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2020 Supreme(UK) 600
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Ravindra Maithani
Criminal Miscellaneous Application No. 712 of 2017
SANJEEV TIWARI – Applicant
Versus
STATE OF UTTARAKHAND & ORS. – Respondent
Decided on : 05.06.2020
For the Applicant :Mr. Arvind Vashistha, Sr. Adv. Holding Brief of Mr. Vivek Pathak, Advocate
For the Respondent: Mr. S.S. Adhikari, AGA, along with Mr. P.S. Uniyal, Brief Holder, Mr. S.K. Jain, Sr. Adv. assisted by Mr. Siddhartha Jain, Adv. and Mr. Pankaj Miglani, Adv.
Headnote:
Criminal Procedure Code, 1973, Secs. 482 and 156(3) – Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, Secs. 13 and 17 – Quashing and setting aside of order passed by CJM – Application filed by petitioner under Section 156(3) of the code rejected – And confirmed in revision – Validity of – Infact application under Section 156(3) of code filed by petitioner does not disclose any cognizable offence – It definitely appears to have been moved by petitioner to pressurize Bank so that they may, under fear of criminal prosecution, settle case with petitioner on his terms – Courts below did not commit any error in rejecting application under Section 156(3) of Code – Petition dismissed.
(Paras 17, 18 and 19)
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JUDGMENT
Hon'ble Ravindra Maithani, J.
The instant petition under Section 482 of the Code of Criminal Procedure, 1973 (for short “the Code") has been filed to quash and set aside the order dated 26.11.2016, passed in Misc. Application No. 468 of 2016, Sanjeev Tiwari Vs. K.S. Rana and others, by the court of learned Chief Judicial Magistrate, Udham Singh Nagar (for short “the Case") as well as judgment and order dated 16.05.2017, passed in Criminal Revision No. 292 of 2016, Sanjeev Tiwari Vs. State of Uttarakhand and others (for short “the revision"). By the impugned order dated 26.11.2016, an application filed by the petitioner under Section 156 (3) of the Code has been rejected and this order has been confirmed in the revision.
2. Facts necessary to resolve the controversy are briefly stated as hereunder:-
The petitioner filed an application under Section 156 (3) of the Code for investigation. Petitioner is an Executive/Manager of M/s General Power Company Limited (for short “the company"). According to the application, the company took a loan from Punjab National Bank, Branch Pilikothi, Khurja, Bulandshahr (U.P.) (for short “the Bank"). The Bank suddenly closed the credit limit of the company. Because of it, the company had to incur huge loss and the loan could not be repaid. The Bank proceeded under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short “the SARFAESI Act").
On 12.01.2015, at 02:00 PM the officers of the Bank visited the company premises without prior information and removed every person from the premises & locked it. The company informed the Police about it on 13.01.2015, but no action was taken. Subsequently, the company came to know that the Bank Officers were removing articles from the plant of the company. Therefore, on 03.09.2015, a mail was sent to the Bank. On 18.09.2015, the Bank replied that it never took possession of the company premises.
According to the application, thereafter a petition was filed in the Court and finally on 08.04.2016 by the order of the Court lock was opened and inventory prepared. Many items were found missing from the plant. A report was given to the Police, but it was not lodged.
3. It is this application, which was rejected by the order dated 26.11.2016 passed in the case. Learned court below dismissed the application mainly on the ground that since, the action was taken under the SARFAESI Act, criminal action may not be taken in the matter. It is this order, which has been confirmed in the revision. Aggrieved, the instant petition.
4. Learned counsel for the petitioner submits that due to non-cooperation of the Bank the company could not repay the loan and proceedings under the SARFAESI Act were initiated by the Bank. Bank issued notice for auction of the company's property. In those notices Bank had categorically stated that the Bank had taken possession of the assets of the company. When the petitioner filed a writ petition in the court, by the order of the court, the lock was opened and the articles were then found missing. Reference has been made to auction notice issued by the Bank as well as order dated 30.03.2016 passed by this Court in Writ Petition No. 2505 of 2015 (M/S), M/s General Power Company Pvt. Ltd Vs. State of Uttarakhand and others (for short “the writ petition").
5. Learned Senior counsel for the petitioner would submit that perusal of the contents of the application under Section 156 (3) of the Code discloses commission of cognizable offences. Therefore, an order for investigation ought to have been passed.
6. On the other hand, learned counsel appearing for respondent nos. 2, 3 and 5 would submit that the Bank never took physical possession of the property of the company. Symbolic possession was taken. It is argued that for proceeding under Section 13, of the SARFAESI Act, it is not required that physical possession be taken. Referring to order dated 30.03.2016 passed in the writ petition it
