TMI Blog2009 (8) TMI 1239X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the bank to appropriate the proceeds of FDRs along with interest if the timely payments are not made by the borrower. Each one of them had also executed and signed Agreement of guarantee jointly and severally guaranteeing to pay the bank after demand in writing all principal, interest, costs, charges and expenses due and which may at any time become due to the bank from the borrower, on accounts opened in respect of the said limits down to the date of payment and also all loss or damages, costs, charges and expenses occasioned to the bank by reason of omission, failure or default temporary or otherwise in such payment by the borrower. The guarantors further agreed that the bank may enforce the guarantee without enforcing, selling or realizing any of the securities kept under lien, hypothecated, pledged or mortgaged with it, notwithstanding that any bills or other instruments given by the borrower in the said account may be in circulation for collection and outstanding. 4. The bank in the month of March, 2000 having realized that the loan account became totally irregular since the borrower was not paying any amount whatsoever as undertaken in terms of the agreement. On 26.3.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of the Code of Criminal Procedure in the High court of Judicature at Patna to quash the criminal proceedings initiated against them by the respondent-complainant. The High Court disposed of the said petition summarily without assigning any reasons whatsoever in the following manner: Having considered the materials on record and facts stated in the complaint petition, I do not find any merit in this application and so the impugned order does not require any interference. The facts are to be examined and duly considered at the appropriate stage of trial. Hence this appeal. SUBMISSIONS:- 10 Shri Dhruv Mehta, learned counsel for the appellants submitted that 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. It was also contended that the summoning order has been passed by the learned SDJM wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated assertions have been made in the complaint that all the accused persons in conspiracy with each other have diverted huge 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. 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 realize 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 realizing the FDRs offered by guarantors? Where is the misappropriation of money? Whom did they cheat? 13. In our considered view, criminal law has been set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. The case on hand is a classic illustration of non-application of mind by the learned Magistrate. The learned Magistrate did not scrutinize even the contents of the complaint, leave aside the material documents available on record. The learned Magistrate truly was a silent spectator at the time of recording of preliminary evidence before summoning the appellants. 15. The High Court committed a manifest error in disposing of the petition filed by the appellants under Section 482 of the Code without even adverting to the basic facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the borrower as well as the guarantors. The complaint obviously has been filed as counter blast to the proceedings already initiated by the bank including the first information report lodged by the first appellant against the complainant and the borrower for the offences of cheating and misappropriation. Sequence of events undoubtedly suggests that the criminal proceedings have been maliciously instituted with an ulterior motive of wreaking vengeance on the appellants and with a view to spite them due to personal grudge. It was clearly intended to prevent the public servants from discharging their duties. The criminal law has been set in motion by the learned SDJM by mere asking to do so by the complainant. The High Court almost abdicated its duty in refusing to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure though the case on hand required its interference in order to prevent abuse of the process by a court subordinate to it. A clear case is made out requiring our interference to secure the ends of justice. 17. For all the aforesaid reasons, the impugned order of the High Court is set aside and the criminal proceedings arising out of Complain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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