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Judgment
The petitioners Sri Sunil Kumar Sinha, Sri Prasant Kumar Dwivedi, Sri Dipak Kumar Sengupta, Sri Debango Bhushan Hazarika and Sri Pintsho Tshering Namgyal have filed this application under Section 482 of the Code of Criminal Procedure, 1973 (CrPC for short) with prayer for setting aside and quashing the Complaint Case No. 35c/2019 pending in the Court of the learned Judicial Magistrate First Class at Dibrugarh (JMFC or Magistrate for short) under Sections 417/34 of the Indian Penal Code, 1860 (IPC for short).
The State of Assam and Sri Diganta Kakoty are arrayed as respondents No. 1 and 2, respectively.
Factual Matrix :-
The complainant/respondent No. 2, Diganta Kakoti, has brought up a case against the petitioners and another accused, Sri Bipul Kumar Khataniar, arraigned as accused No. 1. The sum and substance of the complainant is that he is the legal heir of Smt. Punya Prava Kakoty, who was the owner of a parcel of land admeasuring 2 Kathas, 11.5 Lechas appertaining to Dag No. 60 of PP No. 67, situated at extended Tekela Chiring Gaon under Dibrugarh Mouza by way of purchase and possession vide Deed of Conveyance No. 1838 of 1974 dated 27.05.1974 from Sri Prafulla Chandra Das, and out of this parcel of land, she donated a portion of land measuring 1 Katha with specific boundaries to her son Prasanta Kakoty vide Deed of Gift No. 1329 of 2003 (Serial No. 1917) on 07.06.2003/13.06.2003 for construction of his residential building. The remaining 1 Katha, 11.5 Lechas of land with an Assam Type residential building was under the ownership of Punya Prava Kakoty, who passed away on 29.10.2017, leaving behind the complainant as one of the legal heirs/successors-in-interest.
Prasanta Kakoty took a housing loan of Rs. 9 Lacs from the Punjab National Bank for construction of a residential building on his land measuring 1 Katha only, creating equitable mortgage over his own land as security for repayment and the complainant's mother stood as personal guarantor and signed a Letter of Guarantee on 25.07.2003 at her own residence when the accused No. 1, Bipul Kumar Khataniar visited her residence. It is submitted that the complainant's mother never mortgaged her plot of land measuring 1 Katha 11.5 Lecha against the housing loan sanctioned and availed by her son, Prasanta Kakoty. It is pertinent to mention that Prasanta Kakoti is the brother of the complainant.
It is further alleged that the accused No. 1, Bipul Kumar Khataniar, the then Branch Manager of Punjab National Bank (PNB for short) along with his accomplices, indulged in forgery, and fabricated documents and fraudulently showed the complainant's mother as mortgagor of her landed property and residential building. Subsequently, the bank sanctioned other loans to Prasanta Kakoty viz;
housing loan of Rs.9 Lacs by enhancing the previous house building loan of Rs.7.74 Lacs;
overdraft loan of Rs.2.25 Lacs on 08.11.2005;
transport loan of Rs.32.24 Lacs on 22.02.2006 and
one loan of Rs.4.50 Lacs in the name of the complainant's mother and her daughter-in-law, Monalisha Kakoty, wife of Prasanta Kakoty.
However, these loans, except the loan of Rs. 9 Lacs, were procured without the consent of the complainant's mother and the bank forged the complainant's mother's signature in all the loan documents.
It is further alleged that the petitioner No. 1/Accused No. 2, Sri S.K. Sinha, without ascertaining the liability of the complainant's mother as guarantor with respect to her landed property measuring 1 Katha 11.5 Lechas under Dag No. 60 of PP No. 67 at Extended Takela Chiring Gaon, illegally wrote to the Deputy Commissioner, Dibrugarh vide his letter dated 27.07.2011, to take possession of the above-mentioned properties of the complainant's mother. It is averred that the complainant's mother never mortgaged her property, nor stood as a guarantor. Loans were disbursed to Prasanta Kakoty illegally on 08.11.2005, 12.11.2005 and 28.02.2006 and he procured the aforementioned loans deceitfully by forging documents in connivance with the bank officials.
It is submitted that the PNB filed a Debt Recovery Case No. 179/2013. The affidavit in this complaint was signed and verified by accused No. 3/petitioner No. 2, Prasant Kumar Dwivedi with the help of some forged documents in support of the DRT case, which was brought up against Prasanta Kakoty and three others, including the complainant's mother as one of the defendants for recovery of Rs.41,52,791/- (Rupees Forty One Lacs Fifty Two Thousand Seven Hundred and Ninety One) with interest upto 24.09.2013. It is further averred that the PNB clubbed together the outstanding dues of all the three different loan accounts viz house building loan, overdraft loan and transport loan availed by Sri Prasanta Kakoty on three different dates, as mentioned above.
It is submitted that the complainant's mother contested the DRT Case No. 179/2013. The accused No. 4/respondent No. 5, adduced evidence-on-affidavit and exhibited documents including the forged documents in support of the bank's case and false claims against the complainant's mother. During the proceeding, the DRT sent the alleged forged documents bearing the signatures of the complainant's mother to the Central Forensic Science Laboratory, Guwahati (CFSL for short) for examination by Handwriting Expert. It is also submitted that the report of the forensic laboratory revealed that the documents through which the complainant's brother, Prasanta Kakoty, in connivance with the bank officials, i.e. the present petitioners procured the loan for the complainant's brother, were found to be forged, as the signatures of the complainant's mother was found to be forged.
It is alleged that all these forged documents were prepared under the tenure of the accused No. 1, Manager of the PNB, Dibrugarh Branch. The bank thus failed to produce any document executed by the complainant's mother creating equitable mortgage of loans sanctioned to the complainant's brother, Prasanta Kakoty on 26.07.2003. The Tribunal held that equitable mortgage was created for the sole reason that the original Title Deed dated 27.05.2003 was with the bank.
It is submitted that the complainant's mother (defendant No. 2) passed away on 29.10.2017 and the DRT delivered the judgment holding that the liability of defendant No. 2 is only for the housing loan account and the bank was directed to submit revised statement of account showing separate liability of defendant No.2. It is also averred that the PNB filed the Title Suit No. 79/2014, and the plaint was signed and verified by accused No. 4, Mr. PT Namgyal/petitioner No. 5 in the Court of the Civil Judge, Dibrugarh, praying for a decree for payment of Rs.5,83,400/- (Rupees Five Lacs Eighty Three Thousand and Four Hundred). The complainant's mother also contested the title suit and filed written statement, subsequently, followed by a Misc Case No. 28/2015-16 filed by the complainant's mother for interim/temporary injunction, restraining the PNB or the employees from alienating the aforementioned land and also for forwarding all the documents with the forged signatures of the complainant's mother for forensic examination.
Report was forwarded to the Civil Judge from the forensic laboratory on 30.07.2018 that the signatures of complainant’s mother were forged. The complainant's mother, Late Punya Prava Kakoty also brought up a Title Suit No. 31 of 2015 on 19.05.2015, which was registered in the Court of the Civil Judge, for a declaration that certain documents were forged, as she never affixed her signatures on those documents to obtain loan from PNB and declaration of the equitable mortgage created through those documents to procure the loan as unenforceable in law.
It is further contended that the forged documents viz. Exhibits No. A-12, A-14 and A-17 pertaining to the guarantor and creation of equitable mortgage over the properties of the complainant’s mother, were also used as genuine in the judicial proceeding in DRT Case No. O.A. 179/2013. Thus, the petitioners have committed criminal offences punishable under Sections 419/420/464/465/468/471/34 of the IPC. It is also alleged that the petitioners have also forged all the documents viz.
Loan application of Punya Prava Kakoti dated 20.04.2004,
Joint loan application of Punya Prava Kakoty and Monalisha Kakoty dated 20.04.2004,
Agreement of housing loan with N J stamp of Rs.10/-,
Consent Clause of Borrower,
Letter of Authority,
Letter of borrowers dated 04.06.2004,
Balance & Security letter dated 31.12.2006 and,
Letter of continuity dated 10.5.2004 produced and submitted in support of plaintiff's claim in Title Suit No. 79/2014, which is a case pertaining to the loan for residential building renovation allegedly obtained by the respondent No. 2’s mother jointly with her daughter-in-law Smti Monalisha Kakoty.
It is further contended that the Title Suit No. 31/2015 and the Miscellaneous Case No. 35/2015 filed by Punya Prava Kakoty in the Court of Civil Judge, Dibrugarh, are pending for adjudication.
It is alleged that the petitioners criminally conspired to cheat by way of forging the documents and depriving the respondent No. 2's/ complainant's mother of her valuable properties, despite her vehement denial of having mortgaged the properties as security in any loan procured by Sri Prasanta Kakoty and also for applying for any other loan.
It is averred that the petitioners’ representing the National Bank at different times and capacities illegally advised for e-auction of the properties of the respondent No.2’s mother published on 23.02.2015 through ‘Dainik Asam’ for Rs.27 Lacs. It is averred that the petitioners defamed the complainant’s/respondent No.2’s mother, who had a respectable status in the society and was associated with social work and religious activities. The petitioners sold the respondent No.2’s mother’s properties through e-auction to Sri Manabjyoti Rajkhanikor. The petitioner No. 3/accused No. 5, Sri D K Sengupta issued sale certificate dated 18.06.2015.
It is contended that the petitioners have committed criminal breach of trust and they have been utilising the sale proceeds for their own benefit without any sanction of law and thus, they have committed the offence punishable under Section 409 IPC. It is also contended that the petitioners have sold the properties belonging to the complainant’s/respondent No.2’s mother illegally and without any sanction of law under the guise of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act for short), in a most fraudulent and deceitful manner for non-existent liability and also illegally issued sale certificate dated 18.06.2015 without jurisdiction and authority of law.
It is also contended that the PNB got the land belonging to the respondent No. 2’s mother mutated initially to PNB and simultaneously vide order dated 29.07.2016 through Misc Case No. 28/2015-16, the loan was mutated by the Circle Officer to the purchaser’s name. In this manner, by depriving the respondent No. 2’s mother of her legal rights, the petitioners have committed offence under Section 499 IPC, which is punishable under Section 500 IPC.
It is also admitted that the accused No. 1, who is not a petitioner in this case was removed from service from the PNB, after the disciplinary proceeding was drawn against him. It is submitted that the complainant’s/respondent No. 2’s mother learnt about the forged documents and personation which have also been used in the judicial proceeding, when the DRT Case No. OA 179/2013 filed by the PNB against Sri Prasanta Kakoty, Punya Prava Kakoty (complainant’s mother), Pranabjyoti Baruah and M/S Gargo Motors was brought up against them.
It is submitted that no revised statement as directed to the PNB by the Debt Recovery Tribunal, Guwahati (DRT for short) has been furnished to Punya Prava Kakoty to ascertain her liability, if any. Moreover, Title Suit No. 79/2014, Title Suit No. 31/2015, Miscellaneous Cases No. 28/2015 and 35/2015 pertaining to fraudulent, forged and concocted documents and liability are pending for adjudication in the Court of Civil Judge, Dibrugarh. When the complainant applied for a certified copy of his land document as legal heir, he learnt about the mutation in the name of PNB and the mutation of the e-auction purchaser Sri Manabjyoti Rajkhanikor, in place of the complainant’s mother relating to the same parcel of land appertaining to Dag No. 60 of PP No. 67 situated at Extended Tekela Chiring Gaon under Dibrugarh Mouza on 10.08.2018.
This complaint petition was registered as Complaint Case No. 35c/2019.
After filing of the complaint petition, the complaint was forwarded under Section 202 CrPC for a limited police investigation and on receipt of report, cognizance was taken against all the petitioners including the prime accused Sri Bipul Kumar Khataniar under Sections 417/34 of the IPC and summonses were issued to the petitioners. The scanned copies of the Trial Court Record reveals that the petitioners did not appear before the Trial Court and they have filed this application under Section 482 of CrPC for setting aside and quashing the proceeding of entire Complaint Case No. 35c/2019 including the order of cognizance dated 03.12.2019.
Heard learned counsel Mr. A. Ganguly and learned counsel Mr. A. Dutta for the petitioners, learned Additional Public Prosecutor Mr. R.J. Baruah for the respondent State and learned counsel Mr. P.C. Goswami and learned counsel Mr. B.D. Goswami for the respondent No. 2.
Argument for the Petitioners :-
Learned counsel for the petitioners has laid stress in his argument that the loans were illegally procured by the respondent No. 2’s brother Prasanta Kakoty, by forging documents way back in the year 2003, 2005 and 2006. The petitioner No. 1 S.K. Sinha wrote the letter in the year 2011 for attachment. The loans were procured by the respondent No. 2’s brother in connivance with the accused No. 1, who was discharging his duties in the PNB at the time of the alleged incident. The petitioner No. 2 Prasanta Kumar Dwivedi affixed his signature on the affidavit in the DRT Case No. OA 179/2013 as bound by duty. This signature was affixed on 24.09.2013 which makes it amply clear that the documents were forged during the tenure of accused No. 1 and not during the tenure of the petitioners in this case. The petitioner No. 5/accused No. 4 PT Namgyal cannot be held liable because, while contesting the DRT Case No. OA 179/2013, he adduced his evidence and additional evidence on affidavit and exhibited the documents including the forged documents in support of the bank’s case. Had he been involved in the forgery of the bank’s documents, he would never have exhibited the forged documents to support his case. In a similar manner, he also cannot be held liable for affixing his signature on the plaint and verifying the same as Chief Manager of Dibrugarh Branch in Title Suit No. 79/2014 and also for submitting his evidence-on-affidavit as PW-1 on 29.08.2014.
It has to be borne in mind that the forensic report was received after the aforementioned signature was affixed by the abovenamed petitioners. The forensic report dated 30.07.2018 forwarded to the Civil Judge, clearly reveals that the respondent No. 2’s/complainant’s mother did not affix her signatures on the documents which were fraudulently used by the respondent No. 2’s brother in connivance with the accused No. 1 to illegally procure loans under various pretexts, more particularly, Exhibit A-12, A-14 and A-17 of the DRT Case No. OA 179/2013. The various loans illegally procured have already been mentioned in the foregoing discussions.
It is also submitted that the sale certificate was issued by the accused No. 5/petitioner No. 3 on 18.06.2015 before receipt of the forensic report of signatures of Punya Prava Kakoty. So stating, it is submitted that the petitioners were not even aware at the time of affixing their signatures on the sale certificate, evidence on affidavit on the complaint petition and such other documents that the documents on which they have relied upon to bring up a case against the respondent No. 2’s mother, were forged. They were not aware that the respondent No. 2’s brother and the accused No. 1 have misrepresented the respondent No. 2’s mother and have procured several loans as mentioned above.
Learned counsel for the petitioners has laid stress in his argument that the petitioners have learnt that the signatures were forged on 31.10.2017. The complaint petition clearly reveals that the respondent No. 2 learnt about the forged documents after the judgment in DRT Case No. OA 179/2013 was delivered on 31.10.2017.
It is further argued that cognizance was taken in the Complaint Case under Section 417 IPC, after an enquiry under Section 202 CrPC.
Annexure-B in the additional affidavit is the order dated 03.12.2019 passed by the learned Trial Court, taking cognizance under Section 417/34 of the IPC against the present petitioners. Annexure-6 is the judgment and order dated 31.10.2017 in DRT Case No. OA 179/2013.
It is further contended that no offence of cheating has been made out against the petitioners. The allegation is basically against the respondent No. 2’s brother Prasanta Kakoty, who illegally procured housing loans and subsequently, different loans in connivance with the accused No. 1 Bipul Khataniar.
It has been submitted by the learned counsel for the petitioners that cognizance was taken under Section 417 of the IPC, which indicates cheating simpliciter. Nowhere it has been stated that the petitioners had cheated the respondent No. 2 or respondent No. 2's mother for their own gain or for wrongful gain. It is averred that the allegations are basically against the accused No. 1 and the respondent No. 2’s brother and they have forged the signatures of the respondent No. 2’s mother for their benefit. It is the respondent No. 2’ brother and the accused No. 1 who had benefited by forgery.
Arguments for the Respondents :-
Per contra, learned counsel for the respondent No. 2, Mr. B. D. Goswami laid stress in his argument that the case cannot be throttled at the threshold. Evidence will reveal the petitioners’ involvement in procuring huge amount of loan without the knowledge of the respondent No. 2's mother. It is further submitted that in a criminal case brought up by the bank, the respondent No. 2's brother, Prasanta Kakoty was acquitted. No purpose will be served, blaming Prasanta Kakoty, as the criminal case against him has culminated into a logical conclusion. It is further argued on behalf of the respondent No. 2 that a civil suit was brought up against Prasanta Kakoty as a defendant.
The learned counsel for the respondent No. 2 has drawn the attention of this Court to the conclusive part of the decision in O.A. No. 179/2013, wherein it has been held that :-
“The charge of the certificated amount be kept alive on (iil) Residential property belonging to Smt. Punya Prava Kakoty consisting of land, building, structures, fixtures, fittings, erections and installations situated under Dag No. 78 (old)/60 (new), Periodic Patta No. 46/38 (old)/67 (new) at Tekhela Chiring Gaon Ward, Mouza Dibrugarh Town, District -Dibrugarh, Assam and measuring about 1 katha 11.5 lessas and bounded by:- North – Part of Dag No.78 (old); South – Part of Dag No. 78(old) sold to Khargeswar Baruah; East Lt. Makhan Lal Chaliha & Ors; West Public Road [described in schedule 2], till the amount for housing loan A/c is realized in full, under the certificate. (Order dated 31.10.2017)”
It is further submitted that at page 224 of this petition, the notice dated 25.02.2015 for e-auction has been attached. At page 226 of this petition, the sale certificate dated 18.06.2015 has been attached. The sale certificate was signed by accused No. 5/petitioner No. 3. At page 227, the order of mutation has been appended, which clearly reveals that the mutation order was passed on 29.07-2016. It is contended that the mutation order clearly reveals that Punya Prava Kakoty was aware of the mutation. There was no objection. Possession was taken over by Manab Jyoti Rajkhanikor or by the PNB. It is contended that the order of the DRT in OA no. 179/2013 dated 31.10.2017 was passed after this order of mutation dated 29.07.2016 in Misc Case No. 28/2015-16. Vide the order dated 31.07.2017, the DRT observed that the liability of the respondent no. 2's mother is only with respect to the housing loan account. Hence the applicant bank (PNB) was directed to file revised statement of account showing separate liability of the defendant No. 2 (Punya Prava Kakoty).
It is further contended that the charge sheet against the accused B.K. Khataniar was submitted on 30.08.2008 during the departmental proceeding against B.K. Khataniar and the charge sheet clearly reveals that the account of Prasanta Kakoty as :- DOA -28.02.2006, and an Amount of Rs. 33.24 Lacs. It is thus contended by learned counsel for the respondent no. 2 that the petitioners have filed affidavits after they learnt about the fraudulent account. They were aware that Punya Prava Kakoty was not the guarantor for the extension of the loan. It is thus submitted by the learned counsel for the petitioners that the learned Trial Court by following proper procedure has taken cognizance against the petitioners. The petitioners were not within the jurisdiction of the Trial Court and the Trial Court under Section 202 CrPC took proper steps after following the procedure and taking all precautions. The Court acted in accordance with law. This is not a fit case to invoke the inherent jurisdiction under section 482 of the CrPC. Rather, if this case is stifled at the threshold, the respondent No. 2 and the legal heirs of Punya Prava Kakoty will be highly prejudiced. It is submitted that the order dated 13.05.2019 clearly reflects that as the allegations levelled against the petitioners are serious, a limited police investigation under Section 202 CrPC was necessary. So, the Court vide order dated 13.05.2019 forwarded a copy of the order to the SP along with a copy of the complaint and the annexed documents for a limited investigation.
It is averred that on the basis of the investigation of the police, cognizance was taken. This case cannot be dismissed at the initial stage only on the ground that one of the petitioners is an elderly person and the other has settled abroad. The order of cognizance annexed with the affidavit-in-opposition at Annexure-B is not liable to be set aside and quashed. As soon as the charges are taken up for consideration, the petitioners can argue and place their submissions before the Trial Court.
It is further contended that it is not mandatory that an application is to be filed as per Section 340 of the CrPC. Although, the petitioners are protected by Section 32 of the SARFAESI Act, it can only be unearthed in the trial through proper evidence that the petitioners acted in good faith.
Analysis and Conclusion :-
I have given my thoughtful consideration to the submissions at the bar.
It is submitted that the petitioner no. 1, Sunil Kumar Sinha, petitioner no. 3, Dipak Kumar Sengupta and petitioner No. 5, P.T. Namgyal are elderly retirees, aged 67, 66 and 58 years, respectively. As alleged, the petitioners have signed affidavits and plaints and they have adduced their evidence in several cases against the respondent no. 2's mother, Punya Prava Kakoti. It is submitted that as bound by duty, the petitioners have affixed their signatures on sale certificates, on plaints, affidavits and they have also brought up a case against Punya Prava Kakoty. It is apparent that through the DRT Case No. OA.179/2013, the respondent No. 2's mother, Punya Prabha Kakoty, learnt that her signatures were forged by the loanee in cohorts with bank officials. The loans were procured by the petitioner's brother Prasanta Kakoty, who allegedly was in league with Sri Bipul Khataniar. The only allegation against the petitioners is that they have brought up cases against the respondent no. 2's mother on the basis of forged and fake documents. The allegation against petitioner no. 3 is that he issued the sale certificate despite being aware of the fact that the auction was based on forged documents. Now, this Court has to adjudicate if the order of cognizance was correctly passed by the learned Trial Court.
Although the imputation of misconduct in support of Articles of Charges against Sri B. K. Khataniar, Manager of Nizo Guwahati, reveals at charge IV (L) that account of Prasanta Kakoty, DOA 28.02.2006:-
an amount of Rs. 33.24 Lacs, EM of IP of P. Baruah (one of the Guarantor) is not witnessed, Letter of continuity for EM of IP of Punya Prava Kakoty (Guarantor) held blank………
Whether, the allegations would constitute an offence under Section 417 of the IPC.
Cheating is described under Section 415 of the IPC which reads :-
“415.Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.”
417 is the penal section for cheating. Statement of charges was drawn up in the month of April 2008. It is submitted that B.K. Khataniar was also dismissed from service on misconduct.
It is true that a roving enquiry is not required, while dealing with a petition under Section 482 of the CrPC. The point to be decided in this case is that whether there is a prima facie case to set aside and quash the impugned order of cognizance dated 13.05.2019 in Case No. 35C/2019. When there is a case under Section 415 of the IPC, the ingredients to be considered are:- whether the accused dishonestly induced the person so deceived to deliver property to any other person, or induced to consent that any person shall retain any property, or intentionally induced the person so deceived to do or omit to do anything which he would not do or omit to do if he is not so deceived, and this act of omission is likely to cause damage or harm to the person in body, mind, reputation or property.”
It is submitted that in a routine manner and bound by duty, the petitioners have affixed their signatures on sale certificates, published e-auctions and affixed their signatures on several documents, unaware of the fact that those documents based on which they went ahead with the DRT case, were based on forged signatures. After the decision of DRT Case No. OA.179/2013, the affected parties learnt about the forged documents. No doubt, the respondent No. 2's mother was greatly prejudiced by the decision in DRT Case No. O.A.179/2013, which has been decided on the basis of forged documents, but can the petitioners who were discharging their duties in a routine manner and probably unaware of the forged documents, be roped in such a manner by stretching a case to such an extent? Are there prima facie materials to set aside and quash the order of cognizance, impugned by the petitioners? To decide this issue in its proper perspective, the tenure of the petitioners and the time/ date, when it was first unearthed that the documents forged for procuring the loan, by the respondent No. 2's brother in connivance with the accused No. 1 in DRT Case No. 179/2013 is relevant. The respondent No. 2’s mother filed a written statement, denying her involvement in procuring the loan.
It is an admitted fact that the first loan of Rs. 9 Lacs was obtained against the mortgage of 1 Katha land gifted by Prasanta Kakoty’s mother. However, during the course of the proceeding in DRT Case No. 179/2013, it could be unearthed that the loans were procured on the entire land of 2 Kathas 11.5 Lechas appertaining to Dag No. 60 and PP No. 67 at extended Tekela Chiring Gaon, a part of which was under the ownership of Prasanta Kakoty and Punya Prava Kakoty. The respondent No. 2’s mother Punya Prava Kakoty had vehemently denied, obtaining any loan by mortgaging her plot of land admeasuring 11.5 Lechas and of being a guarantor to her son Prasanta Kakoty, but the Tribunal decided this case against Punya Prava Kakoty, limiting her liability only for the housing loan account.
Although the learned counsel for the respondent No. 2 has submitted that Punya Prava Kakoty was aware of the auction and taking over of possession, it is argued on behalf of the petitioners that taking over of possession was only symbolic and was executed fraudulently by Prasanta Kakoty and his wife, Monalisha Kakoty in a subterfuged manner, without the knowledge of Punya Prava Kakoty. Before the final order of DRT was passed, respondent No. 2’s mother Punya Prava Kakoty had already passed away. It is also not disputed that the affected parties learnt about some fake documents at the concluding stage of the DRT Case No. 179/2013. The respondent No. 2’s mother as defendant No.2, filed a written statement and through her written statement, she denied her signatures, and the Tribunal forwarded the documents with the disputed signatures for report. The Central Forensic Science Laboratory, Guwahati, forwarded a report to the DRT on 24.09.2015 and it was through this forensic report, the forgery of signatures of Punya Prava Kakoty in some documents could be detected.
The allegation against the petitioners and their tenure of office is tabulated as follows :-
| Petitioner | Tenure | Allegation | Retire/Tran sfer |
| 1. Sunil Kumar Sinha, Authorised Officer, RD, Ghy | 24.05.2010 to 11.05.2013 | Wrote a letter on 27.07.2011 to DC for initiating physical possession of property of Punya Prava Kakoty, misusing power under the SARFESI Act, 2002 | 30.11.2014 |
| 2. Prasanta Kr. Dwivedi, Sr. Manager, Dibrugarh Branch | 13.08.2013 to 17.07.2014 | Signed and verified an affidavit in O.A. No. 179/2013 for recovery of Rs.41,52,791/-from Prasanta Kakoty and Punya Prava Kakoty | Dubai |
| 3. Sri Dipak Kumar Sengupta, Authorised Officer, RD, Ghy | 11.06.2013 to 19.02.2016 | Issuance of sale certificate on 18.06.2015 after the PNB sold the property of Smt. Punya Prava Kakoty by e-auction to Sri Manab Jyoti Rajkhanikor | 01.09.2016 |
| 4.Debanga Bhusan Hazarika, Manager and Senior Manager, Dibrugarh Branch | 22.06.2015 to 03.07.2017 | Made an application for mutation of the auction purchaser and got the name of the purchaser mutated in place of Punya Prava Kakoty by order dated 29.07.2016 in Misc Case No. 28/2015-16/Misc. | Transfer 04.04.2017 |
| 5. P.T.Namgyal, Chief Manager, Dibrugarh Branch | 06.11.2013 to 29.05.2015 | Adduced evidence on affidavit and exhibited documents including the allegedly forged documents in DRT Case No. OA 179/2013, affixed signatures and verified Title Suit No. 79/2014 for recovery | Transfer 29.05.2015 |
| of Rs.5,83,400/- | |||
From the table, it appears that letters were written, sales certificates were issued and signatures were affixed on certain documents, relying on forged documents, by all the petitioners, who were not aware that the documents, more particularly, A-12, A-14 and A-17 in DRT Case No. OA 179/2013 were forged documents. All the petitioners, during the ordinary course of business had acted upon the allegedly forged documents, unaware that the documents have been forged allegedly by Prasanta Kakoty in connivance with B.K. Khataniar. There is no direct allegation that the petitioners have forged the documents as the allegation against the petitioners is basically under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act for short) and thus, the petitioners are protected under Section 32 of the SARFAESI Act, which reads :-
“32.Protection of action taken in good faith.- No suit, prosecution or other legal proceeding shall lie against [the Reserve Bank or the Central Registry or any secured creditor or any of its officers] for anything done or omitted to be done in good faith under this Act.”
Learned counsel for the petitioners has relied on the decision of the Honb’ble Supreme Court in the case of K. Virupaksha and Another-Versus-State of Karnataka and Another reported in (2020) 4 SCC 440 wherein it has been held that :-
“16.We reiterate, the action taken by the Banks under the SARFAESI Act is neither unquestionable nor treated as sacrosanct under all circumstances but if there is discrepancy in the manner the Bank has proceeded it will always be open to assail it in the forum provided. Though in the instant case, the application filed by the complainant before DRT has been dismissed and Appeal No. 523 of 2015 filed before DRAT is also stated to be dismissed the appellants ought to have availed the remedy diligently. In that direction, the further remedy by approaching the High Court to assail the order of DRT and DRAT is also available in appropriate cases. Instead the petitioner after dismissal of the application before the DRT filed the impugned complaint which appears to be an intimidatory tactic and an afterthought which is an abuse of the process of law. In the matter of present nature, if the grievance as put forth is taken note of and if the same is allowed to be agitated through a complaint filed at this point in time and if the investigation is allowed to continue it would amount to permitting the jurisdictional police to redo the process which would be in the nature of reviewing the order passed by the learned Single Judge and the Division Bench in the writ proceedings by the High Court and the orders passed by the competent court under the Sarfaesi Act which is neither desirable nor permissible and the banking system cannot be allowed to be held to ransom by such intimidation. Therefore, the present case is a fit case wherein the extraordinary power is necessary to be invoked and exercised.
17.The appellants herein had also referred to the provision as contained in Section 32 of the Sarfaesi Act which provides for the immunity from prosecution since protection is provided thereunder for the action taken in good faith. The learned Senior Counsel for the complainant has in that regard referred to the decision of this Court in Army Headquarters v. CBI [Army Headquarters v. CBI, (2012) 6 SCC 228 : (2012) 3 SCC (Cri) 88] to contend that the defence relating to good faith and public good are questions of fact and they are required to be proved by adducing evidence. Though on the proposition of law as enunciated therein there could be no cavil, that aspect of the matter is also an aspect which can be examined in the proceedings provided under the Sarfaesi Act. In a circumstance, where we have already indicated that a criminal proceeding would not be sustainable in a matter of the present nature, exposing the appellants even on that count to the proceedings before the investigating officer or the criminal court would not be justified.”
In the case on hand, it is apparent that proceeding against the petitioners will be an abuse of the process of law, as proceeding against the petitioners may be an intimidatory tactic. It is true that the banking system cannot be allowed to be held to ransom by such intimidation. Admitted fact is that on request by Punya Prava Kakoty as defendant No. 2, the Bank Authorities forwarded the documents alleged to have been signed by Punya Prava Kakoty to the Central Forensic Laboratory for examination and the report of the Central Forensic Laboratory was submitted under cover on 01.12.2015 and this report of the handwriting expert was forwarded on 24.09.2015. Thus, the spreadsheet reflecting the petitioner’s tenure clearly reveals that the petitioners were not aware when they proceeded against the mother of the responded No.2, i.e. Punya Prava Kakoty. The only exception is that the case brought up by the petitioner No.4 concluded on 29.07.2016, after the receipt of the report from the Central Forensic Science Laboratory. This fact, however, does not implicate any culpability of the petitioner No.4, who was serving as a Senior Branch Manager from 22.06.2015 up to 03.07.2017.
The loan was obtained in the year 2003 and the respondent No.2’s mother affixed her signature and executed the agreement of guarantee on 25.07.2003. It is also submitted that after the symbolic possession, the physical possession was taken over by way of e-auction on 09.01.2012. The decision of the DRT against which the complaint case has been brought up by the respondent No.2 clearly reveals that the complainant / respondent No.2’s mother was held liable only for obtaining loan for the residential property.
Punya Prava Kakoty was not held liable for the other loans, which have been allegedly procured by using forged documents with fake signatures. It is reported that none of the petitioners were present or were posted in the Dibrugarh Branch, when the loan was procured by the respondent No.2’s brother in connivance with the accused No.1. The petitioners were also not present, when the loan was procured by the respondent No.2’s brother on the basis of the entire property of Punya Prava Kakoty, who has vehemently denied that she stood guarantor of the loan, mortgaging the entire property of 2 Kathas, 11.15 Lechas of land.
It is an admitted fact that Punya Prava Kakoty stood as guarantor for the loan in the year 2005. The transport loan was procured in the year 2006 and another loan of Rs. 4,50,000.00 was procured in the year 2004. It cannot be assumed and presumed that the petitioners were wary of the forged documents and had acted deliberately on the strength of these forged documents to bring up a case against the respondent No. 2’s mother.
The learned counsel for the petitioners has also relied on the decision of the Supreme Court in Sivakumar vs. Inspector of Police and Anr. reported in AIR 2025 SC 2148, wherein it has been observed that:
“10.The chief contention of the appellant is that he was appointed as the Manager at the Head Office of HDFC Bank on 03.11.2014 whereas the auction process and issuance of the sale certificate took place in 2012. At the relevant time, he was only serving as an Assistant Manager and it was solely the Manager who was authorized to initiate proceedings under the SARFAESI Act. Rule 2(a) of the Security Interest (Enforcement) Rules, 2002 defined authorized officer as follows:
“authorized officer” means an officer not less than a chief manager of a public sector bank or equivalent, as specified by the Board of Directors of Board of Trustees of the secured creditor or any other person or authority exercising powers of superintendence, direction and control of the business or affairs of the secured creditor, as the case may be, to exercise the rights of a secured creditor under the [Act].”
11.It was submitted that the appellant had no role in the transaction that led to the criminal proceedings, and the initiation of an FIR against him amounts to an abuse of the legal process, giving a civil dispute an unjustified criminal color.
12.Further, it was submitted by the appellant that the consumer complaint preferred by the respondent no. 2 has been dismissed by the District Consumer Disputes Redressal Commission vide order dated 14.07.2022 wherein it was observed that the possession receipt, which was signed by the complainant, clearly showed her awareness of the acquisition process before participating in the auction. Therefore, having failed in civil proceedings against the appellant, the present FIR is an attempt to further harass the appellant and pressurize him to return the sale consideration even though the complainant is currently enjoying the possession of the property in question.
13.Lastly, it was contended by the appellant that Section 32 of the SARFAESI Act provides immunity to secured creditors and their officers for actions taken in good faith under the Act. Further, this Court has categorically held in K. Virupaksha v. State of Karnataka Manu/SC/0257/2020: 2020: INSC: 261: (2020) 4 SCC 440 that once proceedings under the SARFAESI Act have been initiated and concluded, criminal proceedings on the same subject matter cannot be entertained. As such, the initiation of criminal proceedings against the appellant is contrary to the principles laid down in the above case.
14.On the contrary, the respondent no. 1 has submitted that the complainant was completely unaware of the fact that the said property was already acquired by the Tamil Nadu Housing Board and only when she went to the Sub- Registrar to register the property, she was informed that it was already acquired by the Housing Board in 2003. Therefore, despite taking all reasonable care, it would have been impossible for the complainant to know about this acquisition which was not disclosed to the complainant, neither at the time of the auction nor at the time of payment of consideration.
15.It was further contended by the respondent that the appellant herein cannot take the plea that the said auction was done on the basis of the condition of “as is what is” and “as is where is” basis. Section 55 of the Transfer of Property Act, 1882 and the judgment in case of Mrs. Leelamma Mathew v. M/s Indian Overseas Banks & Ors. were relied on by the respondent in support of this contention.
16.Lastly, it was argued that the protection under Section 32 of the SRAFAESI Act does not apply as the appellant’s actions were not done in good faith. The concealment of the property’s acquisition status and misrepresentation to the auction purchaser indicate deliberate wrongdoing. Therefore, it was submitted that the High Court has rightly refused to quash the charge sheet as the allegations in the FIR and the evidence collected during the investigation establish the necessity of trial and statutory protection cannot be used as a shield for fraudulent conduct.
17.After due consideration of the rival submissions of both the parties, the appellant’s argument as to him not being the authorized officer at the relevant time has caught our attention and calls for our deliberation.
18.It is evident that the sale certificate was issued by the appellant’s predecessor and, at the relevant time, the appellant was not the authorized officer empowered to issue the certificate. In fact, right from the initiation of the auction process to the issuance of sale certificate, no direct involvement of the appellant can be seen as he was not the authorized officer during the said period and assumed the office of Manager only in November, 2014. Therefore, it becomes clear as day that the appellant had no role to play in the transaction leading to the FIR as he was not a signatory to the sale certificate. Since the appellant was neither the authorized officer at the relevant time nor responsible for the auction process or issuance of the sale certificate, the allegations against him are baseless and do not attract criminal liability. The continuation of the instant criminal proceedings against the appellant shall lead to abuse of process of law, cause nothing but miscarriage of justice and inordinately harass the appellant who has been implicated without due cause.
19.Accordingly, in light of the above discussion, the appeals are allowed and the impugned order is set aside. The criminal proceedings against the appellant arising out of CC. No. 308 of 2016 on the file of the Judicial Magistrate No. 1, Tirunelveli are, hereby, quashed.”
In the instant case all the transactions were executed during the tenure of the accused No. 1, BK Khataniar. The decision of the Supreme court in K.
Virupaksha (supra) has also been referred to in Sivakumar (supra). It was observed that Section 32 of the SRAFAESI Act provides immunity to the secured creditors and their officers for actions taken in good faith under the Act. In this case too, right from the sanction of the loan to the issuance of sale certificate, it is apparent that the petitioners were not aware of the forged documents. During the course of the proceeding of the DRT Case No. 179/2013, the petitioners learnt about the denial of the signatures on some documents, which were forged to procure the other loans apart from the housing loan. Only the mutation case was initiated after the report of the handwriting expert forwarded on 24.09.2015.
The decision of the Supreme Court in M. N. Ojha and Others Vs. Alok Kumar Srivastav and Anr reported in (2009) 9 SCC 682 is also relevant. In this case, it has been observed that:
“12.Shri Dhruv Mehta, learned counsel for the appellants submitted that a the High Court failed to appreciate that the complaint has been lodged with a completely malicious intent to simply harass the appellants who were only discharging their duties as public servants which is nothing but an abuse of the process of law. The averments made in the complaint are totally indefinite in their nature and none of the ingredients of the offences alleged to have been committed are made out against the appellants. xxx xxx xxx xxx xxx xxx
15.The respondent complainant is one of the guarantors who guaranteed repayment of the loan obtained by the borrower. There is no dispute that the loan account became totally irregular and the Bank had been left with no option but to appropriate the FDRs along with interest accrued thereon. The action initiated was in terms of the documents executed by the complainant along with other guarantors. xxx xxx xxx xxx xxx xxx
17.We have no doubt whatsoever in our mind that the complaint dated 3-12-2003; filed by the complainant against the appellants almost after 10 months of the FIR lodged by the first appellant on behalf of the Bank is nothing but a clear abuse of the judicial process to harass the appellants. The complainant himself admitted in his complaint that the account in question was gradually becoming irregular and the Manager ought to have taken steps for sale of the hypothecated goods and appropriated the sale proceeds towards the recovery of loan amounts.
18.It is the case of the complainant in his complaint that the first appellant should have appropriated the hypothecated goods first and only thereafter steps could have been taken for recovery of the balance amount if any from the guarantors. It was alleged that the Branch Manager in conspiracy with the brother of the borrower who is none other than an employee of the Bank allowed the operation of the account till the things became "bad to worse".
19.According to the complainant, the Branch Manager conspired with the borrower and committed criminal breach of trust. Repeated assertions have been made in the complaint that all the accused persons in conspiracy with each other have diverted huge amount of bank money in a fraudulent manner for their own benefit. Surprisingly enough neither the borrower nor his brother with whom the bank officers are alleged to have colluded is arrayed as accused.
20.The complainant in his complaint freely used choicest expressions such as "fraud, collusion, conspiracy and cheating, etc." but did not make any concrete allegations against the appellants suggesting commission of any offence. That a plain reading of the complaint and taking the allegations and averments made therein to be true on their face value do not reveal the commission of any offence whatsoever by the appellants who were only taking steps to realise the amount due to the Bank from the borrower and in the process encashed the FDRs offered by the guarantors as security for the discharge of the loan. What is the crime they have committed even if they did not proceed against the hypothecated properties before realising the FDRs offered by the guarantors? Where is the misappropriation of money? Whom did they cheat? xxx xxx xxx xxx xxx xxx
23.Had the learned SDJM perused the complaint properly he would have realised that the complainant himself had made a mention about the lodging of the FIR for criminal breach of trust and other offences against the respondent complainant and others. Had he looked into the complaint f properly, he would have certainly asked the complainant to furnish a copy of the said FIR.
24.A copy of the legal notice issued on behalf of the respondent complainant to the appellants was filed along with the complaint and a mention is made about it in the order passed by the learned SDJM. Had the learned SDJM perused the said legal notice, he would have realised that the complainant himself admitted about his execution of agreement of guarantee and other documents unconditionally agreeing to discharge the loan amount in case of failure of the principal borrower to pay the said amount to the Bank. xxx xxx xxx xxx xxx xxx
30.Interference by the High Court in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure can only be where a clear case for such interference is made out. Frequent and uncalled for interference even at the preliminary stage by the High Court may result in causing obstruction in progress of the inquiry in a criminal case which may not be in the public interest. But at the same time the High Court cannot refuse to exercise its jurisdiction if the interest of justice so required where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no fair minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding. In such cases refusal to exercise the jurisdiction may equally result in injustice more particularly in cases where the complainant sets the criminal law in motion with a view to exert pressure and harass the persons arrayed as accused in the complaint.”
The instant case is also similar to the case of M. N. Ojha (supra). The bank officials, while discharging their duties, proceeded in connection with the DRT Case No. 179/2013 for the recovery of the loan and of the amount, if any, from the guarantors. In this case too, the respondent No. 2's brother, in collusion with the accused No. 1, allegedly, forged some signatures showing the respondent No.2's mother as guarantor to procure other loans apart from the housing loan.
It is an admitted fact that the respondent No.2’s mother admitted that she had stood guarantor for the housing loan, mortgaging only one Katha of the land, gifted by her to her son, Prasanta Kakoty. However, she was taken aback when she learnt that her son had mortgaged the entire land, a part of which was under her occupation and possession and rightfully belonging to her, and her legal heir, i.e. respondent No. 2. She then alleged that the bank officials are responsible for the forgery, denying her son’s involvement in the forgery.
It is true that in this case too, the complainant/ respondent No.2 freely used expressions such as “fraud, collusion, conspiracy and cheating etc.”, but did not make any concrete allegations against the petitioners, suggesting commission of any offence, apart from affixing signatures on evidence, issuing sale certificate and informing the Deputy Commissioner to draw up a proceeding, as well as going ahead with the mutation case. Prima facie, no ingredient of cheating could be made up against the present petitioners. The Trial Court thus took cognizance only under Section 417/34 of the IPC. There is no allegation of inducement for wrongful gain by deceiving any person fraudulently or dishonestly. The allegations are basically directed against the respondent No. 2's brother and the accused No. 1, Sri B K Khataniar.
This court is hesitant to delve into the merits of the proceedings of the DRT case, but it is ex facie evident that all the petitioners acted in their official capacity, while discharging their duty as bank officials and authorised officers.
In the light of the decision of the Supreme Court in M. N. Ojha (supra), this case appears to be a fit case to quash the proceedings under Section 482 of the CrPC, so far as the present petitioners are concerned.
The role attributed to the petitioners does not make out an offence of cheating under Section 417 IPC. In such a case, this court cannot refuse to exercise its inherent jurisdiction in the interest of justice, as the complaint and allegation against the petitioners indeed appear to be inherently improbable on the basis of which no fair-minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding.
Thereby, the order of cognizance dated 03.12.2019 and the Complaint C Case No. 35 /2019 so far as the present petitioners are concerned, is set aside C and quashed. This Complaint Case No. 35 /2019 will proceed against other accused.
In terms of the above observation, the present criminal petitions stands disposed of.