AI Structured Summary
Not yet generated for this judgment
Judgment
P.S. Gopinathan, J.—Petitioners, who are the accused in Crime No. 547 of 2006 of Olloor Police Station for offences under Sections 409, 418, 420, 143 & 149 of the Indian Penal Code, by this petition u/s 482 of the Code of Criminal Procedure, seek an order to quash Annexure A1 First Information Report (FIR) with a plea that the petitioners were falsely implicated and that the offences alleged in the FIR are not made out and that the investigation consequent to Annexure A1 is an abuse of the process. The brief facts of the case is that the petitioners are the Chairman, Deputy General Managers and some of the officers of the Federal Bank Limited. The second respondent, who was a business man, had the following accounts with the Bank:
ACC Motors A/c No. 116.
Car Care Company - two accounts with No. 211 and 608 &
ACC Enterprises with A/c No. 52.
Of the above, ACC Motors is a proprietary concern and other two establishments are private limited companies. The second respondent as principal debtor availed loan from the bank in A/c. No. 116 is by pledging various items of property. The second respondent is only a co-obligant in the loans availed in the name of the company in the three accounts.
The second respondent filed Annexure A3 complaint on 17.10.2006 before the Judicial Magistrate of the First Class-III, Thrissur, with an allegation that he had remitted a sum of Rs. 10,00,56,008/- in A/c. No. 116 for clearing the liabilities. Out of that amount, without the consent or knowledge of the second respondent, a sum of Rs. 4,58,18,085.04 was transferred by the petitioners to the account of AC Care Motor Private Limited for which the second respondent had no control and that the said Company was on the verge of liquidation and knowing that the liquidation process was in progress, the amount was transferred with the intention to cause wrongful loss to the second respondent by selling the properties hypothicated in A/c. No. 116 and that it was done so by the petitioners in furtherance of a criminal conspiracy and that their action amounted to the above mentioned offences and the offences were committed at the house of the 2nd respondent at Ollur. The learned magistrate forwarded the complaint to the Station House Officer, Olloor Police Station, u/s 156(3) of the Code of the Criminal Procedure (Cr.P.C) basing upon which Annexure A1 FIR was registered.
According to the petitioners, a similar complaint was filed on 20.9.2006 before the Chief Judicial Magistrate, Thrissur, alleging that the offences were committed by the petitioners at their office at Sakthan Thampuran Nagar, which is within the limits of the East Police Station, Thrissur. Annexure A2 is the complaint. The learned magistrate posted the complaint for enquiry u/s 202 Cr.P.C. It is suppressing that fact, Annexure A3 complaint was filed and later Annexure A2 complaint was allowed to be dismissed by Annexure A4 order dated 2.11.2006 since the second respondent remained absent from court. As stated earlier, Annexure A3 complaint was filed on 17.10.2006 as if the offence alleged occurred at the house of the second respondent which is within the territorial limits of the Olloor Police Station. Basing upon Annexure A2 and A4, the petitioner would contend that the second respondent had been forum shopping by filing complaint from one court to another with identical plea and asserting separate jurisdiction. The petitioners would further contend that the complaint itself is an attempt to see whether the second respondent could stall the proceedings initiated by the Bank under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 1982 (SARFAESI) for recovery of debt and that when the Bank initiated proceedings for recovery, the 2nd respondent and other related persons moved this Court invoking jurisdiction under Article 226 of the Constitution of India and obtained various relief''s on conditions and the 2nd respondent and others failed to comply with the conditions imposed by this Court in Annexure A6 judgment in W.P.(C) 16939/2005, W.A. 1449/2005, W.P.(C) 19945/2006 and W.P.(C) 20483/2006 and that the allegations made in Annxures A2 and A3 complaints were never raised before this Court in the writ proceedings. Annexures A6 and A14 are the copies of the judgments in W.P.(C) 16939/2005 and W.P.(C) 19945/2006 dated 10.6.2005 and 4.8.2006. Annexures A8 and A11 are the copies of the orders dated 19.7.2005 and 13.6.2006 respectively in W.A. 1449/2005. Annexure A10 is the copy of the affidavit in W.A. 1449/2005 and Annexure A12 is the copy of the affidavit filed by the second respondent in W.A. 1449/2005. Annexure A15 is the copy of W.P.(C) 24831/2006.
Going by Annexure A6, A8 and A10 to A15, I find merit in the submission made by the petitioners. Annexure A6 would show that when the Bank initiated recovery proceedings the second respondent moved the writ petition seeking a direction to the Bank to consider the settlement of liability under One Time Settlement (OTS) introduced by the Reserve Bank of India. By Annexure A6 judgment, this Court granted relief on condition that the second respondent should deposit rupees one crore by 30.6.2005 and apply for OTS. In the event there was failure to make the deposit as above, the Bank was authorised to continue the recovery proceedings under the SARFAESI Act. Thereupon, the Bank communicated AnnexureA7 letter dated 18.6.2005 agreeing for settlement of the entire liability in respect of the five accounts mentioned thereunder for a total sum of Rs. 1,500 lakhs by five instalments as follows:
i. Rs. 100.00 Lakhs on or before 30.6.2005.
ii. Rs. 300.00 Lakhs on or before 30.9.2005.
iii. Rs. 300.00 Lakhs on or before 31.12.2005.
iv. Rs. 400.00 Lakhs on or before 31.3.2006.
v. and the remaining amount of Rs. 400 lakhs on or before 30.6.2006.
The second respondent was not amenable for the suggestion made in Annexure A7 whereupon the Bank preferred W.A. 1449/2005 assailing Annexure A6 judgment. Before the Division Bench, the second respondent agreed to comply with the conditions laid down in Annexure A7 letter. Accordingly, Annexure A8 order dated 19.7.2005 was passed by the Division Bench recording that the second respondent had already deposited rupees one crore and should deposit rupees three crores on or before 30.9.2005 as demanded in Annexure A7. On 5.2.2006, Annexre A9 letter was sent by the second respondent to the Deputy General Manager intimating that already a sum of Rs. 5.10 crores was deposited and in the meanwhile, the State Bank of India had come forward to advance a sum of Rs. 2.40 crores and sought for issuing a No Objection Certificate. Annexure A10 is the copy of the petition along with the affidavit filed by the second respondent in W.A. 1449/2005 seeking an order for referring the matter to the Lok Adalath. On 13.6.2006, in W.A. 1449 /2005, this Court issued Annexure A11 order directing the second respondent to file an affidavit regarding the payments made by the second respondent. Annexure A12 is the affidavit filed in compliance to Annexure A11 order wherein it is stated that till then there was payment of Rs. 10 crores. The details of the payments are shown in Annexure A13. In the meanwhile, the second respondent and others preferred W.P.(C) 19945/2006 assailing the proceedings initiated under the SARFAESI Act. In that proceedings, the second respondent and others, who are the petitioners, agreed to pay the amount demanded by the Bank without prejudice to their right to dispute the quantum in appropriate proceedings. Therefore, by Annexure A14 judgment, the writ petition was disposed granting six weeks time to the petitioners to make payment failing which the Bank was given freedom to continue the proceeding under the SARFAESI Act. Thereafter, W.P.(C) 24831/2006, copy of which is produced as Annexure A15, was filed seeking declaration that Annexure A6 judgment which was produced as Ext.P1 in the writ proceedings had become final in view of the dismissal of W.A. 1449/2005 and seeking a writ of mandamus or other appropriate writ, direction or order directing the Bank not to take possession the assets of the petitioners. In these writ petitions and writ appeal the second respondent had no case of any transfer of the amount deposited by him in Account No. 116 to any other account; whereas he invoked the writ jurisdiction of this Court on various occasions seeking one remedy or other including directing the Bank to agree for OTS and for payment of the liability in all the accounts in instalments.
Annexure A5 is a letter dated 14.7.2004 requesting the Deputy General Manager of the Bank for settlement under OTS. A look at Annexure A5 would show that Account No. 116 in the name of ACC Motors (Proprietorship) was converted to Private Limited Company. In Annexure A5 also, the request was for settlement of all liabilities in six accounts stated therein. It is also mentioned in Annexure A5(a) that accounts of ACC Motors was subsequently converted to A.C. Care Motors (P) Limited. If the statements in Annexure A5 and A5(a) that the account of ACC Motors was converted to A.C Care Motors (P) Ltd are true the plea now advanced in Annxure A3 complaint basing upon which Annexure A1 case was registered is without any bona fides. On the other hand, malafides are evident because the payments stated in Annexure A3 are subsequent to Annxure A5 and A5(a) and the remittance, if any made to account No116 can only be to the account of A.C. Care Motors Pvt. Ltd. There is no case for the second respondent in any of the three writ petitions mentioned earlier filed by him that any payment made by him in pursuance to the orders of this court in the writ proceedings were made to any particular account whereas the prayer of the second respondent in all the writ petitions are for OTS of all the five or six accounts wherein the second respondent is either the principal debtor or a co-obligant. Though there is no mention about the date of payments of the amount mentioned in Annexure A3, in Annexure A2 it is stated that the payments which the petitioners had converted to the other accounts were made between 3.6.2005 to 30.5.2006. All the above payments were made during the pendency of the above three writ petitions and appeal. There was no case for the second respondent in the above proceedings about any breach of trust or cheating or criminal conspiracy or any unlawful assembly for committing breach of trust or cheating as alleged in the complaints. Therefore, malafides are very evident on the side of the 2nd respondent in launching Annexure-A3 complaint.
As mentioned earlier, Annexure A3 complaint was filed before the Judicial Magistrate of the First Class-III while Annexure 2 complaint pending enquiry before the Chief Judicial Magistrate. Annexure A2 is dated 20.9.2006. Annexure A3 is dated 17.10.006 and it was forwarded to the police u/s 156(3) Cr.P.C. on the same day. It is thereafter on 2.11.2006, by Annexure A4 order, Annexure A2 complaint was dismissed for failure of the second respondent to appear for enquiry u/s 202 Cr.P.C. In that conduct also, malafides are evident on the side of the 2nd respondent. In the above circumstance, I find merit in the submission made by the petitioners herein. Annexure A3 complaint and all further proceedings thereon are abuse of the process. Therefore, the petitioners are entitled to get Annexure A1 FIR quashed u/s 482 Cr.P.C.
In the result, this petition is allowed and Annxure A1 FIR and all consequential proceedings thereon would stand quashed.