1 cri.appln.1258-1429-10 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPLICATION NO. 1258 OF 2010 Dr. Anil Khandelwal, Chairman & Managing Director, Bank of Baroda, Bank of Baroda Building, Bandra Kurla Complex, Mumbai 400 051. ... Applicant Versus 1. Phoenix India, a registered partnership firm having its office at 38-A, Ground Floor, Raj Industrial Complex, Military Road, Marol, Andheri (East), Mumbai 400 059 2. State of Maharashtra ... Respondents ALONG WITH CRIMINAL APPLICATION NO. 1429 OF 2010 1. Mr. B.M. Sharma, Deputy General Manager, Government Business, Bank of Baroda, Head Office, Sayaji Ganj, Baroda. ... Applicant No.1. 2. Mr. Mukul Ranjan, Chief Manager (BCMS), B:ank of Baroda Building, 4th Floor, 10/12, Mumbai Samachar Marg, Fort, Mumbai 400 023 ... Applicant No.2. Versus 1. Phoenix India, a registered partnership firm having its office at 38-A, Ground Floor, 2 cri.appln.1258-1429-10 Raj Industrial Complex, Military Road, Marol, Andheri (East), Mumbai 400 059 2. State of Maharashtra ... Respondents Mr. Subhash Desai along with Mr. Nahush Shah i/by M/s. Little & Little for applicants. Mr. S.G. Gokhale, Advocate for respondent. Mrs. A.A. Mane, A.P.P. for State. CORAM : SMT. R.P. SONDURBALDOTA,J. DATED : DECEMBER 03, 2010 P.C. 1. This is a common order on above two applications, the applicants wherein are the accused in Complaint No. 6353 of 2007 filed by respondent no. 1. The applicant in Criminal Application No. 1258 of 2010 is accused no. 1 in the complaint and applicants in Criminal Application No. 1429 of 2010 are accused nos. 2 and 3 in the complaint. Since both the applications raise common questions of law and facts, they are being disposed of by a common order. 2. The applications impugn order dated 29th September, 2008 passed by the learned Judicial Magistrate, First Class, Bhiwandi issuing process in Complaint No. 6353 of 2007 filed by respondent no. 1. 3 cri.appln.1258-1429-10 3. Respondent no. 1 filed a complaint against Dr. Anil Khandelwal, Chairman and Managing Director of Bank of Baroda, Mr. B.M. Sharma, Deputy General Manager, MMNR, Bank of Baroda and Mr. Mukul Ranjan, Chief Manager, Bank of Baroda (applicant herein) alleging commission of offence punishable under Section 500 and 501 of Indian Penal Code. On 13th June, 2007 notice was pasted on the office premises of respondent no. 1 at Dhaniawala Godown, 172, Gopinath Compoundk, Purna Village, Taluka Bhiwandi, District Thane informing respondent no. 1 and general public that the applicants herein had taken symbolic possession of the premises in exercise of powers conferred by section 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 read with rule 8 of the Security Interest (Enforcement) Rules, 2002 as respondent no. 1 had failed to pay debt of "Rs.56,15,9,294/- (Rupees Fifty Six Crore Fifteen lakh Nine thousand two hundred Ninety Four only)" as on 28th February, 2007 and further interest thereon despite service of demand notice dated 25th March,2007. The notice further cautioned respondent no. 1 and the public in general from dealing with the property and that any dealings with the property would be subject to the charges of Bank 4 cri.appln.1258-1429-10 of Baroda for the amount of "Rs.56,15,9,294/- (Rupees Fifty Six Crore Fifteen lakh Nine thousand two hundred Ninety Four only)". The complaint also alleges that the bank had published incorrect and misleading notices in the newspapers like Times of India, Lok satta, Mumbai Tikes, Mumbai Samachar and Janmabhoomi for attachment of these properties. The complaint alleges that the pasting of the notice at the premises has been with malicious intention of defaming respondent no. 1 and its partner Mr. Ketkar. It is also pressurizing tactic on the part of the applicants who are in consort with one Ms. Mini Shah, partner in respondent no. 1 firm. According to respondent no. 1, the contents of the notice pasted at the premises are also incorrect and misleading. The notice refers to the debt being of Rs.56,15,9,294/- whereas the actual debt is only of Rs.2.91 Crores. The respondent no. 2 claims that the notice pasted on the premises has been read by the pubic in general and it has given wrong impression that it owes huge amount to the bank. The relatives, friends, neighbours and business associates started calling upon partner Mr. Ketkar from various places enquiring about the notice which caused humiliation and embarrassment to him. 4. The learned Magistrate after consideration of the statement of 5 cri.appln.1258-1429-10 Mr. Ketkar, the partner of respondent no. 1 for verification and the contents of the complaint as also the public notice passed order of issuing process only against the applicants. 5. Mr. Desai the learned counsel for the applicants submit that the learned Magistrate could not have issued process against accused nos. 1 and 2 as the complaint fails to state the connection between these two officers and the alleged act of defamation. He submits that in the other identical complaint filed by the partner of respondent no. 1 the learned Magistrate before whom the complaint is pending, did not issue process against accused nos. 1 and 2 and the process was issued only against accused no. 3, the signatory to the public notice. He also points out that respondent no. 1 has not challenged that order of issuance of process only against accused no. 3. He further submits that unless there are specific allegations made in the complaint connecting accused nos. 1 and 2 to the alleged act of defamation, no process could have been issued against them. 6. Perusal of the complaint shows that the necessary averments have been made in paras 2, 3, 9, 10, 17 and 18 of the complaint. At paragraph no. 2, respondent no. 1 specifically states that all the 6 cri.appln.1258-1429-10 three accused persons are in charge and looking after the day today affairs of the bank and are responsible for the issuance of defamatory possession notice. All the accused persons have been in direct correspondence with respondent no. 1 regarding the loan in connection with which possession notice was pasted. Hence, applications are dismissed. 7. At the request of the learned counsel of the applicants, it is directed that the trial court should proceed with the hearing of the complaint independently without being influenced by the observations made by this court in the order. 8. Interim order passed in the applications is continued for the period of four weeks from today. (SMT. R.P. SONDURBALDOTA,J.)