JAIRAM SRIDHARAN Vs. ASHOK KUMAR LAKHOTIA

JUDGEMENT

(1.) The petitioners have prayed for quashing of a complaint bearing No.CS 81045/2021 filed by the opposite parties alleging, inter alia, that the opposite parties filed the above mentioned complaint against the petitioners and six others alleging commission of offence under Sec. 420/406/468/477/477A/120B of the IPC. The learned Chief Metropolitan Magistrate took cognizance of offence against the persons including the petitioners and transferred the case to the 19th Court of the Metropolitan Magistrate for disposal. The learned Magistrate issued process against the petitioners and other accused persons under Sec. 204 of the Code of Criminal Procedure. It is alleged on behalf of the petitioners that they were erroneously arrayed as accused persons. They were neither impleaded with the company nor the directors of the company during the relevant period of time when the offences were alleged to have been committed. The petitioners were implicated as two of the accused persons by the complainant pleading a case of vicarious liability though the provisions of the IPC did not provide for imposition of vicarious liability and therefore process might not have been issued against the petitioners. The petitioners were appointed directors of Pinamal Capital and Housing Finance Limited (PCHFL) with effect from 7/10/2021 and 30/9/2021 respectively.

(2.) The case of the complainants, in brief, is that they availed a non housing home loan vide Loan Account No.CAL/032661 which was initially sanctioned vide letter dtd. 29/2/2012 by First Blue Home Finance Limited which subsequently came to be known as Dewan Housing Finance Corporation Limited (DHFL). As collateral security for the said loan, the complainants mortgaged an immovable property situated at Liluah in the District of Howrah. It is further alleged by the complainant that they repaid loan regularly up to 2019 to 2020. Thereafter, due to Covid-19 and financial constraints, payment of loan become irregular. In October 2020, the complainants approached DHFL for One Times Settlement (OTS). After negotiation one time settlement was arrived at allowing the complainants to pay Rs.33,72,378.00 towards OTS in 3 equal tranches up to 30/12/2020. The complainants accepted the OTS and made payment of entire money towards OTS within stipulated period of time. Thereafter, the authorised signatory of DHFL vide letter dtd. 4/1/2021 acknowledged closure of loan account on payment of OTS by the complainants. DHFL also issued no due certificate and undertook to return the original property documents within 51 working days to the complainants. In June 2021, the complainant attended the office of PCHFL and requested for return of property documents however the accused No.4 took some time to return the said documents. Subsequently, the accused No.4 visited the office of the complainants and informed them that the loan account had not been settled. Rather 4 EMIs were due and payable by the complainants. He also stated that the loan account may be classified as a non performing asset in case of failure on the part of the complainants to repay the said EMIs. On 22/6/2021 the representatives of the complainants went to the office of PCHFL and met accused No.4 and handed over all copies of communications during the period between 28/10/2020 and 4/1/2021 stating, inter alia, that the loan account was already settled on payment of OTS. Accused No.2, however denied the authenticity of the communications contending that OTS had not been issued under the appropriate authority of DHFL. Subsequently, vide letter dtd. 11/6/2021 PCHFL through its authorised Advocate demanded overdue amounts of the EMIs with a threat to initiate a proceeding under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI).

(3.) That on 1/12/2021 the complainants lodged a complaint against the accused persons including the petitioners alleging commission of offence under Ss. 420/406/468/477/477A/120B of the IPC. The learned Chief Metropolitan Magistrate took cognizance of offence vide order dtd. 1/12/2021 and transferred the case to the 19th Court of the learned Metropolitan Magistrate. The learned Magistrate examined two witnesses including one of the complainants and issued process against the accused persons including the petitioners.