Advocates:
['SANDEEP SINHA', '', 'RUPESH SHRIVASTAVA', 'VIJAY KUMAR SAHU', 'A G', '', 'SACHIN SINGH RAJPUT', 'ASSTT S G', 'Sharad Mishra']

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

WPC No. 1228 of 2021

Pappu Vijay Kumar S/o R.P. Annaji Rao Aged About 48 Years R/o

H.No. C - 48, Nature City, Phase - 2, Sakti, Tehsil and District

Bilaspur Chhattisgarh. ---- Petitioner

Versus

1. State of Chhattisgarh through its Secretary, Ministry of Law,

Mantralay, New Raipur, District : Raipur, Chhattisgarh

2. Punjab National Bank Branch Vayapar Vihar, Near Lakme Beauty

Parlor, Link Road, Bilaspur, C.G. 495001 through its Branch

Manager., District : Bilaspur, Chhattisgarh

3. Debt Recovery Tribunal Through its Registrar 797-2, Shanty Kunj,

South Civil Lines, Jabalpur - 482001, District : Jabalpur, Madhya

Pradesh

4. Union of India Through Its Secretary, Ministry of Finance, New Delhi.,

District : New Delhi, Delhi --- Respondents

For the applicant

: Mr. Vijay Kumar Sahu, Advocate

For the State

: Mr. Gagan Tiwari, Dy. Govt. Advocate

For respondent No.2

: Mr. Sachin Singh Rajput, Advocate

for respondent No.4

: Mr. Tushar Diwan, Advocate, on behalf of

Mr. Ramakant Mishra, Asst. S.G.

Hon'ble Shri Justice Goutam Bhaduri

Order on Board

02

.03.2021

1. In this writ petition filed under Article 226 of the Constitution

of India, the petitioner has prayed for issuance of a direction

or order in the nature of mandamus to quash the

proceedings initiated by respondent No.2 Bank under section

138 of the Negotiable Instruments Act.

2. Learned counsel for the petitioner would submit that on the

basis of fraud committed , certain loan transaction were

availed in the name of petitioner. Thereafter for the alleged

default, the petition was filed by respondent no.2 before the

DRT. At the same time, a remedy of proceeding u/s 138 of

N.I.Act is being availed by the Bank, therefore, there cannot

be two proceeding for recovery of loan amount. He would

further submit that the proceedings u/s 138 is based on the

alleged bounce of the cheque, therefore, eventually it would

lead to the recovery.

3. Per contra, learned counsel for respondent Bank would

submit that the petitioner has not made it clear as to

whether appearance by him is made before the Court

wherein the petition u/s 138 of N.I. Act is pending. He further

submits that the defence raised by the petitioner can be

considered before the Criminal court and there cannot be an

order for roving enquiry by this Court. He refers to (2019)

3 SCC 620 and would submit that the doctrine of election

cannot be applied as the criminal case and recovery

proceedings are on different footing.

4. A perusal of the documents shows that a proceeding before

the DRT has been commenced by the Bank vide Annexure P-

10. The petitioner alleged that on the same facts, the

recovery proceeding for dishonour of cheque has been

commenced by the Bank, which also pertains to recovery.

The Supreme Court in (2019) 3 SCC 620 while applying

the analogy has held that the doctrine of election would not

be applicable in the cases of like nature. Further more, the

supreme Court in (2020) 4 SCC 440 has held that recovery

under SARFAESI Act is a complete Code and any proceeding

filed before it can be dealt with by DRT. Here before this

Court it is not clear as to whether the petitioner has made

appearance in the criminal complaint which is pending

wherein it is alleged that cheque issued by the petitioner

was bounced. Annexure P-9 would show that it is a status

report u/s 138 of N.I. Act and it is only for appearance of the

accused petitioner. It is for the petitioner to explain for what

amount and for which reason, the cheques were issued by

him. The defence of the petitioner that the loan was availed

on the basis of forged document cannot be accepted and no

order for roving enquiry can be passed by this Court.