IMPORTANT POINT
Bank officers are protected from criminal liability for actions taken in good faith under the SARFAESI Act, specifically under Section 32, which applies to statutory actions related to the enforcement of security interests.

JUDGMENT :

Vikram D. Chauhan, J.

1. Heard learned counsel for the applicants and learned AGA for the State.

1-A. No one has appeared on behalf of opposite party no. 2. Previously on 05.03.2024, the opposite party no. 2 was proceeded ex-parte.

2. This application under Section 482 Cr.P.C. has been filed by the applicants for quashing the entire proceedings including the summoning order dated 09.08.2018 passed by Additional Chief Judicial Magistrate, IXth, Varanasi in Complaint Case No. 1865 of 2018 (Mohd. Akhlaq Khan vs. Vinod Kumar) under Sections 417, 504, 506 IPC, P.S. Cantt, District Varanasi.

3. It is submitted by learned counsel for the applicant that applicant is Branch Manager of Allahabad Bank. The proceedings against borrower was issued under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'SARFAESI Act') by the Bank and thereafter the symbolic possession of property in question was taken on 30.07.2012. It is further submitted that thereafter the property in question was put to auction in terms of Section 13(4) of SARFAESI Act and date of auction was fixed as 30.04.2016.

4. Learned counsel for the applicant submits that complainant is auction purchaser and the complaint is filed with allegation that the applicant being the Branch Manager has represented the auction purchaser that the property of the borrower was taken possession by the bank and as such the complainant participated in the auction proceedings and deposited the auction sale consideration. Subsequently, he found that the bank was not in possession of the property in question as the bank has applied before the District Magistrate for taking physical possession of the property in question in terms of Section 14 of the SARFAESI Act.

5. Learned counsel for the applicant submits that act of the applicant was statutory in nature and is protected by Section 32 of SARFAESI Act as the same was done in good faith. It is further submitted by learned counsel for the applicant that the possession of the property in question was already taken on 30.07.2012 and the property was being sold on as is where is basis in case of any dispute the auction purchaser/complainant would have remedy under provisions of SARFAESI Act. He submits that the present criminal proceedings against applicant under Sections 417, 504, 506 IPC are not tenable.

6. In the present case, it is to be seen that the Allahabad Bank, who was the secured creditor has initiated proceeding under the SARFAESI Act against the borrower and in this respect symbolic possession of the property was taken on 30.07.2012 in terms of Section 13(4) of the SARFAESI Act. Once the possession is taken, bank thereafter applied under Section 14 of the SARFAESI Act for execution of the possession proceedings for taking actual physical possession. Once an application under Section 14 of the SARFAESI Act is filed the same would relate to the provisions of Section 13(4) of the SARFAESI Act and actual possession would in no manner effect the taking of possession in terms of Section 13(4) by way of symbolic possession. The symbolic possession itself is the possession under law and as such once the bank has taken possession of the property in question in the year 2012 itself and the auction notice was issued on 18.03.2016 in respect of the auction to be held on 30.04.2016, the borrower was well aware of the fact that the bank has taken possession in terms of Section 13(4) of the SARFAESI Act as the auction notice itself stated the aforesaid fact in para-2, which is quoted herein below:

"And WHEREAS the borrower having failed to repay the amount, and hence, the undersigned, in exercise of powers conferred U/S 13(4) of the said Act read with Rule 8 of the Rules taken over possession of the property/properties, (hereinafter referred as the said properties) more fully described herein below on 30/07/2012."

7. Once the bank has declared in the auction notice that they are taken posses