PRABHAKAR Vs. K. MANJUNATH IRKAL

JUDGEMENT

(1.) The petitioners in Crl.P. No.8207/2013 were arrayed as Accused Nos.1 to 4 and 7 respectively wherein the petitioners in Crl.P. No.100106/2014 are arrayed as Accused Nos.5 and 6 in C.C. No.2854/2013 on the file of the JMFC II Court at Hubli. The petitioners have sought for quashing of the entire proceedings in the said C.C. No.2854/2013 wherein the learned Magistrate has taken cognizance against them for the offences under Sections 120(B), 204, 420, 465, 468, 471 r/w 34 of I.P.C.

(2.) The brief factual matrix which are undisputed between the parties are that, the respondent No.1 herein is the person who has taken loan from the Vijaya Bank at Broadway Branch, Hubli in the year 1979 and 1981. In order to recover the loan due amount, the Bank has filed suits in O.S. No.38/1985 and 213/1986. The said suits came to be decreed vide decree dated 22.07.1994 for recovery of the suit claims along with 12% interest. It is also undisputed fact that the final decree proceedings were initiated before the Civil Court. After the constitution of the Debt Recovery Tribunal (DRT), the said final decree proceedings were transferred to the D.R.T. in the year 1999-2001. It is also not disputed that the Debt Recovery Tribunal has issued recovery certificates after coming into force of SARFESI Act. It is the case of the petitioners that a notice was issued on 10.08.2002 to the respondent No.1 and symbolic possession was taken pertaining to the disputed property and even a sale notice was issued on 25.07.2004. It is the case of the petitioners that respondent No.1 did not turn up to pay the dues in spite of repeated requests and notice issued to him on 25.07.2004. Therefore, the Bank Authorities have brought the property for auction sale excluding the property leased to HPCL. The reserved rate of the said property was fixed at Rs.75.00 lakhs and add and the said property was auctioned at a highest bit rate of Rs.77.22 lakhs. Even though the auction was conducted, it is the contention of the petitioners that in order to provide a final chance to the complainant (respondent No.1 herein) and on humanitarian grounds though not there was any legal obligation to issue any notice, Bank issued a notice requesting the respondent No.1 before confirmation of the sale to pay an amount of Rs.77.22 lakhs within seven days from the date of service of said notice. According to the petitioners, though the said notice was served and original notice was received by the respondent No.1 he did not care to approach the Bank Authority to discharge the loan in order to save his auctioned property. Therefore, they have confirmed the sale and sale certificates were issued on 22.09.2008 in favour of the auction purchasers who are arrayed as accused Nos.5 and 6 in the case.

(3.) It is the further contention of the petitioners that the respondent No.1 has also filed several suits i.e. O.S. No.96/2009, 25/2010 and 237/2010 making allegations against the petitioners that he has not received any notice from the Bank. However, the notice was created by the Bank authorities as if it was served on the 1st respondent by forging the signature of the respondent No.1, but for the reasons best known to the 1st respondent those suits were withdrawn. According to the learned Counsel for the 1st respondent, it is stated that in order to clear off the loan amounts so far as the other properties are concerned, the Bank authorities have put a rider to the 1st respondent to withdraw all the suits so that they can enter into a compromise so far as the other debts are concerned. Therefore, he was forced to withdraw the same. However, he came to know about the forgery of the documents subsequently. Therefore, he filed one more suit in O.S. No.13/2012 wherein he has sought for declaration of the sale certificate issued in favour of accused Nos.5 and 6 as illegal and not binding on the 1st respondent and for setting aside the entire sale proceedings and also pleaded that those sale transactions were made in collusion amongst the petitioners and also by forging the signature of the 1st respondent. In fact, these are all the proceedings pending before the Civil Court are not at all disputed by either of the parties. Again, having filed the suit for the same relief, the 1st respondent has also filed a private complaint in P.C. No.35/2012 making allegations that the property which was sold by the Bank in collusion with the petitioners amongst themselves though the property worth more than rupees one crore 24 lakhs. The sale transaction was shown to have been held for Rs.77.22 lakhs. The said property was alleged to have been sold for a throwaway price. It is also contended by the respondent No.1that by means of forging his signature on the letter dated 23.08.2008 the Bank authorities have concocted all the subsequent documents in order to sell the said property in favour accused Nos.5 and 6. It is also alleged that the conduct of the petitioners that though according to law the auction purchasers have to pay 25% of the bid amount immediately after the auction sale. But, the said amount was not deposited, apart from that, the petitioners have also permitted the purchasers accused Nos.5 and 6 to pay the said amount of bid amount by way of installments. These are all the conducts alleged against the petitioners by the respondent No.1 to show that the Bank Officials have colluded with each other in order to defeat the rights of the respondent No.1 and if possible to defraud him from getting his property back or getting the market value to his property. This is the sum and substance of the rival contentions of the parties. After the complaint referred to the jurisdictional Police i.e. Hubli Sub-Urban Police, the Police have registered the case in Crime No.269/2013 and investigated the matter and finally submitted the charge sheet.