IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.11.2010 CORAM THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI CRL.O.P.Nos.16705, 19155, 19664 and 19883 of 2010 and M.P.Nos.1 of 2010 (4 in nos.), 2 of 2010 3 nos and 3 of 2010 (2 in Nos.) Crl.O.P.No.16075 of 2010 1. Gajapathy Rajan 2. Arul Selvan 3.Raman 4.Shankar Rao 5.M.S. Ragava Rao 6.S. Kannan 7.S. Nambirajan ... Petitioners vs 1. State By The Inspector of Police Team No.XVI Central Crime Branch, Egmore, Chennai-8 ... 1st respondent in all the petitions V. Sampath ... 2nd respondent Crl.O.P.No.19155 of 2010 1.Gajapathy Rajan 2.Natarajan 3.Arul Selvan 4.Sri Hari Rao .... Petitioners vs C. Janarthanan ... 2nd respondent https://hcservices.ecourts.gov.in/hcservices/ Crl.O.P.No.19664 of 2010 1. Gajapathy Rajan 2. Arul Selvan ... Petitioners vs C. Janarthanan ... 2nd respondent Crl.O.P.No.19883 of 2010 1. K. Venkatesan 2. A.Ramachandra Davey ... Petitioners vs C. Janarthanan ... 2nd respondent Criminal Original Petitions filed under Section 482 Cr.P.C. for the reliefs as stated therein. 1) call for the records in Cr.No.155 of 2010 in the file of the 1st Respondent and quash the same(Crl.OP.No.16705/10) 2) Call for the recrods in Cr.No.32 of 2009, in the file of the 1st Respondent and quash the summons dated 11.8.2010 and pass a further direction not to issue further summons to the petitioners as the first Respondent claims to implicate in cr.No.32 of 2009, on the file of the respondent Police (Crl.Op.NO.19155 of 2010) 3) to transfer the investigation in cr.No.32 of 2009, on the file of the 1st respondent to another investigations Officer, (Crl.O.P.No.19664/10) 4) to call for the recordsd in cr.No.32 of 2009, on the file of the 1st Respondent to quash the summons dated 16.8.2010, as pass a further direction not to issue summons to the petitiners on the first respondent claims to implicate in cr.No.32 of 2009, on the file of the Respondent police (Crl.O.P.No19883/10). For petitioners in : Mr.R. Shanmugasundaram Crl.O.P.Nos. Senior Counsel for 16705, 19155 Mr.Tha.Sirish Chowdhary 19664 of 2010 For petitioner in : Mr.R. Shanmugasundaram Crl.O.P.No.19883 Senior Counsel for of 2010 A. Mohamed Ali https://hcservices.ecourts.gov.in/hcservices/ For 1st respondent : Mr.Hasan Mohamed Jinnah in all the petitions APP For 2nd respondent in Mr.K. Sukumaran for all the petitions : Mr.J. Suresh C O M M O N O R D E R The petitions are filed seeking a direction to call for the records pertaining to the cases in Cr Nos.155/2010, 32 of 2009, on the file of the 1st respondent and quash the same. 2. The petitioners in all these petitions are the accused in two complaints given by the respondents/defacto- complainants before the 1st respondent Inspector of Police, Central Crime Branch, Egmore. For convenience sake, the petitioners in all these petitions are mentioned as petitioners and the 2nd respondent in all these petitions are mentioned as complainants. 3. One M/s N.S Investments availed a loan from the Bank in 1989. On 31.5.1995, M/s Blue Jaggers Estate Private Limited took over the liability of M/s N.S. Investments. A No due certificate was issued by M/s N.S. Investments. While taking over the liability of N.S Investments, the Indian Bank, the creditor of the proprietary firm promised and represented that they will sanction a loan of Rs.2 crores to the Blue Jaggers Estate Private Limited. Therefore, the complainant, who is the Managing Director of Blue Jaggers handed over title deeds pertaining to the layouts of various places. However, the bank sanctioned only a sum of Rs.10,00,000/- as loan. The bank also refused to issue No Objection Certificate for the plots sold by the complainant at Harita Enclave at Tambaram. The bank initiated recovery proceedings before DRT Chennai. The bank also initiated SARFEASI proceedings. The deposit of title deeds in respect of 12.19 acres of land situated at Aathanur village, which is claimed to be made on 21.9.90 by the bank is a forged one. 4. The complainants found that the bankers have cheated and created false documents of mortgages and they have fabricated and created false records and therefore, they have given a complaint against the bank officials to the Central Crime Branch, Chennai. 5. The Central Crime Branch is now seized of the matter and have registered a case in Cr. No.155/2010. https://hcservices.ecourts.gov.in/hcservices/ 6. Another complaint was given by one Janarthanan, one of the plot owners of Krishnapuri layout alleging that M/s Blue Jaggers Private Limited have created documents with the connivance of the officials of the Indian Bank to create a mortgage illegally. This complaint was registered in Cr.No.32 of 2009. 7. Pending investigation, the proposed accused viz., the officials of the Indian bank approached this court by filing the present applications to quash the FIR pending on the file of the CCB. 8. Mr.R. Shanmugsundaram, learned senior counsel appearing for the Bank Officials submitted that the petitioners are the bank officials of the Indian Bank and they have initiated proceedings for the recovery of the dues payable on a mortgage by deposit of title deeds. The learned senior counsel pointed out that the proceedings are pending before DRT and notice was issued for possession under SARFAESI Act. The learned Senior Counsel also pointed out that the petitioners who are all high officials in the bank have been implicated by the debtor and a owner of a plot as if the bank officials have cheated and forged the documents. The learned senior counsel pointed out that on the face of the complaint there is no prima-facie case made out and the FIRs are liable to be quashed. 9. On the contrary, Mr.J. Suresh, appearing for the complainant would submit that the complainant has not created any mortgage of the property which is a layout named as Krishnapuri layout. The learned counsel pointed out that while taking over the liability of M/s NS Investments, the bank officials have insisted the complainant's company to take over the liability and promised to extend Rs.2 crores of loan. The liability of the said NS Investments was of the year 1990 whereas the taking over of the same was in 1995. The learned counsel also pointed out that the officials have created the documents as if the complainant has mortgaged his property for the loan created in the year 1990 and has proceeded to bring the property to sale. The learned counsel pointed out that for the fraudulent acts of the bank officials, a genuine complaint has been given, which is under investigation and therefore, this Court need not go into the merits of the case at this juncture. 10. The learned counsel for the respondent relied on the following decisions: 1. (2006) 6 SCC 736 (Indian Oil Corpn., vs NEPC India Ltd and Others) 2. (2007) 12 SCC 369 (Pratiba vs Rameshwari Devi and Others) https://hcservices.ecourts.gov.in/hcservices/ 3. (2008) 8 SCC Cases 781 (Monica Kumar (Dr.) and another vs State of Uttar Pradesh and Others 4. (2008) 12 SCC 346 (Renu Kumari vs Sanjay Kumar and Others) 5. (2009) 1 SCC 516 (R. Kalyani vs Janak C. Mehta and Others) 11. The investigating agency viz., Central Crime Branch has filed their counter. I have carefully considered the rival contentions. As far as Cr.No.155/2009 is concerned, the complaint is given by the Managing Director of one Blue Jagger Private limited, a company which took over the assets and liabilities of N.S Investments. The Indian Bank has advanced certain loan facility to the said partnership firm in the year 1990. At the time of taking over of NS Investments, documents seem to have been created for equitable mortgage. The allegation in Cr.No.155/2009 is that the bank officials had fraudulently created documents to defraud the complainant. 12. As far as Cr.No.32 of 2009 is concerned, the complainant is a owner of a plot which forms part of the property, said to have been mortgaged with the bank. He was shocked and surprised to see the SARFEASI proceedings involving his property. Therefore, he has come forward with the complaint alleging fraudulent creation of mortgage deed by the Blue Jaggers Estate Limited in favour of the bank. He had also implicated the bankers. 13. Paras 4 and 5 of the counter filed by the Investigating agency would reveal that both the cases are pending investigation and the investigation so far done prima-facie discloses the involvement and participation of the petitioner in fabricating the equitable mortgage dated 21.9.90. It is also stated therein that the investigating agency has only issued summons for enquiry to show further progress in the investigation and to fix the actual offenders who could have been responsible in the matter of fabrication of equitable mortgage . It is also stated that the investigating agency has caused a summons to be sent to all the bank officials who were working between 1992 and 1996, at Indian Bank, Nungambakkam High Road branch, and only on the strength of the summons issued to the petitioner, they have rushed to this court by invoking sec.482 Cr.P.C to quash the summons. 14. Heard and perused the materials available on record. 15. The dispute between the parties is whether the mortgage by deposit of title was created in the year 1990 or in the year 1995. There are proceedings pending between the parties. Indian https://hcservices.ecourts.gov.in/hcservices/ bank has initiated recovery proceedings. Aggrieved by such proceedings, the mortgager and as well as one property owner has filed a complaint before the Central Crime Branch and the central crime branch had issued summons dated 11.8.2010 to various bank officials. 16. In the counter, the investigating agency would admit that they have issued summons to various bank officials for investigation in order to fix the responsibility for the fabrication of documents. Various guidelines had been issued by this court and the Apex Court that the defence material need not be considered at this stage. If it is evident that in a case there is sufficient evidence against the accused persons which may establish the charge against him, the proceedings cannot be quashed. 17. On the above legal back ground the complaint in Cr.No.155/2009 would show that the complainant has come with up the serious allegations that a document of equitable mortgage has been created involving a property for which the complainant has not intended to create mortgage. 18. In Cr.No.32/2009 the investigating agency would admit that they have issued summons to various bank officials to co- operate with investigation. As rightly pointed out, the investigation is only in the preliminary stage and the petitioner should not have rushed to this court on receiving of summon and also with a prayer to quash the summons. 19. Therefore, the petitioners have not made out a case for quashing of the F.I.R and therefore, the petitions are liable to be dismissed. Accordingly, all the petitions are dismissed. Consequently, connected Mps are closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar sr https://hcservices.ecourts.gov.in/hcservices/ To 1. The Inspector of Police Team No.XVI Central Crime Branch, Egmore, Chennai-8 2. The Public Prosecutor, High Court, Chennai 1 cc to Mr.J. Suresh, ADvocate Sr.84678 3 cc To Mr.Tha.Sirish Chowdhary Advocate Sr.20785 1 cc To Mr.A. Mohammed Ali, Advocate Sr.20786 Crl.O.P.No 16705, 19155, 19664 and 19883 of 2010 KSK(CO) EU 2.12.10 https://hcservices.ecourts.gov.in/hcservices/