Priya Elizabeth and Mathew C. Paul v. Bhaskaran and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 28TH DAY OF MAY 2019 / 7TH JYAISHTA, 1941** ## **Crl.MC.No. 4677 of 2013** **CC NO.1235/2013 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, PATTAMBI** ## **PETITIONERS/ACCUSED NOS.1 & 2:** **1 PRIYA ELIZABETH, PRESENTLY WORKING AS SENIOR MANAGER(LEGAL), THE SOUTH INDIAN BANK LTD, MUVATTUPUZHA REGIONAL OFFICE,1ST FLOOR OF KAVILKUNNEL CHAMBERS, T.B JUNCTION, MUVATTUPUZHA, PIN-686 661.** **2 MATHEW C. PAUL, PRESENTLY WORKING AS CHIEF MANAGER, THE SOUTH INDIAN BANK LTD., AHMEDABAD REGIONAL OFFICE, SAKAR-VII,4TH FLOOR, NEHRU BRIDGE CORNER, ASHRAM ROAD, AHMEDABAD-380 009** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.M.REVIKRISHNAN SRI.VIPIN NARAYAN** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 BHASKARAN, S/O.UMMATTU AMMA, ALUVA VEETTIL, ALOOR DESOM, PATTITHARA AMSOM, OTTAPALAM TALUK** **2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM - 682 031** **SRI. M. S. BREEZ SR. PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No. 4677 of 2013 2 ## **ORDER** The petitioners are senior officers of the South Indian Bank Ltd., Muvattupuzha. The de facto complainant was a customer of the Bank and is the chairman of a company by name “Vibha Chocolate”. He availed a loan from the Bank and committed default. Proceedings under the Securitisation And Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002 were initiated and symbolic possession was taken. The property was brought up for sale and for affixing the notice, the petitioners, as the officers of the Bank went to the property which is the secured asset. 2. The allegation is that when the de facto complainant questioned the petitioners as to why they were affixing a notice on the wall of his house, his hands were twisted by the 1[st] accused and the de facto complainant was pushed down. When he tried to stand up, the 2[nd] petitioner is alleged to have slapped him on his face. Hearing the hue and cry, his tenants came to his rescue. Though he approached the police and lodged a complaint, no crime was registered. Later, he approached the learned Magistrate and lodged a complaint. His statement was recorded and cognizance was taken by the court below. Crl.MC.No. 4677 of 2013 3 3. The learned counsel appearing for the petitioners submitted that the initiation of criminal proceedings against the petitioners is a clear abuse of process. No incident of the nature alleged had taken place. When default was committed Annexure-C notice was issued and later proceedings under the SARFAESI Act were initiated. It is in order to intimidate the officers of the Bank that a false complaint was lodged against them. 4. Notice was issued to the complainant. Though the same was served, the party respondent has not cared to enter appearance. 5. I have considered the submissions advanced and have gone through the records made available. Annexure-B is the agreement of guarantee executed by the de facto complainant in favour of the Bank from which it is evident that credit facilities to the tune of Rs.397 lakhs were advanced by the South Indian Bank to the Company. The account was declared as non-performing and proceedings under the SARFAESI Act were initiated. Later symbolic possession was taken and as the party respondent was not able to clear off the dues, the property was put up for sale in public auction. The specific allegation is that the 1[st] petitioner, a lady, asked him to acknowledge the affixing of the sale notice on his premises. The petitioners had no reason to enter Crl.MC.No. 4677 of 2013 4 his house or to forcibly obtain his signature. The statement of the 1[st] respondent that he was pushed down and assaulted by the 1[st] petitioner, who is a lady, is clearly far-fetched and unbelievable. From the sequence of events, it is evident that the criminal complaint was lodged with malicious motive for wreaking vengeance on the petitioners herein and with a view to spite them due to private and personal grudge. 6. In **State of Haryana and Ors. v. Bhajan Lal and Ors.** [1992 Supp (1) SCC 335], the Apex Court Court has given clear indications of the categories of cases by way of illustration, wherein the powers under Article 226 of the Constitution or under Section 482 of the Code could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. They are: “(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any Crl.MC.No. 4677 of 2013 5 ## offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” Clauses (5) and (7) would squarely apply in the instant case. ## 7. In **Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Angre and Ors.** , [(1988) 1 SCC 692], the Hon’ble Supreme Court has observed as follows: “7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Crl.MC.No. 4677 of 2013 6 court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.” ## 8. Further in **Janata Dal v. H.S. Chowdhary and Ors.** , ## [(1992) 4 SCC 305], the Apex Court has observed as follows: “132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court Under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles.” Crl.MC.No. 4677 of 2013 7 9. The entire law on the subjects was reviewed by a three Judges Bench of the Hon’ble Supreme Court in **Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors.** , [(2007) 12 SCC 1] and in **R. Kalyani v. Janak C. Mehta and Ors.** [(2009) 1 SCC 516] as well. 10. Having considered the entire facts and in the light of the above precedents, I am of the view that this is one of those rare and exceptional cases, wherein this Court will be justified in terminating the criminal proceedings by invoking the powers under Section 482 of the Code. In the result, this petition will stand allowed. Annexure-A complaint and all further proceedings pursuant thereto against the petitioners now pending as C.C. No.1235 of 2013 on the files of the Judicial Magistrate of First Class Magistrate, Pattambi are quashed. ## **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** IAP Crl.MC.No. 4677 of 2013 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE COMPLAINT IN C.C NO 1235 OF 2013 OF THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE, PATTAMBI ALONG WITH THE SWORN STATEMENT OF THE COMPLAINANT** **ANNEXURE B TRUE COPY OF THE GUARANTEE AGREEMENT ENTERED INTO BY THE COMPLAINANT WITH THE SOUTH INDIAN BANK** **ANNEXURE C TRUE COPY OF THE NOTICE CAUSED TO BE ISSUED BY THE BANK TO THE COMPLAINANT UNDER THE SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITIES INTERESTS ACT SEEKING RECOVERY OF THE LOAN AMOUNT** ## **RESPONDENTS' EXHIBITS:** NIL