1 cri.appln.3877 of 2009 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPLICATION NO. 3877 OF 2009 Mukul Ranjan, Chief Manager, Cash Management Services, 4th Floor, Mumbai Main Office, Fort, Mumbai 400 001. ... Applicant Versus 1. State of Maharashtra through the Public Prosecutor, High Court, Mumbai. 2. 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 ... Respondents Mr. Abbas Mookhtiar along with Mr. Luann Crasto i/by M/s. K. Ashar and Co. for Applicant. 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 application impugns the order dated 20th December, 2007 passed by the learned Additional Chief Metropolitan Magistrate, 8th 2 cri.appln.3877 of 2009 Court, Esplanade, Mumbai issuing process against the applicant in Criminal Case No. 08045330/2007 filed by respondent no. 2. 2. Respondent no. 2 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 (the 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. 2 at 38-A, Ground Floor, Raj Industrial Complex, Military Road, Marol, Andheri (East), Mumbai 400 059 informing respondent no. 2 and the general public that the applicant 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. 2 had failed to pay the 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 3 cri.appln.3877 of 2009 respondent no. 2 and the public in general against dealing with the property and that any dealings with the property would be subjected to the charges of Bank 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 Times, Mumbai Samachar and Janmabhoomi about 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. 2 and its partner Mr. Ketkar. It is also a pressurizing tactics on the part of the accused persons who are in consort with one Ms. Mini Shah, partner in respondent no. 2 firm. According to respondent no. 2, 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 public at large. After pasting of the notice, the relatives, friends, neighbours and business associates of Mr. Ketkar started calling him from various places enquiring about the notice which causing humiliation and embarrassment to him. 4 cri.appln.3877 of 2009 3. The learned Magistrate on considering the statement in verification of Mr. Ketkar, the contents of the complaint and the public notice, passed order of issuing process only against the applicant who is the signatory to the public notice. No process was issued against other two accused persons i.e. the Chairman and Managing Director of Bank of Baroda and the Deputy General Manager, M.M.N.R. Bank of Baroda.. 4. Mr. Abbas Mookhtiar, the learned counsel for the applicant submits that the complaint of defamation made by respondent no. 2 is a frivolous complaint. He submits that the main allegation of respondent no. 2 herein is of amount of outstanding loan as of "Rs. 56,15,9,294/- (Rupees Fifty Six Crore Fifteen lakh Nine thousand two hundred Ninety Four only)" mentioned in the notice pasted at the business premises of respondent no. 2. He points out that though there is error in the amount mentioned in the words as Rs.56 Crores, the notice mentions the correct amount in figures as Rs. 5,61,59,294/- except for a wrong placements of the comma. The comma ought to have been placed after figure "5" instead of after figure "56". He also refers to the public notice in the newspaper to point out that the 5 cri.appln.3877 of 2009 amount has been correctly mentioned therein as of Rs.5,61,59,294/-. Besides he submits that the bank has already in it's reply to the Advocates notice sent by respondent no. 2 admitted the inadvertent mistake and expressed apology for the mistake. The learned counsel submits that the error in the notice is too trifle a matter for incurring criminal liability under section 500 of Indian Penal Code. According to him, if the entire complaint is read as a whole, no offence can be made out against the applicant. It is next submitted by the learned counsel that it is not disputed by respondent no. 2 that it in fact owes the money to the bank and therefore, also there can be no allegation of defamation against the bank. 5. Mr. Mookhtiar relies upon the decision of the Apex Court in the case of Maksud Saiyed Versus State of Gujarat and Others reported in (2008) 2 Supreme Court Cases (Cri) 692 to submit that the bona fide mistake in the public notice cannot be said to be defamatory. The facts of the case cited were that Dena Bank had floated a public issue of 8 crore equity shares of Rs.10 each for cash at a premium of Rs.17 i.e. at a price of Rs. 27 each. The prospectus published for the purpose of public issue made reference to the proceedings in D.R.T. Ahmedabad by M/s. Nagami Nicotine Pvt. 6 cri.appln.3877 of 2009 Ltd. involving the claim of Rs.993.74 lakhs alleging non submission of export bills and non releasing of the sanctioned limits against the bank in the year 2003. The matter was in fact pending before the City Civil Court, Ahmedabad and not before the D.R.T. Ahmedabad as mentioned in the prospectus. That was the only basis on which the case of defamation was founded by the complainant. The Apex Court on these facts held that an inadvertent mistake committed by the Bank in referring to the case being pending before DRT instead of City Civil Court, cannot give rise to cause of action for filing a complaint under section 500 of the Penal Code, particularly when the other particulars contained therein were not found to be incorrect. 6. The submission advanced by the learned counsel for the applicant sounds appealing at first blush. However, if one reads the entire complaint as a whole, it can be seen that the allegations of defamation made by respondent no. 2 are not limited to the amount of debt mentioned in words in the notice. It is the act of pasting of the notice at the premises itself is challenged. 7. Mr. Gokhale, the learned counsel for respondent no. 2 submits 7 cri.appln.3877 of 2009 that the action of pasting of public notice at the business premises as also publication in the newspaper was fraudulent and malicious action on the part of the bank officials in connivance with Ms. Mini Shah. He submits that the bank had sanctioned credit facilities to respondent no. 2 consisting of term loan and packing credit. The term loan was towards acquiring land and building belonging to one Monark Enterprises of which Ms. Mini Shah is a partner. As per the terms and conditions of sanction Ms. Mini Shah became partner of respondent no. 2 also on 12th January, 2001. After sanction of term loan on 5th October, 2001, an amount of Rs.5.63 crore was illegally paid to Monark Enterprises on 9th October, 2001 without completing the mortgage in favour of bank and without the knowledge of respondent no. 2. This resulted in the disputes between Mr. Ketkar, partner of respondent no. 2 and Ms. Mini Shah. Subsequently MOU was entered into on 5th October, 2002 for segregation of liabilities and securities between two groups of partners i.e. respondent No. 2 Mr. Ketkar on the one hand and Ms. Mini Shah on the other. Accordingly the bank issued letter as dated 3rd February, 2003 segregating the liabilities and securities between respondent no. 2 and Monark Enterprises. The segregation was objected to by respondent no. 2 contending that it was not as per the 8 cri.appln.3877 of 2009 understanding. After segregation of liabilities and securities, the bank discontinued the facilities of respondent no. 2 and sanctioned unavailed portion of packing credit to Monark Enterprises. This conduct on the part of the Bank was with the sole purpose of harassing respondent no. 2 and helping Ms. Mini Shah. The partner of respondent no. 2 Mr. Ketkar therefore made complaints to various authorities in respect of the illegal and fraudulent act on the part of the bank officials in respect of the same and sanction of loan to respondent no. 2 leading to investigation by C.B.I. The investigation resulted into Case No. 87 of 2006 in the court of Special Judge for CBI Cases against said Ms. Mini Shah, Mr. Mahendrakumar Udeshi, DGM (Legal) and Mr. P.S. Shenoy, Chairman and Managing Director. CBI also included Mr. Ketkar as accused no. 1 in the case. All the four accused made discharge applications which have been rejected by different orders passed by the Sessions Court. 8. Mr. Gokhale points out that the action taken by the bank is patently mala fide. The three officials of the Bank who are responsible for the entire action taken did not comply with the procedure prescribed under section 13 of the Securitization Act. The 9 cri.appln.3877 of 2009 bank had sent demand notice upon respondent no. 2 calling upon it to make payment due to the bank. On receipt of the notice, respondent no. 2 immediately replied the same. The procedure prescribed under section 13 required the bank to take decision on the reply to the demand notice and communicate its decision within a period of one week to respondent no. 2. This was not been done by the bank. Instead it pasted notices at the business premises and several other properties belonging to respondent no. 2. 9. Mr. Mookhtiar, the learned counsel for the applicant next argues that respondent no. 2 cannot complain about pasting of notices of taking of symbolic possession of the premises, as partner of respondent no. 2 himself had given that offer. He submits that respondent no. 2 had by its letter dated 4th June, 2007 and 15th June, 2007 asked the bank to take symbolic possession of the property. As has been rightly submitted by Mr. Gokhale, the action of taking of symbolic possession by the Bank has not been pursuant to the request of respondent no. 2. He submits that the request made was by way of one of the terms of the proposal for settlement of the dues to the bank. In any case as has been pointed out by him, the action of taking possession has not been on account of the 10 cri.appln.3877 of 2009 proposal given by respondent no. 2, but by way of action taken by the Bank under the Securitization Act. 10. The reading of the complaint as a whole, it cannot be said prima facie that there is no substance in the complaint or that the same is a frivolous complaint. The totality of the circumstances require an opportunity to respondent no. 2 to make good his complaint at the time of trial. In the circumstances, this court is not inclined to exercise its inherent powers under section 482 of Cr.P.C. It is required to be exercised sparingly and quash the proceedings. Hence, application dismissed. 11. At the request of the learned counsel, it is clarified 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. 12. Interim orders passed in the applications is continued for the period of four weeks from today. (SMT. R.P. SONDURBALDOTA,J.)