1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Criminal Writ Petition No. 187 of 2009 Suhas s/o Balkrishna Phalak and others Petitioners Versus Vinod Leeladhar Nemade Respondent ... Mr. V.D. Hon, Advocate for the petitioners Mr. P.B. Waghmare, Advocate for the respondent ... CORAM : A.V. NIRGUDE, J. DATE : 31st March, 2010 PER COURT : 1. Heard. 2. The facts leading to the Writ Petition show a gross misuse of process of Law at the hands of respondent and the authorities including the learned Chief Judicial Magistrate, Jalgaon. It is common ground that the respondent is a partner of the Firm, which borrowed loan from a Co-operative Bank, of which the petitioners are members of Board of Directors. It is also common ground that the respondent and his Firm committed default and the bank of the petitioners initiated proceedings under Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. They meticulously took steps in this regard and even took possession of three assets owned by the respondent No.1 and partners of his Firm. 2 The bank even advertised sale of the property by a public auction, and on at least two occasions, the respondent and his partners tried to stop the public auction. On all occasions their attempt to stop the public auction contemplated under Section 13 (4) of the Act got foiled. Lastly, the respondent even approached this Court by filing a Writ Petition asserting that the bank should be stopped from causing sale of his assets, because the bank was intending to sell his assets for lesser price. He suggested that the market value of his asset was Rs. 45,00,000/- and the bank had almost agreed to sell his asset to a third party for sum of Rs.15,00,000/-. The Writ Petition was dismissed at admission stage. The Division Bench of this High Court observed as under : “The property to be auctioned is based on Award respondent bank has in their favour. The challenge to the same would be before the appropriate authority under the Maharashtra Cooperative Societies Act. Considering that, no interference is called for”. 3. It is after this failure to stop the auction sale of his property, the respondent filed a private criminal complaint, which was registered as Regular Criminal Case No. 394 of 2008, in the Court of Chief Judicial Magistrate, Jalgaon. Again the main bone of the contention of the respondent in this complaint was that his property was being sold fraudulently and deceptively for lesser price to a person who was favoured by the petitioners. So saying, the respondent, accused the petitioners of committing an offence punishable under Section 420 read with Section 34 of the Indian Penal Code. The learned Chief Judicial 3 Magistrate unfortunately, it seems, without going into the facts of the case and without critically examining the allegations in the complaint, blindly passed an order to call report under Section 156 (3) of Code of Criminal Procedure from the concerned police station. This order was passed on 5th August, 2008. The police, upon receipt of this order, registered offence and even filed the charge-sheet. 4. The gist of the complaint of the respondent filed before the learned Magistrate, can be stated as under : The petitioners advertised public notice for sale of his property. In the meantime, he contacted a party by name Chandrashekhar Kadam who showed interest to purchase the property for Rs.45,00,000/-. The respondent alleged that he informed this fact to the petitioners, and despite this, the petitioners sold this property to one Milind Choudhary for Rs.16,75,000/-. He alleges that this act on the part of the petitioners was illegal and amounted to an offence of cheating. On the face of it, this does not amount to any offence. The petitioners and the bank were trying to sell the property by putting it on sale by public auction. If at all any buyer was interested in buying this property, he could have approached them in the public auction. It is not clear as to why the respondent’s party/buyer Shri. Kadam did not approach the bank and did not offer higher price for the property. So, on the face of it, the allegation that the petitioners sold the property fraudulently to their favoured person without putting it to real public auction, is devoid of truth, and the allegations are made for the sake of allegations and to initiate somehow a criminal case against the petitioner. I am of the view 4 that this is a fit case where the powers under Section 482 of Code of Criminal Procedure should be utilized. No doubt, after filing of the charge-sheet, the petitioners have ample opportunity to urge the Magistrate for discharging them and to convince him that charge is groundless etc. But, that does not mean that the petitioners cannot approach this Court under Section 482 of Code of Criminal Procedure or under Article 227 of the Constitution of India. They are certainly at liberty to show that the complainant has not made out any case against them and provide agony of criminal trial.The law on this subject is settled long back by the Supreme Court in the case of M/s. Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others (AIR 1998 Supreme Court 128). As against this, the learned Advocate appearing for the petitioners brought to my notice a later Judgment of the Supreme Court in the case of Central Bureau of Investigation v. RaviShankar Srivastava, IAS and Anr. (AIR 2006 Supreme Court 2872) to suggest me that the powers under Section 482 of Code of Criminal Procedure should not be utilized in this case. The Supreme Court held that the High Court can exercise powers under Section 482 of Code of Criminal Procedure in an exceptional case and not as a routine. In this regard, a reference can also be made to the well known Judgment of Supreme Court in Bhajan Lal’s case (1994 J.T. Supreme Court 650). I am convinced that the complaint lodged by the respondent is devoid of merits and no offence is made out, and therefore, this is a fit case to exercise powers under Section 482 of Code of Criminal 5 Procedure to quash the proceedings. 5. The petition is allowed. Regular Criminal Case No. 394 of 2008 stands quashed. [ A. V. NIRGUDE, J. ] srm/criwp187.09/ok