Uttarakhand High Court
Unknown vs State Of Uttarakhand And Others on 24 March, 2025
Author: Pankaj Purohit
Bench: Pankaj Purohit
2025:UHC:2177
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application U/s 482 No. 1296 of 2023
24th March, 2025
Indiabulls Housing Finance Limited
.........Applicant
Versus
State of Uttarakhand and others
........Respondents
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Presence:-
Mr. Pradeep Kumar Chauhan, Advocate for the applicant.
Mr. S.C. Dumka, A.G.A. for the State.
Mr. Aditya Singh and Mr. Rishab Ranghar, Advocates for the complainant.
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Hon'ble Pankaj Purohit, J. (Oral)
By means of the present C482 application, the
applicant has put to challenge the order dated 29.04.2023,
passed by learned VIIIth Additional Sessions Judge,
Dehradun in Criminal Revision No.38 of 2023, CNR
No.UKDD01-000830-2023, whereby learned revisional
court dismissed the revision of the applicant and affirmed
the order passed by learned IIIrd Additional Chief Judicial
Magistrate, Dehradun and to quash the order dated
23.04.2022, qua, the applicant passed by learned IIIrd
Additional Chief Judicial Magistrate, Dehradun in
Complaint Case No.858 of 2020, whereby the applicant
was summoned under Section 120-B, 420, 467 and 468 of
IPC in the aforesaid complaint case.
2. Facts of the case in brief are that the applicant –
Indiabulls Housing Finance Limited – (hereinafter referred
to as “Company”) is a Company registered under the
Companies Act, 1956 and is a secured creditor as defined
under Section 2(zd) of Securitization and Reconstruction of
Financial Assets and Enforcement of Security Interest Act,
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2002. In the year 2016, the respondent nos.2 and 3
namely – Elkana Nissim Ezekeil and Molshri Kholi Ezekeil
– approached the Company for a loan under a subvention
scheme to purchase Unit No.604 in Dehradun and
provided documentation with the assurance to make
timely payments. Relying upon the documents submitted
by the respondents, the applicant sanctioned loan and
disbursed it in their favour. After disbursal of loan, the
applicant intimated the respondents to pay the loan
installments, to which they denied and filed various
complaints against the applicant before various courts.
Respondents filed a civil suit before learned Civil Judge
(S.D.), Dehradun for restraining the applicant from
debiting installments towards the loan account, wherein
the learned Civil Judge (S.D.), Dehradun dismissed the
said suit. Thereafter, demand notices were sent on mail of
the respondents and their loan account was declared as
N.P.A.
3. It is argued on behalf of learned counsel for the
applicant that the applicant-Company does not come
under the jurisdiction of the court, therefore, it was
incumbent upon the court to conduct an enquiry as
contemplated under Section 202 of Cr.P.C. It is also
pertinent to mention that on one hand, the respondents
are claiming the loan availed by them is under subvention
scheme, in which, the builder is liable to pay loan
installments to the revisionist/lender and on the other
hand the respondents/loanee are also denying the fact of
their signature in the tripartite agreement. Hence, the
order impugned is bad in law and is liable to be quashed.
4. It is also argued on behalf of learned counsel for
the applicant that the respondents filed multiple cases
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against the applicant, with mala fide intention, to cause
harassment to him before the different courts/Tribunals.
Furthermore, it is purely a civil dispute. He also submits
that the F.S.L. Report nowhere stated that the signatures
are forged and the trial court did not consider this fact
that the signatures of any person may slightly differ by
frequently signing various papers at a time. Thus, the
impugned orders deserve to be quashed.
5. A counter affidavit has been filed on behalf of
respondent nos.2 & 3 stating therein that for purchasing a
property in Dehradun, they took a loan from the Company.
They agreed to purchase the Flat in-question for sale
consideration of about ₹1.05 crore and accordingly, Flat
Allotment Agreement, dated 26.05.2016, was entered into
among the answering respondents and builder. Thereafter,
they applied for loan and accordingly, a loan was
sanctioned and an agreement dated 28.05.2016 was
entered into among the respondents and the applicant.
6. They came to an accord that repayment of loan
installments would start only on getting possession of flat
and on execution of tripartite agreement amongst the
parties. In the counter affidavit, it is further stated that no
such tripartite agreement was ever entered into by the
builder and the applicant with the respondents and when
the respondents came to know about the default of the
loan installment, then they came to know that the alleged
tripartite agreement dated 18.04.2016 is a forged one
having forged signatures. After that, they preferred a
complaint before R.E.R.A. Uttarakhand and the R.E.R.A.
sent the tripartite agreement to forensic experts and in the
FSL Report, it came that the signatures of the respondents
on the tripartite agreement are forged. Thus, it is a clear
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case of forgery committed by the applicant.
7. A rejoinder affidavit has also been filed by the
applicant, in which, he reiterated the grounds, which he
took in the C482 application.
8. Learned counsel for the applicant relied upon
the judgment of the Apex Court in the case of Shiv Jatia
vs. Gian Chand Malick & others; reported in (2024) 4 SCC
289. Para 15 of the said judgment is quoted hereinbelow:-
“15. Sub-section (1) of Section 202CrPC, as amended, reads thus:
“202. Postponement of issue of process.–(1) Any Magistrate, on
receipt of a complaint of an offence of which he is authorised to take
cognizance or which has been made over to him under Section 192,
may, if he thinks fit, and shall, in a case where the accused is
residing at a place beyond the area in which he exercises his
jurisdiction, postpone the issue of process against the accused, and
either inquire into the case himself or direct an investigation to be
made by a police officer or by such other person as he thinks fit, for
the purpose of deciding whether or not there is sufficient ground for
proceeding:
Provided that no such direction for investigation shall be
made–
(a) where it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a court, unless
the complainant and the witnesses present (if any) have been
examined on oath under Section 200.”
(emphasis supplied)
The portion starting from “and” and ending with “his jurisdiction” was
added with effect from 23-6-2006. The requirement of postponing the
issue of the process was introduced on 23-6-2006 which is applicable
only when one of the accused stays outside the jurisdiction of the
court. The said requirement is held to be mandatory. The mandatory
requirement of postponing the issue of the process because the
accused was residing at a place beyond the area where the learned
Magistrate exercises his jurisdiction was not applicable when the
complaint was filed in 2004. The mandate introduced with effect from
23-6-2006 was not applicable on the date of filing of the complaint.
We are not examining whether the amended provision will apply to a
complaint filed before 23-6-2006 in which the order of issue of process
has been passed after 23-6-2006.”
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9. Learned counsel for the applicant also relied
upon the judgment of the Apex Court in the case of
Priyanka Srivastava & another vs. State of Uttar Pradsesh
& others; reported in (2015) 6 SCC 287. Paras 27 to 33 are
quoted hereinbelow:-
“27. Regard being had to the aforesaid enunciation of law, it needs to
be reiterated that the learned Magistrate has to remain vigilant with
regard to the allegations made and the nature of allegations and not
to issue directions without proper application of mind. He has also to
bear in mind that sending the matter would be conducive to justice
and then he may pass the requisite order. The present is a case
where the accused persons are serving in high positions in the Bank.
We are absolutely conscious that the position does not matter, for
nobody is above the law. But, the learned Magistrate should take note
of the allegations in entirety, the date of incident and whether any
cognizable case is remotely made out. It is also to be noted that when
a borrower of the financial institution covered under the Sarfaesi Act,
invokes the jurisdiction under Section 156(3) CrPC and also there is a
separate procedure under the Recovery of Debts Due to Banks and
Financial Institutions Act, 1993, an attitude of more care, caution and
circumspection has to be adhered to.
28. Issuing a direction stating “as per the application” to lodge an FIR
creates a very unhealthy situation in society and also reflects the
erroneous approach of the learned Magistrate. It also encourages
unscrupulous and unprincipled litigants, like Respondent 3, namely,
Prakash Kumar Bajaj, to take adventurous steps with courts to bring
the financial institutions on their knees. As the factual exposition
would reveal, Respondent 3 had prosecuted the earlier authorities
and after the matter is dealt with by the High Court in a writ petition
recording a settlement, he does not withdraw the criminal case and
waits for some kind of situation where he can take vengeance as if he
is the emperor of all he surveys. It is interesting to note that during the
tenure of Appellant 1, who is presently occupying the position of Vice-
President, neither was the loan taken, nor was the default made, nor
was any action under the Sarfaesi Act taken. However, the action
under the Sarfaesi Act was taken on the second time at the instance
of the present Appellant 1. We are only stating about the devilish
design of Respondent 3 to harass the appellants with the sole intent
to avoid the payment of loan. When a citizen avails a loan from a
financial institution, it is his obligation to pay back and not play
truant or for that matter play possum. As we have noticed, he has
been able to do such adventurous acts as he has the embedded
conviction that he will not be taken to task because an application
under Section 156(3) CrPC is a simple application to the court for issue
of a direction to the investigating agency. We have been apprised that
a carbon copy of a document is filed to show the compliance with
Section 154(3), indicating it has been sent to the Superintendent of5
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Police concerned.”
29. At this stage it is seemly to state that power under Section 156(3)
warrants application of judicial mind. A court of law is involved. It is
not the police taking steps at the stage of Section 154 of the Code. A
litigant at his own whim cannot invoke the authority of the Magistrate.
A principled and really grieved citizen with clean hands must have
free access to invoke the said power. It protects the citizens but when
pervert litigations takes this route to harass their fellow citizens,
efforts are to be made to scuttle and curb the same.
30. In our considered opinion, a stage has come in this country where
Section 156(3) CrPC applications are to be supported by an affidavit
duly sworn by the applicant who seeks the invocation of the
jurisdiction of the Magistrate. That apart, in an appropriate case, the
learned Magistrate would be well advised to verify the truth and also
can verify the veracity of the allegations. This affidavit can make the
applicant more responsible. We are compelled to say so as such kind
of applications are being filed in a routine manner without taking any
responsibility whatsoever only to harass certain persons. That apart,
it becomes more disturbing and alarming when one tries to pick up
people who are passing orders under a statutory provision which can
be challenged under the framework of the said Act or under Article
226 of the Constitution of India. But it cannot be done to take undue
advantage in a criminal court as if somebody is determined to settle
the scores.
31. We have already indicated that there has to be prior applications
under Sections 154(1) and 154(3) while filing a petition under Section
156(3). Both the aspects should be clearly spelt out in the application
and necessary documents to that effect shall be filed. The warrant for
giving a direction that an application under Section 156(3) be
supported by an affidavit is so that the person making the application
should be conscious and also endeavour to see that no false affidavit
is made. It is because once an affidavit is found to be false, he will be
liable for prosecution in accordance with law. This will deter him to
casually invoke the authority of the Magistrate under Section 156(3).
That apart, we have already stated that the veracity of the same can
also be verified by the learned Magistrate, regard being had to the
nature of allegations of the case. We are compelled to say so as a
number of cases pertaining to fiscal sphere, matrimonial
dispute/family disputes, commercial offences, medical negligence
cases, corruption cases and the cases where there is abnormal
delay/laches in initiating criminal prosecution, as are illustrated
in Lalita Kumari [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] are being
filed. That apart, the learned Magistrate would also be aware of the
delay in lodging of the FIR.
32. The present lis can be perceived from another angle. We are
slightly surprised that the financial institution has been compelled to
settle the dispute and we are also disposed to think that it has so
happened because the complaint cases were filed. Such a situation
should not happen.
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33. At this juncture, we may fruitfully refer to Section 32 of
the Sarfaesi Act, which reads as follows:
“32.Protection of action taken in good faith.–No suit,
prosecution or other legal proceedings shall lie against any
secured creditor or any of his officers or manager exercising
any of the rights of the secured creditor or borrower for
anything done or omitted to be done in good faith under this
Act.”
In the present case, we are obligated to say that the learned
Magistrate should have kept himself alive to the aforesaid
provision before venturing into directing registration of the FIR
under Section 156(3) CrPC. It is because Parliament in its wisdom
has made such a provision to protect the secured creditors or any
of its officers, and needless to emphasise, the legislative mandate
has to be kept in mind.”
10. Learned counsel for the applicant also relied
upon the judgment of the Apex Court in the case of Naresh
Kumar and another vs. State of Karnataka and another;
reported in (2024) SCC Online SC 268. Para 6 of the said
judgment is quoted below:-
“6. In the case of Paramjeet Batra v. State of
Uttarakhand, (2013) 11 SCC 673, this Court recognized that
although the inherent powers of a High Court under
Section 482 of the Code of Criminal Procedure should be
exercised sparingly, yet the High Court must not hesitate in
quashing such criminal proceedings which are essentially of a
civil nature. This is what was held:
“12. While exercising its jurisdiction under Section 482 of
the Code the High Court has to be cautious. This power is
to be used sparingly and only for the purpose of preventing
abuse of the process of any court or otherwise to secure
ends of justice. Whether a complaint discloses a criminal
offence or not depends upon the nature of facts alleged
therein. Whether essential ingredients of criminal offence
are present or not has to be judged by the High Court. A
complaint disclosing civil transactions may also have a
criminal texture. But the High Court must see whether a
dispute which is essentially of a civil nature is given a
cloak of criminal offence. In such a situation, if a civil
remedy is available and is, in fact, adopted as has
happened in this case, the High Court should not hesitate
to quash the criminal proceedings to prevent abuse of
process of the court.”
(emphasis supplied)
11. Heard the learned counsel for the parties.
12. After perusal of records and going through the
judgments relied by the learned counsel for the applicant,
this court is of the opinion that the matter involved has
prima facie elements of crime which can only be established
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and proved after a proper trial in the trial court. This Court
is also of the opinion that the judgments relied upon by the
learned counsel for the applicant are of no help to the
applicant under given set of facts. The learned magistrate
has after due application of mind directed the lodging of
complaint u/s 156(3) Cr.P.C. treating the said application
as a complaint.
13. I have also gone through the reasoning assigned
by learned Magistrate as well as learned revisional court
while passing the impugned orders. I find no irregularity or
illegality in the orders passed by the courts below. There
are concurrent findings of fact against the applicant and
there is no ground for interference in this matter.
Accordingly, the present criminal misc. application fails
and is hereby dismissed.
14. Pending application, if any, stands disposed of
accordingly.
(Pankaj Purohit, J.)
24.03.2025
SK
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