IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CRMMO No.85 of 2008 Date of decision : July 6, 2009 P.C. Negi …Petitioner. Versus State of H.P. and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioner : Mr. Ashwani K. Sharma, Advocate. For the Respondent : Mr. Ramesh Thakur, Assistant Advocate General, for respondents No.1 to 3. Mr. J.L. Bhardwaj, Advocate, for respondent No.4. Surjit Singh, J (Oral) Petitioner is Manager of a Branch of State Bank of India located at Sungra (District Kinnaur). The said Branch of State Bank of India had advanced two loans to respondent No.4 Sher Singh. The latter mortgaged his properties, comprised in Khasra Nos.1810/1, measuring 463 Sq.m and 920/1, measuring 955 Sq.m. Respondent No.4 did not repay the loans. Suits were filed against him, which were decreed by the trial Court, in the year 2003. Respondent No.4 did not discharge his liability, even after the passing of decrees. 2. In the year 2002, Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, came into force. The Act authorises the Bank Officers to Whether reporters of the local papers may be allowed to see the judgment? …2… take possession of the mortgaged properties and to sell them of to recover the money due. The petitioner, in his capacity as Branch Manager and having the power to act under the provisions of the aforesaid Act of 2002, took possession of a house belonging to respondent No.4, on 27th March, 2008. Respondent No.4 lodged an FIR against the petitioner on 4th June, 2008, alleging that the petitioner had trespassed into his aforesaid house. A case was registered against the petitioner and some other persons, who allegedly accompanied him, under Section 448, read with Section 34 of the Indian Penal Code. According to respondent No.4, possession of his house had not been taken over on 27th March, 2008, as alleged by the petitioner, but the latter, accompanied by others, committed criminal house trespass on 4th June, 2008, by unauthorisedly entering his house. It is also the case of respondent No.4 that this house had not been mortgaged with the Bank and, therefore, its possession could not have been taken over, under the aforesaid Act of 2002 3. I have heard learned counsel for the parties and gone through the record. 4. There is one document, Annexure P-11, filed with the rejoinder, per which Khasra No.920/1, measuring 955 sq.m, had been encumbered as security for one of the loans. This document is in the form of a declaration made by respondent No.4. It is signed by him. In addition to this document, there is another document, signed by respondent No.4 himself, i.e. application Annexure P-12, which he …3… submitted to the Manager of Sungra Branch of State Bank of India, in March, 2001. As per this document, loan had been taken for construction of house on Khasra No.1810/1, but on account of the site of Khasra No.1810/1, being not suitable for construction of house, he had constructed the same on Khasra No.920/1. Now, this fact, appearing in application Annexure P- 12, amounts to an admission on the part of respondent No.4 that the house stood on Khasra No.920/1, which had been mortgaged with the Bank, as aforesaid. There is another document in the form of certificate of a Patwari, Annexure P-13, per which Khasra No.920/1, has undergone a change and the new khasra numbers are 2423/920, 2424/920, 2425/920, 2319/920 and 2541/2320/920. The house, according to respondent No.4, stands on new Khasra Numbers 2425/920 and 2424/920, which, as per aforesaid certificate Annexure P-13, are part of mortgaged Khasra No.920/1. 5. Respondent No.4 relies upon a letter of Tehsildar, Annexure R-4/7, per which Khasra Nos.2425/920 and 2424/920, have not been mortgaged with State Bank, Sungra, and that what has been mortgaged with it is the land comprised in Khasra No.2319/920 and 2471/1810. It is not understood what is the basis of Tehsildar’s report that Khasra Nos.2319/920 and 2471/1810 and not Khasra No.920/1 had been mortgaged. There is an admission by respondent No.4 himself, in the aforesaid two documents, that he had mortgaged Khasra Nos.920/1 and 1810/1. The house stands on a part of Khasra No.920/1 and this fact is admitted by …4… respondent No.4 himself in his application Annexure P-12. Patwari’s certificate Annexure P-13 also shows that the house stands on Khasra Nos.2425/920 and 2424/920, which are parts of Khasra No.920/1. 6. In view of the abovestated position, as also the fact that the action of the petitioner is protected, under Section 32 of the aforesaid Act of 2002, I am very clear, in my mind, that respondent No.4 has abused the process of law, by getting the petitioner booked for offence, under Section 448 of the Indian Penal Code. Consequently, the present petition is allowed and the case registered, at the instance of respondent No.4, vide FIR No.49 of 2008, at Police Station, Bhava Nagar, is quashed, not only as against the present petitioner, but also against other persons. Petition stands disposed of. July 6, 2009(sd) (Surjit Singh), J.