TMI Blog2017 (3) TMI 1926X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the complaint, the magistrate should satisfy himself upon proper materials that a case is made out for the issue of process. Though under the law, a wide discretion is given to magistrate with respect to grant or refusal of process, however, this discretion should be exercised with proper care and caution. Under the terms and conditions, when the Kotak Mahindra Bank was already in an agreement with the Respondent-Company in order to safeguard its interest, the fact of the Assignment Deed between the State Bank of Travancore and the Kotak Mahindra Bank with regard to alleged rights of the State Bank of Travancore pertaining to the immovable properties allegedly mortgaged in its favour, must be communicated by the State Bank of Travancore to the Respondent-Company. More so, the fact of such assignment deed must also be brought to the notice by the Kotak Mahindra Bank to the Respondent-Company when it was responsible to provide necessary assistance to the Respondent-Company. The position becomes more clear from the fact that even after the alleged assignment, in a proceeding before the appellate tribunal, none of the representative of the State Bank of Travancore mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grawal and Adarsh Kumar Goel, JJ. For the Appellant : T.R. Andhyarujina, Sr. Adv., A.V. Rangam and D.V. Raghu Vamsy, Advs. For the Respondents : Aniruddha P. Mayee, Adv. JUDGMENT R.K. Agrawal, J. 1. This appeal has been filed against the judgment and order dated 07.01.2011 passed by the High Court of Judicature at Bombay in Criminal Writ Petition No. 1279 of 2010 whereby learned single Judge of the High Court dismissed the writ petition filed by the Appellants herein. 2. Brief facts: (a) The complainant-Respondent Company borrowed a sum of Rs. 900 lakhs comprising Rs. 180 lakhs through cash credits from the consortium of Banks (of which the State Bank of Travancore was the lead bank) and a sum of Rs. 720 lakhs being working capital demand Loan. Due to non-payment of the loan amount, the account became Non-Performing Asset. In order to recover the amount against the borrower, the State Bank of Travancore filed OA No. 96 of 2003 before the Debts Recovery Tribunal (DRT), Mumbai. On 22.07.2005, the DRT passed a partial decree awarding a sum of Rs. 812.26 lakhs with 12 per cent interest. (b) On 29.03.2006, the State Bank of Travancore assigned the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade, Mumbai Under Sections 409, 418, 423 and 425 read with Section 120-B of the Indian Penal Code against the State Bank of Travancore, Kotak Mahindra Bank Limited and its officers. The Metropolitan Magistrate, I/C ACMM, 8th Court, Esplanade, Mumbai, vide order dated 25.01.2008, issued process against the officers of the State Bank of Travancore and Kotak Mahindra Bank Limited. On 11.05.2008, learned Magistrate excluded the officers of the Kotak Mahindra Bank Limited in view of an application filed by the Respondent-Company to withdraw the complaint against them. (f) Being aggrieved, the Appellants herein preferred a Criminal Writ Petition being No. 1279 of 2010 before the High Court. On 07.01.2011, learned single Judge of the High Court, dismissed the writ petition filed by the Appellants herein for setting aside the order of issue of process by learned Magistrate dated 25.01.2008 against the Appellants. (g) Aggrieved by the order dated 07.01.2011, the Appellants have preferred this appeal by way of special leave. 3. Heard the arguments advanced by Mr. T.R. Andhyarujina, learned senior Counsel for the Appellants and Mr. Aniruddha P. Mayee, learned Counsel for the State an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Assignment Deed dated 29.03.2006 on behalf of the State Bank of Travancore. He further submitted that in such a scenario, the Appellants herein, being the principal perpetrators, actively connived and colluded with the Kotak Mahindra Bank and its officers with a common intention to deceive the Respondent-Company in order to make wrongful gains. Learned Counsel further submitted that the active collusion and conspiracy between both the Banks hatched together deliberately with a view to deceive the Respondent-Company is also evident from the fact that in the alleged assignment deed dated 29.03.2006, there was a clear undertaking under Clause 2.3 that simultaneously with the execution of the said deed, the State Bank of Travancore must send a notice addressed to the Respondent-Company herein informing it of the assignment of the alleged debts and the financial instruments to the Kotak Mahindra Bank. 7. Learned Counsel for the State further submitted that the State Bank of Travancore was duty bound to protect the interest of the Respondent-Company as the Bank was entrusted with certain properties of the Respondent-Company. By entering into such alleged assignment with deliberate s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mahindra Bank Limited, wherein all the dues of Ravishankar Industries Pvt. Ltd. of more than Rs. 32. crores were assigned to the Kotak Mahindra Bank. Under the agreement, it was agreed that any amount received over and above Rs. 90 lakhs from the Company would be shared equally between the Respondent-Company and Kotak Mahindra Bank. The Kotak Mahindra Bank withdrew the proceedings filed by the Respondent-Company Under Section 138 of the Negotiable Instruments Act against the Ravishankar Industries Pvt. Ltd. and also settled an amount of Rs. 225 lakhs without giving any information to it as to the terms of settlement and the mode of payment. It is the allegation of the complainant that if the complainant was informed about the alleged Assignment Deed dated 29.03.2006, it would not have entered into the assignment agreement on 11.01.2007 with the Kotak Mahindra Bank. It is alleged that the suppression of facts and surreptitious execution of the deed of assignment dated 29.03.2006 was deliberately done with a dishonest intention to induce the complainant-Company and to make wrongful losses and to deceive it. 11. Learned senior Counsel for the Appellants contended that the allegatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 13. In support of his claim that the transactions between the complainant and the State Bank of Travancore were purely civil in nature and criminal court has nothing to do with it, learned senior Counsel for the Appellants further relied upon a decision of this Court in Sardar Trilok Singh and Ors. v. Satya Deo Tripathi (1979) 4 SCC 396 wherein it was held as under: 5.....The question as to what were the terms of the settlement and whether they were duly incorporated in the printed agreement or not were all questions which could be properly and adequately decided in a civil court. Obtaining signature of a person on blank sheet of papers by itself is not an offence of forgery or the like. It becomes an offence when the paper is fabricated into a document of the kind which attracts the relevant provisions of the Penal Code making it an offence or when such a document is used as a genuine document. Even assuming that the Appellants either by themselves or in the Company of some others went and seized the truck on July 30, 1973 from the house of the Respondent they could and did claim to have done so in exercise of their bona fide right of seizing the truck on the Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 16. When a person files a complaint and supports it on oath, rendering himself liable to prosecution and imprisonment if it is false, he is entitled to be believed unless there is some apparent reason for disbelieving him; and he is entitled to have the persons, against whom he complains, brought before the court and tried. The only condition requisite for the issue of process is that the complainant's deposition must show some sufficient ground for proceeding. Unless the Magistrate is satisfied that there is sufficient ground for proceeding with the complaint or sufficient material to justify the issue of process, he should not pass the order of issue of process. Where the complainant, who instituted the prosecution, has no personal knowledge of the allegations made in the complaint, the magistrate should satisfy himself upon proper materials that a case is made out for the issue of process. Though under the law, a wide discretion is given to magistrate with respect to grant or refusal of process, however, this discretion should be exercised with proper care and caution. 17. The Respondent-Company came to know about the Assignment Deed dated 29.03.2006 only on 17.01.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the State Bank of Travancore to inform the Respondent-Company about the said assignment and secondly, Kotak Mahindra Bank was to inform the same to the Respondent-Company. If the intention of the Assignor and the assignee to the Assignment Deed dated 29.03.2006 was clear, then why the facts of the same were not brought to the notice of Respondent-Company that too when Clause 2.3 of the Assignment Deed very clearly states so. 20. The position becomes more clear from the fact that even after the alleged assignment, in a proceeding before the appellate tribunal, none of the representative of the State Bank of Travancore mentioned about the factum of such assignment. The Respondent-Company came to know about the alleged Assignment after a lapse of 9 months i.e. on 17.01.2007, when an application was moved by the Kotak Mahindra Bank for substituting its name in place of State Bank of Travancore. In the absence of such knowledge, on 11.01.2007, the Respondent-Company entered into a deed of Assignment with the Kotak Mahindra Bank wherein all the dues of a defaulter, viz., Ravishankar Industries Pvt. Ltd., of more than Rs. 32 crores were assigned to the Kotak Mahindra Bank. The Kotak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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