ICICI Bank vs State Of Jharkhand And Others

Sanjay Kumar Dwivedi, J

By order dated 09.2.2021 notices were issued upon the O.P.No.2. The office note dated 9.3.2022 suggest that notices have been received personally by the O.P.no.2. The matter was taken up on 22.4.2022 and inspite of the service of notice the O.P.No.2 has not appeared and that is why on that date, with a view to provide one more opportunity to the O.P.No.2 the matter was adjourned. The matter was again adjourned on 18.8.2022 and this matter was taken up today. Nobody has appeared on behalf of the O.P.No.2 and, accordingly, the matter has been heard on merit.

Heard Mr. Anish Kumar Mishra, the learned counsel has appeared for the petitioner and Ms. Shivani Kapoor, the learned counsel appears on behalf of the respondent State.

This petition has been filed for quashing of the order taking cognizance dated 11.01.2018 and the entire criminal proceeding in connection with C/1 Case No.562 of 2016 by which cognizance has been taken against the petitioner and the matter is pending before the learned Judicial Magistrate, First Class at Jamshedpur.

The complaint has been filed alleging therein that the O.P.No.2 has availed financial assistance in the year 2006 from the petitioner Bank for the purpose of two residential flats at Pardih Mango, Jamshepdur by way of home loan for a sum of Rs.20,00,000/- vide LAN No.LBJMR00001395814. The O.P.No.2 further alleged that at the time of disbursing the aforesaid amount to him, the petitioner bank apart from other documents has taken the original registered sale deed of the complainant in respect of his flat no.D/18 and 19 corresponding to plot no.132 and 133 by way of collateral security vide deed no.479 subject to condition that the same shall be returned to the complainant after repayment of the aforesaid loan amount. The O.P.No.2 further alleged that in due course the complainant has repaid the entire loan amount to the petitioner bank in respect of aforesaid loan account. That after having been paid the entire loan amount and after having satisfied the petitioner bank has granted a No Claim Certificate dated 13.8.2011 in favour of the complainant. It has been further alleged that though the complainant has repaid the entire amount to the petitioner bank the petitioner bank has intentionally and deliberately not returned the registered sale deed to the complainant which the petitioner bank had taken from the complainant as collateral security and since then the complainant had been running after the petition bank for getting back the aforesaid registered sale deed but the petitioner bank has been refusing to return the same on some excuse or the other and finally on7.8.2015 the complainant finding no way out sent a notice to the petitioner bank through his lawyer and registered cover asking the petitioner bank to return the said sale deed to the complainant. That the petitioner bank after having received said notice reply dated 9.9.2015 denying having received any such sale deed from the complaint and asked the complaint to provide the petitioner bank copy of said sale deed in respect of flat no.19 and accordingly the complainant has deposited Xerox copy of the sale deed of flat no.19. That he again sent notice through his lawyer demanding the original sale deed of flat no.18 and the petitioner bank again by giving reply to the said notice declined to return the sale deed. The OP No.2 alleged that the petitioner bank having been entrusted with the original sale deed has misappropriated the same and has committed the offence falling with ambit of section 409 IPC and is liable to be punished as per law.

The learned counsel for the petitioner submits that the Branch Manager of ICICI Bank Limited Bistupur, Jamshedpur has been made accused; however, the name of the Branch Manager who has committed the offence has not been mentioned. He submits that in the criminal case the cognizance is required to be taken against the person and not against the post. According to him, the post of Branch Manager is a post successor in interest and without particular Branch Manager who has committed offence, no action could be taken against the present Branch Manager. He refers to the letter dated 13.8.2011 contained in Annexure-3 and submits that the Bank has already issued N.O.C in favour of the O.P.no.2 and inspite of that the present case has been filed on the false allegation that the original document has not been returned by the Bank. According to him, the N.O.C has been issued however the case has been filed in the year 2016 much belatedly. He further submits that the cognizance order is also a non-speaking order.

On the other hand, Ms. Shivani Kapoor, the learned counsel for the respondent State submits that the learned court after considering the complaint and the solemn affirmation has taken the cognizance.

On perusal of the entire document, it transpires that the Bank in question has issued the N.O.C in favour of the O.P.No.2 by letter dated 13.8.2011 and the case has been lodged after four years in the year 2016 of the issuance of the said letter. The petitioner was at that time posted as Branch Manager or not is not disclosed in the complaint petition. Only the company is made accused in the petition and any Branch Manager by name has not been made accused in the complaint petition and cognizance has been taken under section 409 of the I.P.C. Section 409 speaks of imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. It is well settled that the company cannot be sent to jail and the order is not required to be passed by the learned court which cannot be implemented. Moreover, it has been contended on behalf of the petitioner that the alleged original document has already been released in favour of the O.P.No.2 and the O.P.No.2 inspite of the opportunity provided has not appeared before this Court.

In view of the above reasons and analysis the order taking cognizance dated 11.01.2018 in connection with C/1 Case No.562 of 2016, pending before the learned Judicial Magistrate, First Class at Jamshedpur is set aside.

The matter is remitted back to the learned concerned court to pass a fresh order in accordance with law.

Interim order stands vacated.

Cr.M.P. No.112 of 2021 stands disposed of.

I.A. if any also stands disposed of.