K. Virupaksha Vs The State of Karnataka

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 377 OF 2020 (Arising out of SLP (Criminal) No.5701 of 2019)

K. Virupaksha & Anr. .…Appellant(s)

Versus

The State of Karnataka & Anr. …. Respondent(s)

J U D G M E N T

A.S. Bopanna,J.

Leave granted.

2. The appellants herein were the petitioners in Criminal

Petition No.100323/2018 which was dismissed by the

High Court of Karnataka, Dharwad Bench through the

order dated 21.01.2019. The said order was passed by

the High Court while considering the petition filed by the

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appellants herein under Section 482 of the Cr.P.C.

seeking that the order dated 20.05.2016 passed by the

Principal Civil Judge & JMFC in PC No. 389/2016

referring the matter for investigation and consequential

registration of FIR in Crime No. 152/2016 by the

Hubballi SubUrban Police Station for the alleged

offences punishable under Sections 511, 109, 34, 120B,

406, 409, 420, 405, 417 and 426 of IPC be quashed. In

the said proceedings the appellants herein are arrayed as

Accused Nos. 9 and 11 respectively. The appellants

herein were at the relevant point in time working as the

Deputy General Managers in the Canara Bank (Accused

No.1), Circle Office at Hubbali, Karnataka.

3. The brief facts leading to the present situation is

that the respondent No.2 herein (hereinafter referred to

as the ‘Complainant’) had approached the Canara Bank

at Hubballi pursuant to which credit facilities were

sanctioned on 16.03.2009. The total credit facility

sanctioned amounted to Rs.2.68 crores. The property

bearing Survey No. 213/2002 situated at Anchatageri

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Village, Hubballi measuring 3 acres 2 Guntas was offered

as security for the said loan and a charge was created.

The said property is hereinafter referred to as the

‘Secured Asset’. As per the case of Canara Bank, the

Complainant had not repaid the loan amount and in that

view having committed default, the account of the

Complainant was classified as ‘NonPerforming Asset’

(‘NPA’ for short) on 15.01.2013. The Canara Bank thus

having invoked the power under Section 13(2) of The

Securitisation and Reconstruction of Financial Assets

and Enforcement of Securities Interest Act, 2002

(‘SARFAESI Act’ for short) had issued appropriate notices

and ultimately the possession of the secured asset as

contemplated under Section 14 of the SARFAESI Act was

taken on 22.03.2013. The secured asset was thereafter

evaluated and was brought to auction through the public

notice dated 13.10.2013 indicating the date of auction as

15.11.2013. The reserve price of the secured asset was

fixed at Rs.2,28,51,000/. Though publication was made,

no bids were received in the auction proposed on

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15.11.2013 and since the same was a public holiday

declared in the State of Karnataka the auction was

postponed to 04.12.2013. Even on the said date no bids

were received.

4. Accordingly, the Canara Bank had revised the

valuation, indicating the reserve price as Rs.1.10 Crore

since the earlier reserve price at a higher rate had not

attracted purchasers and issued the fresh auction notice

dated 30.12.2013. The Complainant claiming to be

aggrieved by such action, assailed the auction notice in a

Writ Petition filed before the High Court of Karnataka,

Dharwad Bench in Writ Petition No. 100382/2014. The

learned Single Judge having considered the matter, apart

from taking note of the contentions put forth by the

Complainant had also taken into consideration the

alternate remedy available to the Complainant under the

SARFAESI Act and accordingly dismissed the writ

petition with cost of Rs.10,000/, on 22.01.2014. The

Complainant assailed the said order by filing a Writ

Appeal before the Division Bench in WA No.

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100349/2014. The Division Bench through the order

dated 19.08.2014 dismissed the Writ Appeal. The

Complainant thereafter availed the remedy under Section

17(1) of the SARFAESI Act by filing an application in IR

No.3044/2014 (SA) and also accompanying the same

with an application under Section 5 of the Limitation

Act bearing IA No. 4482/2014. The application seeking

condonation of delay and consequently the main

application were dismissed by the Debts Recovery

Tribunal (‘DRT’ for short) through its order dated

12.06.2015. Pursuant thereto the Complainant is stated

to have filed an Appeal before the Debts Recovery

Appellate Tribunal, Chennai (‘DRAT’ for short) which is

also stated to be dismissed.

5. It is in the said backdrop the Complainant filed the

complaint under Section 200 of the Cr.P.C in the Court of

the Principal Civil Judge (Junior Division) & JMFC,

Hubballi in P.C. No.389/2016 alleging that the Officers of

the Canara Bank in connivance with the auction

purchaser had caused wrongful loss to the Complainant.

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To the said complaint, apart from the Canara Bank, the

highly placed officials, the appellants herein, the valuers

and the auction purchaser were shown as the accused.

The said complaint being taken on record, the learned

Magistrate has referred the same for investigation under

Section 156(3) of Cr.P.C. and to submit a report. Based

on such direction the FIR No.0152/2016 is registered.

The appellants, therefore, claiming to be aggrieved had

preferred the Criminal Petition under Section 482 of

Cr.P.C in Criminal Petition No.100323/2018, which was

dismissed by the High Court through the order dated

21.01.2019 which is assailed herein.

6. Heard Mr. Brijesh Kumar Tamber, learned counsel

appearing for the appellants, Ms. Kiran Suri, learned

senior counsel for the Complainant, Mr. Shubhanshu

Padhi, learned counsel for the State of Karnataka and

perused the appeal papers.

7. The learned counsel for the appellants would

contend that apart from the appellants having no role in

the transaction between the Complainant and the Canara

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Bank, being the Deputy General Managers and working

at the Circle Office, even otherwise cannot be held liable

to face a criminal action of the present nature. It is

contended that the loan transaction and the account

being treated as NPA due to the nonrepayment of loan

cannot be disputed. In that circumstance the entire

action taken, upto the stage of the sale of the property is

as regulated under the provisions of the SARFAESI Act

which provides not only for the procedure but also for

redressal of the grievance of the parties concerned. In

that circumstance even if the grievance as sought to be

made out by the Complainant are taken note, the same

cannot form the basis for maintaining the criminal

complaint and in such event the learned Magistrate

without application of mind has directed investigation

under Section 156(3) of Cr.P.C. which has led to the

registration of the FIR. It is contended that in respect of

the action taken by the Canara Bank, the complainant in

fact has availed the remedy of filing the Writ Petition,

Writ Appeal and thereafter the proceedings before the

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DRT as also DRAT and having failed therein has set

criminal law into motion which is not bonafide and not

sustainable in law. It is contended that the learned Judge

of the High Court of Karnataka has not appreciated the

matter in its correct perspective. Instead, the learned

Judge has arrived at the conclusion that the investigation

would not prejudice the appellants, which is not justified.

It is contended that when action is taken against a

defaulter, if the instant action is permitted, it would not

be possible to discharge the official functions and as such

the instant case is a fit case where interference was

required but the High Court has failed to appreciate this

aspect of the matter. Further, it is also pointed out that

the learned Judge was not justified in rejecting the

petition filed by the appellants merely because the other

petitions filed in Criminal Petition No.101258/2016 and

Criminal Petition No.101162/2016 filed by certain other

accused had been dismissed and a direction was issued

to the police to file the final report.

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8. The learned senior counsel for the Complainant

would on the other hand rely on the identical criminal

petitions which had been dismissed by the High Court

insofar as Accused Nos.1 and 12 are concerned. It is

contended that though the loan of Rs.2.68 Crores was

sanctioned, only a sum of Rs.90 lakhs was disbursed and

the remaining amount was adjusted as repayment. It is

further contended that the secured asset which was

worth more than Rs.4 Crores was undervalued and

ultimately sold for Rs.1.10 Crores in connivance with the

auction purchaser who is arrayed as Accused No.15. It is

further contended that the under valuation of the

mortgage property is not the only issue but the issue with

regard to the nondisbursement of the entire loan and the

nonconsideration of the three offers made by the

Complainant for One Time Settlement (‘OTS’ for short)

are all aspects which are to be investigated upon. It is

contended that in such circumstance the investigation as

ordered by the learned Magistrate was justified and the

High Court has appropriately refrained from interfering in

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the matter at this stage. It is, therefore, contended that

the contention as urged in the instant appeal by the

appellants does not merit consideration and the appeal is

liable to be rejected. The learned counsel for the State of

Karnataka would contend that pursuant to direction

issued by the learned Magistrate the FIR had been

registered and the investigation is in progress and

therefore, the same be permitted to be taken to its logical

conclusion.

9. Before adverting to the rival contentions urged on

behalf of the parties we have kept in perspective the

decision of this Court in the case of State of Haryana

vs. Bhajan Lal (1992) Supp (1) SCC 335 placed for

consideration by the learned senior counsel for the

Complainant which lays down the parameters that are to

be kept in view while exercising the extraordinary

power/inherent power to quash the criminal proceeding.

On stating the parameters, this Court has cautioned that

the power of quashing a criminal proceeding should be

exercised very sparingly and with circumspection and

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that too in rare cases. In that background, keeping in

view the nature of transaction and the manner in which

the earlier proceedings were resorted to on the same

subject matter, the present situation is required to be

considered.

10. As noted, the undisputed fact is that the

Complainant had approached the Canara Bank for

financial assistance, wherein the appellants herein were

the Officers in the Circle Office. The Complainant had

availed the loan facility to the tune of Rs.2.68 Crores on

16.03.2009. Though the Complainant contends that the

entire amount of Rs.2.68 Crores was not released, but

only a sum of Rs.90 lakh was released and the

remaining amount was adjusted as repayment, the

question would be as to whether that aspect and the

other aspects as raised with regard to the non

consideration of the OTS as also the value for which the

property was sold and the manner in which it was sold

could be investigated into by the police merely because

allegations are made and certain sections of the Indian

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Penal Code are invoked when the action is resorted to

and regulated under SARFAESI Act. While taking note of

the sequence of events it is noticed that the secured asset

though sold in the auction conducted on 31.01.2014 and

the grievances as sought to be put forth at this point in

the criminal complaint was available at that juncture, it

is not as if the complaint was immediately filed. On the

other hand, when the auction notice dated 13.10.2013

was issued, no grievance was made out by the

Complainant before any judicial forum. However, the sale

did not take place for want of purchasers and a fresh

auction notice dated 30.12.2013 was issued indicating

the reserve price at Rs.1.10 Crores.

11. At that stage the Complainant approached the

High Court of Karnataka, Dharwad Bench in a Writ

Petition filed under Articles 226 and 227 of the

Constitution of India in W.P. No.100382/2014. The

auction notice dated 30.12.2013 was impugned therein.

The allegation which is now sought to be put forth in the

complaint filed under Section 200 of the Cr.PC wherein

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the appellants herein along with others have been

accused of with regard to the under valuation of the

secured assets was the very contention which was urged

in the said Writ Petition. The learned Single Judge in the

said Writ Petition had taken note of the contention that

the reserve price in respect of the secured assets was

fixed at Rs.228.51 Lakhs initially, thereafter in the

subsequent auction conducted the same was fixed at

Rs.1.10 Crores and has thereafter concluded as

hereunder:

“Undisputedly, petitioner is the debtor and has suffered an order passed by jurisdictional Debt Recovery Tribunal. The Debt Recovery Tribunal, Bangalore has issued recovery certificate in favour of respondentBank to recover the said amount. Property mortgaged to respondent Bank by the petitioner has been brought for sale by auction. In the event of Bank not adhering to provisions of SARFAESI Act in conducting the sale or there being any infraction in this regard, petitioner has an alternate remedy available under SARFAESI Act. Hence, at the stage of auction being conducted by respondentBank for recovery of its legitimate dues, this Court would not interfere with said auction in the normal course.”

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“In the instant case, reserve price earlier fixed at Rs.228.51 lakhs has not fetched customers and as such, respondent Bank has fixed the reserve price at Rs.110 lakhs which would be the price with which the public auction starts and auction bidders are not permitted to give bids below the floor value or reserve price. If the petitioner is able to secure a customer or a bidder who can offer his bid for the value as proposed by the petitioner itself, it would be needless to state that secured creditor would definitely accept the said bid since earlier attempts by it to auction the property has been in vain.”

“In the instant case, as already noticed hereinabove, petitioner is a borrower and it had defaulted in payment of monies due to the Bank. In other words, public money due by petitioner to the Bank has not been repaid. Petitioner loan account having been classified as a ‘nonperforming asset’, respondentBank has initiated proceedings under the SARFAESI Act to recover the dues. In the earlier auctions conducted, reserve price fixed was Rs.228.51 lakhs i.e., in the auction which was to be held on 15.11.2013 and 04.12.2013. However, in the paper publication that has been issued on 30.12.2013 AnnexureC in the auction proposed to be held on 31.01.2014 at 3.30 p.m. (Eauction), reserve price has been fixed at Rs.110 lakhs. The grievance of the petitioner is that value of the property is more than Rs.405.21 lakhs and as such, property in question cannot be sold for a pittance. If value of the property as contended by petitioner is Rs.405.21 lakhs,

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nothing prevents the petitioner from getting a purchaser or a bidder to purchase the property for the said value and clear off the debts due by it to the respondent which even according to petitioner is around Rs.285.71 lakhs as on 31.01.2014 (which was Rs.261 lakhs as on 11.10.2013). However, without taking said recourse, petitioner is attempting to stall the auction proceedings which is not permissible inasmuch as the respondent Bank being a nationalised Bank which is the custodian of public money is taking steps to recover its dues by auctioning the property through eauction and the action of respondentBank cannot be flawed. RespondentBank has adopted one of the courses suggested by the Hon’ble Apex Court in United India Assurance case referred to supra namely “Public Auction” by which process there would be larger participation. If at all the auction is to be setaside for any reason whatsoever, petitioner can take recourse to the remedy available under SARFAESI Act and get the sale set aside. However, petitioner cannot be permitted to stall the auction itself under extraordinary

jurisdiction of this Court.”

(emphasis supplied)

12. While arriving at such conclusion the learned

Single Judge had kept in view the provisions as

contained in the SARFAESI Act, as also the decisions of

this Court, more particularly in the case of United Bank

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of India vs. Satyawati Tondon & Ors. (2009) 1 SCC

168. In that view though the learned Single Judge did

not accept the contentions as put forth had also

indicated that if at all the auction is to be set aside for

any reason whatsoever, the Complainant who was the

petitioner therein can take recourse to the remedy under

SARFAESI Act and get the sale set aside. In that view the

learned Single Judge was of the opinion that the

Complainant cannot be permitted to stall the auction

itself through the prayer made in the Writ Petition. The

Complainant had assailed the said order in an intra

court appeal bearing W.A. No.100349/2014. The

Division Bench by its order dated 19.08.2014 had taken

note of the consideration made by the learned Single

Judge with reference to the case of Satyawati Tondon

& Ors. (Supra) and had accordingly dismissed the Writ

Appeal.

13. Having taken note of the nature of consideration

made by the High Court in the said writ proceedings and

keeping in view the proceedings on hand, in order to

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come to a conclusion as to whether in a matter of the

present nature the appellants should be exposed to the

ignominy of going through the process of criminal

proceedings, it is also appropriate to take note of the

provisions as contained in the SARFAESI Act. The fact

that the issue relates to the exercise of remedy relating to

a secured asset as defined under the Act cannot be in

dispute. The fact that the account of the Complainant

was classified as NPA is also the admitted position. In

that regard when a right accrues to the secured creditor

to enforce the security interest, the procedure as

contemplated under Sections 13 and 14 of the SARFAESI

Act is to be resorted to. Further the Security Interest

(Enforcement) Rules, 2002 provides the procedure to be

adopted with regard to the valuation and sale of the

secured asset. If the Complainant, as a borrower had

any grievance with regard to any of the measures taken

by the secured creditor invoking the provisions of Section

13 of the SARFAESI Act, the remedy as provided under

Section 17 of the SARFAESI Act was to be availed. It is in

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that light the High Court in the writ proceedings had

arrived at such conclusion. At that point in time the

Complainant availed the remedy under the Act by filing

the application under Section 17 in I.R. No.3044/2014.

Since there was delay in filing, an application in I.A.

No.4482/2015 was filed under Section 5 of the Limitation

Act seeking condonation of delay. The same was rejected

on the ground of delay against which an appeal is said to

have been filed before the DRAT and it was pending

though it is now stated to be dismissed. It is at that

stage when it was still pending the impugned complaint

in P.C. No.389/2016 was filed, wherein through the order

dated 20.05.2016 it had been referred to an investigation

under Section 156 (3) of the Cr.PC.

14. The learned senior counsel for the Complainant no

doubt referred to the Criminal Petition No.101162/2016

and Criminal Petition No.101258/2016 filed by the

Accused Nos.1 and 12 being dismissed by the High Court

and the same not being carried further and attaining

finality. Though that be the position, in the instant case

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the appellants are before this Court to exercise the

remedy available and as such the dismissal of the said

petitions cannot prejudice their case when this Court is

required to take a view on the matter though it has not

been availed in the earlier cases. Further the learned

senior counsel has also referred to the statements of two

former Officers of the Canara Bank, namely,

Gurupadayya and Bapu which was recorded during the

course of the investigation and a reference was made by

the learned senior counsel to the detailed report

regarding investigation wherein the Investigating Officer,

namely, the Assistant Police SubInspector, SubUrban

Police Station, Hubballi had concluded that as per the

investigation it is found that all the accused persons with

conspiracy and in collusion with each other have cheated

the Complainant by releasing only Rs.90 Lakhs out of the

sanctioned amount of Rs.2.68 Crores and by later not

releasing the remaining amount had caused economic

stumbling block and sold the property mortgaged to one

of the accused.

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15. The issue however is, as to whether such

proceedings by the police in the present facts and

circumstances could be permitted. At the outset the

sanction of loan, creation of mortgage and the manner in

which the sanctioned loan was to be released are all

contractual matters between the parties. The

Complainant is an industrialist who had obtained the

loan in the name of his company and the loan account

was maintained by the Canara Bank in that regard. The

loan admittedly was sanctioned on 16.03.2009. When at

that stage the amount was released and if any amount

was withheld, the Complainant was required to take

appropriate action at that point in time and avail his

remedy. On the other hand, the Complainant had

proceeded with the transaction, maintained the loan

account until the account was classified as NPA on

15.01.2013. Initially the issue raised was only with

regard to the under valuation of the property when it was

brought to sale. On that aspect, as taken note the writ

proceedings were filed and the learned Single Judge

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having examined, though did not find merit had reserved

liberty to raise it before the DRT, which option is also

availed. It is only thereafter the impugned complaint was

filed on 20.05.2016.

16. The SARFAESI Act is a complete code in itself

which provides the procedure to be followed by the

secured creditor and also the remedy to the aggrieved

parties including the borrower. In such circumstance as

already taken note by the High Court in writ proceedings

if there is any discrepancy in the manner of classifying

the account of the appellants as NPA or in the manner in

which the property was valued or was auctioned, the DRT

is vested with the power to set aside such auction at the

stage after the secured creditor invokes the power under

Section 13 of SARFAESI Act. This view is fortified by the

decision of this Court in the case of Authorised Officer,

Indian Overseas Bank & Anr. vs. Ashok Saw Mill

(2009) 8 SCC 366 wherein it is held as hereunder:

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“34. The provisions of Section 13 enable the secured creditors, such as banks and financial institutions, not only to take possession of the secured assets of the borrower, but also to take over the management of the business of the borrower, including the right to transfer by way of lease, assignment or sale for realising secured assets, subject to the conditions indicated in the two provisos to clause (b) of subsection (4) of Section 13.

35. In order to prevent misuse of such wide powers and to prevent prejudice being caused to a borrower on account of an error on the part of the banks or financial institutions, certain checks and balances have been introduced in Section 17 which allow any person, including the borrower, aggrieved by any of the measures referred to in subsection (4) of Section 13 taken by the secured creditor, to make an application to the DRT having jurisdiction in the matter within 45 days from the date of such measures having taken for the reliefs indicated in subsection (3) thereof.

36. The intention of the legislature is, therefore, clear that while the banks and financial institutions have been vested with stringent powers for recovery of their dues, safeguards have also been provided for rectifying any error or wrongful use of such powers by vesting the DRT with authority after conducting an adjudication into the matter to declare any such action invalid and also to restore possession even

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though possession may have been made over to the transferee.

37. The consequences of the authority vested in the DRT under subsection (3) of Section 17 necessarily implies that the DRT is entitled to question the action taken by the secured creditor and the transactions entered into by virtue of Section 13(4) of the Act. The legislature by including subsection (3) in Section 17 has gone to the extent of vesting the DRT with authority to even set aside a transaction including sale and to restore possession to the borrower in appropriate cases. Resultantly, the submissions advanced by Mr Gopalan and Mr Altaf Ahmed that the DRT has no jurisdiction to deal with a postSection 13(4) situation, cannot be accepted.”

(emphasis supplied)

17. We reiterate, the action taken by the Banks under

the SARFAESI Act is neither unquestionable nor treated

as sacrosanct under all circumstances but if there is

discrepancy in the manner the Bank has proceeded it will

always be open to assail it in the forum provided. Though

in the instant case the application filed by the

Complainant before the DRT has been dismissed and the

Appeal No.523/2015 filed before the DRAT is also stated

to be dismissed the appellants ought to have availed the

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remedy diligently. In that direction the further remedy by

approaching the High Court to assail the order of DRT

and DRAT is also available in appropriate cases. Instead

the petitioner after dismissal of the application before the

DRT filed the impugned complaint which appears to be

an intimidatory tactic and an afterthought which is an

abuse of the process of law. In the matter of present

nature if the grievance as put forth is taken note and if

the same is allowed to be agitated through a complaint

filed at this point in time and if the investigation is

allowed to continue it would amount to permitting the

jurisdictional police to redo the process which would be

in the nature of reviewing the order passed by the learned

Single Judge and the Division Bench in the writ

proceedings by the High Court and the orders passed by

the competent Court under the SARFAESI Act which is

neither desirable nor permissible and the banking system

cannot be allowed to be held to ransom by such

intimidation. Therefore, the present case is a fit case

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wherein the extraordinary power is necessary to be

invoked and exercised.

18. The appellants herein had also referred to the

provision as contained in Section 32 of the SARFAESI Act

which provides for the immunity from prosecution since

protection is provided thereunder for the action taken in

good faith. The learned senior counsel for the

Complainant has in that regard referred to the decision of

this Court in the case of General Officer Commanding,

Rashtriya Rifles vs. Central Bureau of Investigation

& Anr. (2012) 6 SCC 228 to contend that the defence

relating to good faith and public good are questions of

fact and they are required to be proved by adducing

evidence. Though on the proposition of law as

enunciated therein there could be no cavil, that aspect of

the matter is also an aspect which can be examined in

the proceedings provided under the SARFAESI Act. In a

circumstance where we have already indicated that a

criminal proceeding would not be sustainable in a matter

of the present nature, exposing the appellants even on

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that count to the proceedings before the Investigating

Officer or the criminal court would not be justified.

19. In that view, for all the reasons stated above we

pass the following:

O R D E R

(i) The complaint bearing P.C. No.389/2016

and the order dated 20.05.2016 passed

therein as also the FIR No.0152/2016

insofar as the appellants herein are

concerned stand quashed.

(ii) Insofar as the grievance of the

Complainant, he is at liberty to avail his

remedies in accordance with law if he

chooses to assail the order dated 12.06.2015

passed in I.R. No.3044/2014 and the order

dated 31.05.2017 passed in Appeal

No.523/2015 by the DRT and DRAT

respectively in accordance with law.

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(iii) The appeal is accordingly allowed with no

order as to costs.

(iv) Pending applications if any, shall also

stand disposed of.

………….…………….J. (R. BANUMATHI)

.……………………….J. (S. ABDUL NAZEER)

………….…………….J. (A.S. BOPANNA)

New Delhi, March 03, 2020

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K. VIRUPAKSHA Vs THE STATE OF KARNATAKA

K. VIRUPAKSHA Vs THE STATE OF KARNATAKA