Allowed

T.Michael Sorna Durai v. Dolly Issac

Kerala HC29 Oct 2012Crl.MC/1377/2008

Case brief

AI extract

What is this about?

The High Court of Kerala quashed criminal proceedings against bank officers accused of trespass and locking a gate while enforcing possession of mortgaged property under the SARFAESI Act, relying on statutory protection for officers acting in good faith.

What did the court decide?

Criminal proceedings in C.C.No.33 of 2008 against the petitioners are quashed invoking inherent powers under Section 482 CrPC.

T.Michael Sorna Durai Vs Dolly Issac — Quashing and FIR | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN

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MONDAY, THE 29TH DAY OF OCTOBER 2012/7TH KARTHIKA 1934

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Crl.MC.No. 1377 of 2008 ( )

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CC.33/2008 of ADDL.CHIEF JUDICIAL MAGISTRATE, TRIVANDRUM

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PETITIONER(S)/ACCUSED 1 TO 3:

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T. MICHAEL SORNA DURAI, CHIEF MANAGER, INDIAN OVERSEAS BANK, KURAVANKONAM BRANCH, THIRUVANANTHAPURAM.

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SHANKAR JAY RAMAKRISHNA, MANAGER (CREDITS), INDIAN OVERSEAS BANK, REGIONAL OFFICE, CHEROOTY LANE, KOZHIKODE.

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K. KOSAL RAM, CHIEF MANAGER, INDIAN OVERSEAS BANK, REGIONAL OFFICE, THIRUVANANTHAPURAM.

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BY ADV. SRI.P.B.SURESH KUMAR

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RESPONDENT(S)/COMPLAINANT & STATE:

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DOLLY ISSAC, D/O.K.M.JOSEPH,

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T.C.13/2163, MULAVANA JUNCTION, THIRUVANANTHAPURAM.

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STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM.

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R1 BY ADVS. SRI.V.AJAKUMAR

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SRI.T.M.CHANDRAN

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R2 BY PUBLIC PROSECUTOR SRI. R.RANJITH

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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DSV/-

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Crl.MC.No. 1377 of 2008 ( )

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APPENDIX

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PETITIONERS' ANNEXURES:

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A1 COPY OF THE NOTICE ISSUED BY THE BANK TO THE HUSBAND OF THE COMPLAINANT DATED 17.08.2002.

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A2 COPY OF THE COMMUNICATION SENT BY THE DISTRICT MAGISTRATE, THIRUVANANTHAPURAM TO THE TAHSILDAR, THIRUVANANTHAPURAM AND TO THE COMMISSIONER OF POLICE, THIRUVANANTHAPURAM DATED 10.03.2006.

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A3 COPY OF THE COMPLAINT FILED BY THE COMPLAINANT BEFORE THE COURT OF THE JUDICIAL MAGISTRATE, THIRUVANANTHAPURAM DATED 18.04.2006.

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A4 COPY OF THE REFER CHARGE FILED BY THE SUB INSPECTOR OF POLICE, MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM DATED 04.11.2006.

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A5 COPY OF THE REPORT FILED BY THE SUB INSPECTOR OF POLICE, MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM BEFORE THE COURT OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE, THIRUVANANTHAPURAM DATED NIL.

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A6 COPY OF THE COMPLAINT FILED BY THE FIRST RESPONDENT BEFORE THE COURT OF THE CHIEF JUDICIAL MAGISTRATE, THIRUVANANTHAPURAM DATED 16.11.2006.

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RESPONDENTS' ANNEXURES:

NIL

//TRUE COPY//

P.A. TO JUDGE

DSV/-

S.S.SATHEESACHANDRAN, J.

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--------------------------------------------------------Crl.M.C.No.1377 of 2008

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--------------------------------------------------------Dated this the 29^th day of October, 2012

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O R D E R

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Petitioners are proceeded as the accused in a complaint filed by the 1^st respondent before the Additional Chief Judicial Magistrate, Thiruvananthapuram. The gist of the accusation against the petitioners, who are stated to be bank officers is that they committed criminal trespass upon the property of the 1^st respondent and locked the gate of her property, and, thereby she suffered loss and injury.

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Admittedly, in respect of property adjoining to that of the 1^st respondent, the bank in which the petitioners officiated as officers had mortgage rights, as security furnished by a debtor towards a loan availed. To realise that security, when there was default of loan

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Crl.M.C.No.1377 of 2008

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:: 2 ::

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payment, the bank proceeded under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 {for short “SARFAESI Act”}. Pursuant to an application moved before the Chief Judicial Magistrate and orders passed under Section 14 of the SARFAESI Act, the bank took steps for the possession of the mortgage holding. When the bank moved for possession of the mortgage holding through the petitioners, its officers, they have committed the acts imputed against them in the property of the 1^st respondent and thereby she suffered loss, is her case. Previously, the complaint filed before the magistrate raising the very same allegations was referred to the police for enquiry and report under Section 156(3) of the Code of Criminal

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Crl.M.C.No.1377 of 2008

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:: 3 ::

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Procedure {for short “the Code”}. After investigation, a report was filed stating that the allegations are false, requesting for referring the case. Taking exception to that report, 1^st respondent filed a protest complaint. After recording her sworn statement, the magistrate, taking cognizance of the offences imputed, has ordered process to the petitioners/ accused. Questioning the cognizance of the offences taken against them, they have preferred the above petition for quashing the criminal proceedings invoking the inherent powers of this court under Section 482 of the Code.

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Annexure A6 is the copy of the complaint which also contains the sworn statement recorded from the complainant. Going through the complaint, it is seen that in respect of the very same cause of action imputed in the

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Crl.M.C.No.1377 of 2008

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complaint to proceed against the petitioners/accused, 1^st respondent had already approached the Debt Recovery Tribunal. Counsel on both sides is not in a position to state what happened to that petition, which was numbered as S.A.No.30 of 2006 on the file of that Tribunal. Whatever that be, the facts and circumstances presented in the case would clearly demonstrate that whatever acts done by the petitioners/bank officers were in execution of a valid order passed under Section 14 of the SARFAESI Act by the Chief Judicial Magistrate. Then the larger question is whether the acts were done in discharge of their official duties or in colourable exercise of the duties vested with them as officers of the bank. In this context, the protection given to the bank officers and others, so far as the enforcement of orders and also in

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Crl.M.C.No.1377 of 2008

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relation to the proceedings covered by the SARFAESI Act under Section 32 of the Act deserves to be taken due note of. The aforesaid section insulates the officers and other persons from being vexed with prosecution or other legal proceedings for anything done or imputed to be done in good faith under the provisions of the SARFAESI Act. In her sworn statement what the complainant has stated is by the misdeeds of the petitioners, the loss suffered by her was only Rs.1,000/- {Rupees One thousand only}. After a full-fledged investigation, the police had previously formed a conclusion that the allegations raised by the 1^st respondent in her complaint are false. They have filed a request for treating the case as false. Continuation of the criminal proceedings against the petitioners/bank officers, on the basis of the

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Crl.M.C.No.1377 of 2008

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:: 6 ::

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protest complaint of the complainant, in the given facts of the case, that too, when there is no whisper of allegation in the complaint, Annexure A6, to indicate that they have committed the acts alleged mala fide will not be conducive to justice.

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In the above circumstances, criminal proceedings against the petitioners/accused in C.C.No.33 of 2008 on the file of the Additional Chief Judicial Magistrate, Thiruvananthapuram are quashed, invoking the inherent powers of this court under Section 482 of the Code.

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Crl.M.C is disposed of as above.

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Sd/- (S.S.SATHEESACHANDRAN) JUDGE

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sk/-

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//true copy//

T.Michael Sorna Durai v. Dolly Issac

Case brief

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T.Michael Sorna Durai v. Dolly Issac

Case brief

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