not disclose the commission of cognizable offence and was an abuse of process of Court.
Final Decision: The criminal original petition was allowed, and the proceedings in CC.No.65/2012 on the file of the learned Judicial Magistrate, Ootacamund, initiated against the petitioners were quashed.
P.N. Prakash, J.
1. The petitioners [hereinafter would be referred to as "the accused"] who are the accused in CC.No.65 of 2012 on the file of the learned Judicial Magistrate, Ootacamund are before us to quash the said proceedings initiated against them by way of a private complaint filed by the respondent, M/s.P.M. Associates [hereinafter would be referred to as " the complainant"] for alleged offences u/s.447 and 380 IPC.
2. It would be appropriate to narrate a few facts admitted by both sides in order to appreciate the rival contentions. The accused were the owners of 6.99 acres of land with buildings, furniture and fixtures thereon and were running a Holiday Home in Ooty. They had mortgaged the said property with both movables and immovables with the Industrial Finance Corporation of India Limited [IFCI] for the purpose of raising loan. They had defaulted in repayment of loan. Therefore, IFCI brought their properties to sale in exercise of their powers under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [SARFEASI Act] and the complainant purchased the same sometime in 2011 for a total consideration of Rs.20,00,10,000/-. A Sale Certificate dated 16.09.2011 was executed in favour of the complainant by IFCI. It is the case of the complainant in the private complaint that on 09.12.2011 and 10.12.2011, the accused had removed movables worth Rs.6 crores from the said property in lorries and thereby, they had committed the offences u/s.447 and 380 IPC. It is the further case of the complainant that he lodged a complaint on 15.12.2011 with the D1 Police Station in Ooty, based on which, a First Information Report was registered which later came to be closed on 02.03.2012 as "Mistake of Fact" after due notice to the complainant. Therefore, it is the case of the complainant that he has no other alternative remedy except to prefer a private complaint to prosecute the accused for the aforesaid offences.
3. Per contra, Mr.Ar.L.Sundaresan, learned Senior Counsel appearing for the counsel on record for the accused admitted that the complainant had purchased the property on 16.09.2011 under SARFEASI Act from IFCI and subsequent to that, when the accused paid the mortgage amount to IFCI, they had cancelled the Sale Certificate given to the complainant on 08.02.2012 and also refunded the sum of Rs.20,00,10,000/- to the complainant. Aggrieved by that, the complainant preferred WP.No.4088/2012 before this Court wherein he has stated in no uncertain terms in his affidavit that he was not given possession of the property by IFCI and that the prayer in the writ petition itself was to quash the order of IFCI dated 08.02.2012 and for further directions to hand over possession of the property with the movables to him. While this writ petition was pending, the complainant's complaint dated 15.12.2011 was registered as First Information Report in Cr.No.180/2012 on 20.02.2012 for an offence u/s.380 IPC. Thereafter, on 02.03.2012, the police treated the complaint as "Mistake of Fact" after issuing notice to the complainant. Thereafter, the complainant has filed the present private complaint which has been taken on file by the learned Judicial Magistrate, Ootacamund, in CC.No.65/2012, to quash which they are now before us.
4. Under normal circumstances, this quash petition should have been listed before a learned Single Judge. It appears from the records that the quash petition came up before the Portfolio Judge and during the course of arguments, it was brought to his notice that WP.No.4088/2012 filed by the complainant is pending before the Division Bench and therefore, the learned Single Judge directed that the quash petition may also be heard and disposed of along with WP.No.4088/2012. It was also brought to our notice that WP.No.4088/2012 was finally disposed of on 23.08.2013 by the Division Bench which allowed the prayer of the complainant to set aside the order of cancelling the Sale
