TMI Blog2022 (11) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... an amount issued notice under Sections 13(2) read with Section 13(13) of the SARFAESI Act demanding a sum of Rs. 34,86,706/-. In reply dated 21.10.2020 to the aforesaid notice the complainant, in addition to other relevant facts, informed the death of one of the partners who was also one of the drawer of the cheque namely Indrajit Mukherjee, to HDB Financial Services Limited. In the case at hand it is found that the complaint disclose a cognizable offence and therefore bearing in mind the aforesaid observation of the Hon ble Court in order to unearth the veracity of the allegation made in the complaint thorough investigation is required and as such there cannot be any justification to stop the investigation at a nascent stage. Accordingly, the argument advanced on behalf of the petitioner falls short of merit. Undisputedly seven numbers of blank cheques were handed over to the Finance company at the time of disbursement of loan. It is also found that the cheque in question was placed for encashment after the demise of one of the drawer of the cheque and an inflated value has been incorporated in the cheque which is at variance to the amount demanded by way of notice under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer of the Finance Company and others including the Finance Company alleging, inter alia, as follows. (i) The representatives and agents of HDB Financial Services Limited from its Siliguri Branch sometime in the year 2015 approached the husband of the complainant late Indrajit Mukherjee with a proposal of credit facilities to the firm namely Shree Techno Services on certain terms and conditions. (ii) On such representation of HDB Financial Services Limited the firm namely Shree Techno Services through late Indrajit Mukherjee availed loan facilities from the HDB Financial Services Limited by way of two loan accounts being no.1190917 amounting to Rs. 60,77,261/- and no. 4440752 amounting to Rs. 30,00,000/- respectively. (iii) For availing the aforesaid loans the firm mortgaged its property measuring 7.84 cottahs of land comprised within mouza-Thiknikata, Matigara, District-Darjeeling by depositing the original deeds and other relevant documents to the HDB Financial Services Limited. The complainant and her late husband also delivered seven blank cheques bearing nos. 118635 to 118641 drawn on Axis Bank Ltd, SF Branch, Siliguri unto the agents/officers of HDB Financia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 138 of the Negotiate Instruments Act, 1881 contending dishonour of cheque bearing no. 118460 dated 10.12.2020 amounting to Rs. 50,77,261/-. (xii) In order to satisfy the unjust demands the accused illegally used one of the blank cheques of the Axis Bank that was delivered to them by the complainant and her late husband for availing credit facilities by collectively forging the date, amount and the name of the payee in the said cheque. (xiii) The aforesaid cheque is outdated and the amount demanded under the Negotiable Instruments Act is much more than the earlier demand made under the SARFAESI Act which plainly shows dishonest and fraudulent demands. (xiv) On such basis the complainant filed the petition praying for sending the same to the Officer-in-charge, Matigara Police Station for causing investigation by treating the same as FIR under Section 156(3) of the Code. (xv) Upon considering the materials on record and the allegations made in the petition the learned Additional Chief Judicial Magistrate, Siliguri by order dated 06.02.2021 allowed the prayer of the opposite party no.2-complainant and directed officer-in-charge, Matigara Police Station to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal proceeding has been made with an ulterior motive of wreaking vengeance and pre-empt the filing of the criminal complaint against her under Section 138 of the said Act by the Finance Company. Thus, as in order to pre-empt the impending proceeding under Section 138 of the said Act the complainant has initiated the present case hence it would be an abuse of process of court to continue with the instant proceeding and it needs to be quashed. He has placed reliance on the decision of Hon ble Supreme Court passed in Sunil Kumar versus Escorts Yamaha Motors Ltd and Others reported in (1999) 8 SCC 468 and Mahindra Mahindra Financial Services Limited and Another versus Rajiv Dubey reported in (2009) 1 SCC 706 and decision of this Hon ble Court passed in Philips Lighting India Ltd versus State of West Bengal and Ors reported in MANU/WB/1325/2017. Moreover it is submitted that in the petition under Section 156(3) of the Code filed by opposite party no.2-complainant no specific role has been ascribed to the petitioner attaching vicarious liability on his part. In a criminal proceeding where a company is the accused, its Directors can be roped only if there is sufficient incri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in CRR 987 of 2021 vide order dated 30.04.2021. Moreover it is submitted that the complainant s firm also filed an application before the Debts Recovery Tribunal, Siliguri being SA/46/2022. The HDB Financial Services Limited inspite of service of notice did not appear. Upon hearing the learned tribunal by order dated 23.05.2022 restrained the Finance company from proceeding further under the SARFAESI Act till appearance and filing written objection in the case. He further submitted that it is not possible for the opposite party no.2-complainant, by her individual capacity, to ascertain and know of the specific role played by different persons including the petitioner in forging and preparing a false document namely the cheque, which was presented for encashment, for the reason that the cheque in question was in the custody of the Finance Company of which the petitioner is the Managing Director and therefore in order to find out the extent of involvement and the role played by different persons in the alleged offence a thorough investigation by the police authority is very much required in the interest of justice. In the light of his aforesaid submissions he prayed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed in Amit Ahuja (supra), Amrinder Singh @ Raja (supra) and Samantha Christina Dellfina Willis (supra) argued that an application for quashing under Section 482 of the Code is not maintainable at the instance of a power of attorney holder. Per contra Mr Banerjee, learned advocate for the petitioner placing reliance on the Appellate Side Rules of this High Court submitted that the application for quashing is maintainable at the instance of constituted attorney. In order to consider the rival contention of the parties it would be appropriate to look to relevant Appellate Side Rules of this Court. Rule 8 of Chapter IV of Appellate Side Rules of this Court (General Rules for Applications and Affidavits) provides that every application shall be signed and dated either by the applicant or declarant or his advocate. Therefore it goes without saying that an application for quashing under Section 482 of the Code filed by the constituted attorney of the petitioner, who is also the declarant as well of the instant application, has been made in accordance with the Appellate Side Rules of this Court and is maintainable as per the said Rules. Some decisions of other High Courts have been relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of submitting the cheque for encashment has not been denied by the petitioner. Accordingly, it appears that inspite of such knowledge of death of one of the partners, who was also one of the drawer of the cheque, the HDB Financial Services proceeded to place the cheque for encashment when the current account was closed due to such death. Further it is also found that the demand made by the HDB Financial Services Limited in its notice under the SARFAESI Act is at variance with the amount demanded under the Negotiable Instruments Act. Undisputedly both the loan accounts being no.1190917 amounting to Rs. 60,77,261/- and no. 4440752 amounting to Rs. 30,00,000/- respectively were secured under insurance coverage of HDFC Life Insurance Company Limited against any untoward future eventuality. It appears from the legal notice dated 3 August 2020 issued on behalf of opposite party no.2-complainant that after the demise of one of the partners of Shree Techno Services, the opposite partyno.2-complainant by letter dated 28 August 2019 arranged to submit two separate HDFC life claim form duly filled up through the representatives of the HDB Financial Services, Siliguri Branch in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible for the complainant to know of specific role of the petitioner or any other person in such incorporation in the blank cheque as those were in the custody of the Finance Company of which the petitioner is the Managing Director Chief Executive Officer as has been rightly argued by Mr Mitruka, learned advocate for opposite party no.2-complainant. 10. Mr Banerjee, learned advocate for the petitioner relying on the decision of Hon ble Supreme Court passed in Sunil Bharti Mittal (supra) and Maksud Saiyed (supra) has argued that in a criminal proceeding where a company is the accused, its Directors can be roped only if there is sufficient incriminating evidence against them coupled with criminal intent or the statutory regime attracts the doctrine of the vicarious liability and as no specific role has been ascribed to the petitioner attaching vicarious liability on his part hence the proceeding needs to be quashed. It is pertinent to note that the investigation of the case is underway. Whether the petitioner being the Managing Director Chief Executive Officer of the company has any role in the alleged offence can be deciphered only on the conclusion of investigation. Further t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no preliminary inquiry is necessary. In order to appreciate the issue raised on behalf of the petitioner it would be apposite to reproduce the concluding observation made by Hon ble Supreme Court in its decision passed in Lalita Kumari (supra) which is as follows. 120. In view of the aforesaid discussion, we hold: 120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. 120.2. If the information received does not disclose a cognizable office but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. 120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. 120.4. The police officer cannot avoid his duty of registering off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preliminary inquiry is permissible in such a situation. This Court in its decision passed in CRR 1383 of 2021 and CRR 1534 of 2021 cited on behalf of the petitioner has held that the observation of the Hon ble Supreme Court in Lalita Kumari (supra) does not suggest for holding preliminary inquiry mandatorily. Therefore the argument advanced on behalf of the petitioner throwing challenge to the proceeding on the ground of absence of holding preliminary inquiry by the investigating agency does not hold good. 12. It has been strenuously argued on behalf of the petitioner that admittedly the complainant and her late husband handed over the cheque in question to the Finance company at the time of disbursement of loan and as such the allegation of forgery is far-fetched. On issuance of a cheque statutory presumption arises that it has been issued in discharge of existing debt or liability in whole or in part as per Section 139 of the Act and it is for the trial magistrate before whom such case is pending to decide whether the demand raised in respect of the said cheque is legal, valid and enforceable or not. Having heard the learned advocate for the petitioner on this issue, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, on such ground power under Section 482 of the Code can be invoked. As far as the present case is concerned the complaint does disclose an offence. Further the Hon ble Court in the aforesaid decision held that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. It is pertinent to note that the present case at hand is not at all a rarest of rare case. 15. It is settled principle of law that at the stage of quashing FIR or complaint it is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein unless they are so absurd and inherently improbable that no prudent man can ever reach to just conclusion. ( See Rupan Deol Bajaj (Mrs) and Another versus Kanwar Pal Singh Gill and Another reported in (1995) 6 SCC 194). It is placed on record that there is neither any absurd or inherent improbability noted in the facts of the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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