NALINKSHAN A. Vs. ABULAISE AND ANOTHER

JUDGEMENT

(1.) This is an application filed by the petitioner, who is the respondent in Crl. MP to quash Ext. P1 proceedings (Crl. MP 1161/2012), pending before the Chief Judicial Magistrate, Palakkad under Article 227 of the Constitution of India. It is alleged in the petition that the petitioner is presently holding the post of Chief Manager, State Bank of Travancore, Urakom Branch, Thrichur. Formerly he was the Chief Manager (Advances) of the same Bank at Palakkad. The first respondent and his wife availed two housing loans and a loan under the Traders Special Scheme from the Alathur Branch of State Bank of Travancore. Since, the payments under three loans were irregular, they were declared as Non Performing Asset (NPA) and Ext. P3 notice was issued under Section 13(2) of The Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short the 'SARFAESI Act') calling upon the first respondent herein to remit an amount of Rs. 10,06,680/- due under the three loans and in the notice itself, it was mentioned that if the amount is not paid, they will initiate proceedings under the SARFAESI Act. The first respondent did not send any reply to this notice. So, the petitioner who was the Authorized Officer of the Bank filed the petition under Section 14 of the SARFAESI Act to take possession of the security interest before the Chief Judicial Magistrate Court, Palakkad and Ext. P4 petition has been filed for that purpose. After considering the documents and allegations in Ext. P4, the Chief Judicial Magistrate, Palakkad passed Ext. P5 order appointing an Advocate Commissioner to take possession of the secured asset as provided under the said Act. The first respondent filed the writ petition before this Court challenging the order of the Chief Judicial Magistrate as WP (C) No. 19748/2011(P) and this Court by Ext. P6 judgment disposed of the petition giving an opportunity to the first respondent to pay of the debt in 12 equal monthly installments starting from 01/08/2011 and during this period the proceedings as per Ext. P5 order of the Chief Judicial Magistrate was directed to be kept in abeyance. It is also mentioned in Ext. P6 judgment and if any default was committed by the first respondent herein, it is open to the Bank to continue proceedings. Thereafter, the first respondent sent Ext. P7 lawyer notice to the present petitioner and another Manager stating that, he had given a false evidence before the Chief Judicial Magistrate Court showing incorrect details and obtained Ext. P5 order and thereby committed an offence under Sections 191, 193, 196 and 200 of IPC and called upon the addresses in that notice to close the transaction or he will be proceeding against them criminally. The Bank sent Ext. P8 reply notice to them stating that still some amount is due under the two housing loans taken which was secured by the mortgage created. It is thereafter that the first respondent had filed Ext. P1 complaint before the Chief Judicial Magistrate Court for taking action against the petitioner under Section 195 and Sections 340 and 190 of the Code of Criminal Procedure (in short "Code"). After taking the statement of the first respondent, who is the complainant in Ext. P1, the learned Magistrate had issued notice to the petitioner herein asking him to appear before that Court. It was served on the petitioner herein and he appeared before that Court and it is thereafter he filed this petition to quash the proceedings to Ext. P1 complaint claims the following relief:

(2.) Heard the counsel for the parties and the learned Public Prosecutor.

(3.) The counsel for the petitioner submitted that the first respondent herein had taken two housing loans and another loan and all the three loans became NPA and thereafter they issued notice under Section 13(2) of the SARFAESI Act showing the amount due and calling upon the first respondent herein to pay the amount. But he did not send any reply nor had he made any arrangements to pay the amount as well. So, the petitioner, as Authorized Officer of the Bank, initiated proceedings under Section 14 of the SARFAESI Act for taking possession of the security provided by the first respondent and after considering the documents, the learned Chief Judicial Magistrate has passed Ext. P5 order. Without questioning the order under Section 17 of the SARFAESI Act, the first respondent approached this Court by filing a writ petition and in that writ petition he never questioned the legality of the act or the quantum of amount due from him to the Bank and on that basis he obtained Ext. P6 order from this Court for payment of the amount on installment basis. It is thereafter that he sent Ext. P7 notice for which Ext. P8 reply was sent. Even thereafter he did not file any appeal as provided in the Statute but filed Ext. P1 complaint with a view to harass the petitioner. It is merely an abuse of process of Court and no offence has been committed by the petitioner and so the proceedings has to be quashed.