Nirmala Jain vs UCO Bank And Ors.

S.N.H. Zaidi, J

This appeal impugns the order dated 8.11.2005 of the learned Presiding Officer of the Debts Recovery Tribunal-II, Delhi (for short, the DRT) passed on application (M.A. No. 2/2003) moved by the applicant/respondent Bank in O.A. No. 418/1997 whereby the learned PO had directed the Registrar of the Tribunal to lodge an FIR with the concerned police authority. Relevant facts, in brief, are that the respondent Bank had filed application (O.A. No. 418/2005) against the appellants R.L. Jain (now dead) and Smt. Nirmala Jain and respondent No. 2 for the recovery of certain amount along with interest and cost. The O.A. proceeded ex parte and, in evidence, the Bank filed affidavits of witnesses and original documents, including sale deed dated 18.6.1980 of the mortgaged property bearing No. 40/72, Punjabi Bagh, New Delhi and a letter dated 8.5.1989 of the appellants offering to create equitable mortgage of the said property. The DRT vide order dated 27.8.1998, allowed that OA. The application moved by the defendants/appellants for setting aside the ex parte order was dismissed by the DRT on 6.7.2001, against which the appellants filed Misc. Appeal No. 232/2001. As no payment was made by the defendants pursuant to the order dated 27.8.1998 and no order staying the Recovery Certificate (RC) was passed in the said misc. appeal, the Recovery Officer (RO) attached the mortgaged property and issued notice for settlement of sale proclamation in the execution proceedings of RC No. 211 of 2001, The appellants, thereafter, moved an application before the RO objecting the attachment saying that they had never mortgaged their property No. 40/72, Punjabi Bagh, New Delhi and neither the title deed of that property was ever deposited nor they created any charge or mortgage in favour of the Bank. The respondent Bank, on 6.1.2003, filed an application (M.A. No. 2/2003) before the DRT for initiating action under Section 340, Cr.P.C. against defendant Nos. 2 and 3 (appellants herein) and other persons alleging that the original sale deed dated 18.6.1980 and letter dated 8.5.1989 had been removed and replaced by coloured photo copies thereof in the O.A. file, it was also alleged that after removing those documents from the file, it were taken out of the premises of the Tribunal and after making coloured photo copies thereof, the coloured photo copies were put in place of the original documents and this could not be possible without the active aid and assistance of some official of the Tribunal. On that application, an inquiry was conducted by the Registrar of the Tribunal. The learned Presiding Officer while observing that though no positive sign of involvement of any official of the Tribunal has been found in the inquiry but to bring out the truth and to identify the real culprit, a police inquiry is needed in the matter, by the impugned order, directed the Registrar to lodge an FIR with the concerned police authority. Feeling aggrieved with this order defendant Nos. 2 and 3 have filed this appeal. During the pendency of the appeal, appellant No. 1 R.L. Jain had died.

I have heard Mr. Mohan Murti Shandilya, learned Counsel for the appellant and Mr. D.S. Chauhan, learned Counsel for the respondent and perused the record.

The contention of the appellant's Counsel is that though the application was moved under Section 340, Cr.P.C. but the DRT, without making any inquiry or recording any finding about the commission of any offence referred to in Section 195(1)(b) of the Cr.P.C, in relation to the O.A. proceeding or in respect of the documents allegedly given in evidence in that proceeding, had ordered for lodging the FIR with the police, which is unsustainable as it has not been passed after due compliance of the requirement of Section 340, Cr.P.C. He has pointed out that the DRT had not made or sent any complaint to the Magistrate, as is required by the said section and the Bank had also not lodged any report with the police. His further contention is that the alleged loss of documents from the record of the Tribunal is not covered by the offences referred to in the provisions of Section 195(1)(b), Cr.P.C.

In respect of offences referred to in Section 195(1)(b), Cr.P.C, there is a restriction that no cognizance of those offences shall be taken by any Court unless a complaint in writing is made by that Court or by an authorised officer of that Court because the offence is stated to have been committed in relation to the proceedings in that Court. Section 340, Cr.P.C. is invoked to get over the bar imposed under Section 195, Cr.P.C. The DRT, by virtue of Section 22(3) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, is deemed to be a Court for the purposes of Section 195 and Chapter XXVI, Cr.P.C. A perusal of the impugned order, however, shows that the DRT had not exercised its power under Section 340, Cr.P.C. as neither he proceeded to hold any inquiry nor recorded any finding about the commission of any offence adverted to under Section 195, Cr.P.C. nor made any complaint to any Magistrate, but these circumstances by itself do not make the order unlawful as it is well settled that in criminal law, a report can be lodged by anyone who has become aware of a crime having been committed and thereby set the law into motion. From the averments of the application moved before the DRT by the respondent Bank unlawful removal/theft of the original documents from the file of the O.A. was prima facie appearing and if in order to unearth the truth, the DRT had directed the Registrar to lodge the report with the police, the same cannot be held to be bad in law.

In my opinion unlawful removal of original documents from the records of the Tribunal, tantamounts to commission of theft of valuable security and its replacement by their coloured photo copies, as alleged, was a very serious offence. The truth of the allegation could have been ascertained only by a proper investigation of the police wherein it could be revealed that; (a), whether the original sale deed and letter were filed by the Bank; (b), if so, whether it were removed and replaced by their coloured photo copies; (c), if so, who were involved in it; and, (c) whether it was done with the aid and assistance of any official of the Tribunal? In the given circumstances, the impugned order was correctly passed.

The contention of the respondent's Counsel has also force that since the impugned order does not say about lodging of FIR against the appellants, therefore, there is no locus for the appellants to assail that order. The DRT had only directed the Registrar to lodge an FIR without saying against whom it be lodged. Without knowing the contents of the report and merely apprehending that it could be against them, the appellants cannot be said to have any grievance with the impugned order or have any locus for challenging the same in appeal. This appeal appears to have been filed to pre-empt the effort of the DRT to unravel the truth of allegations made by the Bank in its application.

In view of the above discussion, this appeal is devoid of any merit and is liable to be dismissed. The appeal is dismissed accordingly. Copy of this order be furnished to the parties as per law and one copy be also sent to the DRT concerned.