ABSTRACT
At this stage, it is natural to state that the power of Section 156(3)[1] justifies the use of judicial reasoning. Courts are involved. It is not the police who are acting at the stage of Section 154[2] of the Code. Litigants are not free to exercise the powers of a magistrate. A principled and truly troubled citizen with clean hands must have free access to summon that power. But it protects citizens when perverse legal controversies unfold. If they are harassing fellow citizens in this way, attempts should be made to submerge them and contain them.
INTRODUCTION
The defendants are serving in high-level positions in the bank in this case. Nobody is above the law, regardless of their status. However, the respected magistrate should consider the claims in their whole, the date of the occurrence, and whether a cognizable case is even made out. It should also be noted that when a borrower of a financial institution covered by the SARFAESI act[3] invokes the jurisdiction under section 156(3) CRPC, as well as when there is an independent process under the recovery of debts due to banks and financial institutions act, 1993, a mindset of greater care, caution, and circumspection must be maintained.
FACTS OF THE CASE
- Defendant #3, Prakash Bajaj, son of Pradeep Bajaj, took out a mortgage on 21 January 2001 from Punjab National Bank Housing Finance Limited (PNBHFL).
- A loan was taken in his and his wife Jyotsna’s names.
- A late instalment payment will be treated as a non-performing asset (NPA).
- The authority had issued a notice pursuant to section 13(2)[4] of his SARFAESI act of 2002.
- This application was filed by PNBHFL and was submitted before Varanasi state DM to take necessary action under section 13(4)[5] of the act.
- A written petition was filed by the defendant as the appeal was dismissed by the high court.
- Respondent #3 filed a criminal complaint under section 200 of the CRPC against Sahay, Sandesh Tiwari, and VK Khanna for offences punishable under sections 163[6], 193[7], and 506[8] of the IPC (Indian Penal Code,), but the magistrate dismissed the complaint after taking cognizance, hearing the complainant, and examining witnesses.
- He filed a revision petition with the additional sessions judge, who received the case and overturned the previous ruling, remanding it to the trial court with the directive that the complaint be heard fresh, and an order be issued on the merits of the case.
- Accused persons have not been notified herein, which needs to be taken into account, as held in Muljhibhai Kakadia & anr v Shailesh Bhai Patel, where parliament holds the legal position that the accused/suspects are not entitled to be heard at any stage of the proceedings until the initiation of the proceedings under section 204[9], but under section 401(2)[10] of the code, provided that no order in the exercise of appellate authority shall be made by the sessions judge or the high court, as the case may be, to the disadvantage of the accused or the other person, unless , he had occasion to be heard in person or by a plea in his own defence.
- SC found that an application for revision brought by the complainant in the high court or the sessions judge challenged an order of the magistrate to bring the complaint under section 203[11] of the code at the section 200[12] stage or after that provided for in section 202[13] according to the code, the accused or a person suspected of having committed the crime has the right to be heard by the court of appeal. This simply shows that a borrower with revenge could show their hubris.
ISSUES OF THE CASE
- Three people have been summoned. The accused approached the high court under section 482[14] of the CRPC, and the motion was granted, and the criminal complaint matter pending in add CJM was dismissed. Meanwhile, borrowers made an objection under section 13(3A)[15] of the SARFAESI act, which was dismissed, and then filed a securitisation appeal before the debt recovery appellate tribunal, Allahabad, which was refused, and an appeal was filed at the DRAT[16].
- The respondent did not stop there and filed another application under section 156(3) of the CRPC against the accused, claiming criminal conspiracy and document forgery. He also lodged an additional complaint alleging property undervaluation, and the FIR was filed against the defendants.
- Following the lodging of all these applications, he attempted to reach a one-time compromise with the officials, which was accepted, and he handed Rs 15 lakh.
- Meanwhile, as previously indicated, the DRAT ruling said that because the settlement was for Rs 15 lakhs, the appellant’s grievance (res 3) is that the bank should be directed to restore the deed, as it was not returned.
ARGUMENTS OF THE APPELLANT AND RESPONDENT(BANK)
- After paying the full settlement amount, the defendant banks were obliged to return the title deeds, which were not returned to the applicants.
- The defendant banks have asserted their acceptance of the settlement, stating that it is conditional on the petitioner’s withdrawal of the complaint filed with the criminal court.
- Applicant’s attorneys said they had no objection to the withdrawal of the complaint, but that the title deed must be returned to the applicant. The title deed must be returned to the petitioner from the defendant’s bank within seven days from today, after which the petitioner submits an application seeking dismissal of the pending criminal case to the chief judicial magistrate of Varanasi.
- However, he seems to have had the fortitude to indulge in judicial abuse. Defendant #3 filed section 156(3) CRPC. On October 30, 2011, a learned additional chief judicial magistrate filed a case against the current petitioner, but in fact no case was registered with the police department as his FIR was not registered.
- Additional CJM states: the other party has deliberately failed to deposit the previously mentioned post-dated checks because of conspiracy and prejudice against the applicant, and these individuals are conspiring to seize the applicant’s valuable property. A petition was filed with the Varanasi district tax collector (finance and revenue) on illegal and falsely fabricated grounds as part of a criminal conspiracy falling within the scope of a recognizable criminal offense. Considering the facts, there appears to be recognizable criminal activity taking place, and it is reasonable for the police to investigate it.
- In response to a FIR filed for offences punishable under sections 465[17], 467[18], and 471[19] of the IPC, the appellants sought intervention from the high court; however, it chose not to do so, and an appeal was subsequently filed as an SLP.
- The investigative agency, according to the state of Uttar Pradesh’s legal representative, has already turned in the final report because the complainant in this instance “has not appeared before any of the investigators, even after repeated summoning.” And that smt. Priyanka Srivastava’s activity was taken in “good faith,” which is protected by section 32[20] of the SARFAESI act of 2002, and in accordance with her legal rights. The investigations mentioned above bring the present report to a close.
- Applicant’s attorney, Ajay Kumar, said the magistrate has the option to accept the report by submitting the final form/report under CRPC Section 190[21]. Also, because it can take proceedings against the applicant or notify the applicant entitled to object and then proceed with the matter, this court is not required to hear the controversy in question and halt the proceedings.
- The supreme court ruled that legal remedies had been cleverly routed, prosecution routes were used to diffuse fear in individual institutions, and that financial institutions may not have allowed a one-off settlement offer. Separately, despite agreeing to withdraw the complaint, no steps were taken to at least prove credibility. Exercised and issued an order to register an FIR for the offenses identified in the application without a statement of intent.
JUDGEMENT OF THE CASE
If, upon reading the report, he finds that the allegations contained therein reveal a recognizable criminal offence, forwarding the report to the police for investigation pursuant to section 156(3) will benefit the judiciary and save valuable magistrate time wasted in investigating a matter , which was primarily the job of the police, he will be entitled to take this route as an alternative to learning about the crime himself. However, once he gains such knowledge and initiates the procedure embodied in chapter XV, he has no authority to return to the prior knowledge phase and avail himself of section 156(3). It is thus unequivocally clear that registration of FIR is mandatory and that it must be recorded in the FIR book by assigning each FIR a unique year number to ensure strict tracking of each registered FIR by senior police officers as well as the competent court to which copies of each FIR must be sent.
In this case, the defendant holds an elevated position in the bank. No one is above the law, so the position itself does not matter. But a learned magistrate should be incredibly careful about allegations, event dates, and whether identifiable incidents are far apart. Please also be aware that you rely on jurisdiction under section 156(3). There are also other procedures under the debt recovery by banks and financial institutions act 1993, in which an attitude of greater care, caution and prudence must be observed.
It encourages unscrupulous and unprincipled litigants like defendant #3, Prakash Kumar Bajaj, to take drastic steps in court to bring financial institutions to their knees.
CONCLUSION
The country has entered the stage where CRPC Section 156 (3) applies. The application must be supported by a duly declaration of facts by the applicant seeking to invoke magistrate jurisdiction. A learned magistrate is well advised to verify the truth and can also verify the veracity of the allegations. This declaration of facts can make the applicant more accountable. These types of requests are routinely made without liability solely for the purpose of harassing a particular individual. It becomes even more disturbing and alarming when trying to arrest a person issuing an order under a statutory provision that could be invoked. However, it should not be overused in criminal court, as if it were determined to settle the score. A section 154(1)[22] and 154(3)[23] applications are required prior to filing a section 156(3) application. Both aspects must be clearly stated in the application and required supporting documents submitted. Since an application under section 156(3) is supported by a declaration of facts, the applicant should be careful not to submit a false declaration of facts and endeavour to ensure that it is submitted. Because as soon as the declaration of facts is found to be false, he will be punished under the law. This will prevent him from casually exercising the magistrate’s powers under section 156(3).
Referring to section 32 of his SARFAESI act, which speaks to the protection of actions taken in good faith, congress has wisely made such provisions to protect secured creditors or their officers, and legislative it must be emphasized that the intent should be kept in mind.
The HC order has been cancelled and the FIR registration has been revoked.
Written by- Kaynaat Rana intern under legal vidhiya
[1] Police officer’s power to investigate cognizable cases
[2] Information in cognizable cases
[3] Securitization and Reconstruction of Financial Assets and Enforcement of Security Interests
[4] Provisions that help banks and financial institutions to recover their dues from defaulting borrowers
[5] Some reliefs to the borrowers
[6] Punishment for taking a gratification for exercise of personal influence with a public servant
[7] Punishment for false evidence
[8] Punishment for criminal intimidation
[9] Destruction of document or electronic record to prevent its production as evidence
[10] No order unless the accused or the defendant has had an opportunity of being heard
[11] Appointment of key managerial personnel
[12] Questioning of both the parties by the magistrate
[13] Postponement of issue of process
[14] Saving of inherent powers of the High Court
[15] No borrower can transfer without previous written consent of the secured creditor
[16] Debts Recovery Appellate Tribunal
[17] Punishment for forgery
[18] Forgery of valuable security, will etc
[19] Whosoever uses forged document as genuine
[20] Protection of action taken in good faith
[21] Gives magistrate authority to issue summons against individuals who have not been named as suspects
[22] Any information provided to the police officer regarding cognizable offences shall be written down by him or under his guidance
[23] Any aggrieved person on refusal on the part of police to not record the information may send the same in writing and by post to Superintendent of Police
