STANDARD CHARTERED BANK Vs. YOGESH SHARMA

JUDGEMENT

(1.) The appellant bank has impugned the order passed by the learned Single Judge dated 9.12.2005. The present litigation is a manifestation of strong arm tactics prevailing in India today with regard to the role of banks like the appellant and the method of recovery of dues. It seems that the normal remedy through process of law seems inappropriate to the appellant thereby using extra judicial methods for recovery of the dues. To say the least, if it is allowed to happen, people's faith in the rule of law will be shaken and more and more people will start using mafia power to achieve their objective. Whether it is a healthy sign for a growing economy like ours is a question which we have to answer in this appeal.

(2.) Mr.Sandeep Sethi, learned counsel for the appellant bank has vehemently contended that the writ petition filed by the respondent before the learned Single Judge was not maintainable. In support of his contention, learned counsel for the appellant has relied upon All India Institute Of Medical Sciences Employees' Union Vs. Union of India and Ors. 1997 SCC (Crl) 303 and has contended that the respondent was not entitled to approach the High Court by filing a writ petition and seeking a direction to conduct an investigation. To somewhat similar effect he has also cited a Division Bench judgment of this Court Parivartan and Anr. Vs. MCD and Ors. 2006 (IV) AD (Delhi) 634 and has contended that if an FIR has been registered, then, the only remedy is to approach the Magistrate concerned under Section 156 (3) of Cr.P.C. and writ petition is not maintainable. Learned counsel for the appellant has also relied upon Gangadhar Janardhan Mhatre Vs. State of Maharashtra and Ors. JT 2004 (8) SC 208, wherein it was stated that when no action is taken by the police, the complainant has got power under Section 190 read with Section 200 of the Code of Criminal Procedure. On the basis of the aforesaid observation of the Supreme Court, the learned counsel for the appellant has contended that the learned Single Judge ought not to have exercised its jurisdiction in entertaining the writ petition as writ petition was not maintainable. It was also contended by Mr.Sethi that the impugned order amounts to interference in the investigation and writ court should refrain from interfering in the investigation and for this proposition he has referred to Director CBI Vs. Niyamavedi 1995 (3) SCC 601. To the similar effect he has also cited M.C. Abraham and Anr. Vs. State of Maharashtra 2003 SCC (Crl.) 628. It was also contended that it was not open to the writ court to direct and suggest a different course of investigation to the police.

(3.) On the other hand, Mr.Arvind Nigam, learned counsel for the respondent has contended that the brother of respondent-Yogesh Sharma was Rakesh Sharma who had held credit cards from the appellant bank. He was a journalist. On 7.10.2004 a report regarding his missing from the house was lodged with the police. In the intervening night of 18th-19th October, 2004 he was found dead in Mumbai. After the report was registered with the police, the police wanted the respondent to find out from the bankers of the deceased about withdrawal of amount from the credit cards so as to identify the location from where the credit cards were used. When the respondent approached the appellant, the appellant showed their inability to help the respondent in the absence of any request from the police authorities. The respondent approached the police authorities and the police wrote to the appellant. The fax message sent by Head Constable Munender Singh to the appellant on 30.10.2004 is at page 166 of the paper-book. It fortifies the stand taken by the respondent. The same is as follows :