The criminal revision petition challenging the rejection of ARCIL's request to substitute itself as the complainant in a pending cheque bounce case originally filed by ICICI Bank. The court examined whether the SARFAESI Act permits such substitution in criminal proceedings.
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THE HON’BLE SRI JUSTICE N.RAVI SHANKAR
CRIMINAL REVISION CASE NO.495 OF 2005
Date: 30.12.2011
Between:
M/s.Asset Reconstruction Company of India Limited, (ARCIL), Mumbai, rep. by its Assistant Manager, Killol Bhagirath Thakore
…..Petitioner
And
M/s. Jaya Lakshmi Spinning Mills Limited, rep. by its Director Rayapti Sambha Siva Rao Guntur and two others
…..Respondents
THE COURT MADE THE FOLLOWING:
THE HON’BLE SRI JUSTICE N.RAVI SHANKAR
CRIMINAL REVISION CASE NO.495 OF 2005
ORDER:
Heard Sri Tharur, the learned counsel appearing for petitioner and the learned Additional Public Prosecutor.
2. The point which is raised in this criminal revision whether the petitioner which is M/s.Asset Reconstruction Company of India Limited can substitute itself in place of complainant in a prosecution for an offence under Section 138 of the Negotiable Instruments Act, 1881 (for short the Act) relating to a cheque bouncing offence brought earlier by the ICICI Bank Limited against the respondents 1 and 2 herein.
3. The point arises in the following circumstances. It is seen from the impugned order of the learned V Additional Munsif Magistrate, Guntur that earlier the ICICI Bank Limited filed a criminal case i.e. C.C.No.154 of 2004 in the said court alleging an offence punishable under Section 138 of the Act i.e. a cheque bouncing offence against the respondents 1 and 2 herein. The version of ICICI bank was that respondents 1 and 2 gave the cheque in connection with some amounts owed by them to it. Subsequently, it is the plea of the petitioner that ICICI Bank Limited sold away or transferred the undertaking or business and all its assets belonging to respondents 1 and 2 to it. In view of this the petitioner now
says that it is entitled to prosecute the cheque bouncing offence also which is earlier instituted by the ICICI Bank Limited.
4. Sri Tharur argued that according to Section 5(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interests Act, 2002 (for short SARFAESI Act) it is entitled to go on record and substitute itself in place of the complainant in the aforesaid prosecution launched on a complaint. Section 5(4) of the SARFAESI Act reads as follows:
“If, on the date of acquisition of financial asset under sub-section (1), any suit, appeal or other proceeding of whatever nature relating to the said financial asset is pending by or the third proviso to sub-section (1) of Section 15 of the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986) the same shall not abate, or be discontinued or be, of financial asset by the securitisation company or reconstruction company, as the case may be, but the suit, appeal or other proceeding may be continued, prosecuted and enforced by or against the securitisation company or reconstruction company, as the case may be.”
The language of Section 5(4) of the SARFAESI Act would indicate that the company which acquires the assets of another company under the provisions of the SARFAESI Act can prosecute only civil proceedings relating to the financial assets of the company which were transferred to the acquired company. The said provision nowhere says that it is applicable to the pending criminal prosecutions also.
5. It may be noted that nobody can transfer a criminal prosecution instituted on a complaint for an offence under Section 138 of the Act to a third party and at best if the original complainant dies only his or its legal representative can continue it but not a third party. In a case relating to an offence under Section 138 of the Act, the aggrieved person to institute prosecution can be the payee or the holder-in-due course of the cheque
in question and ICICI bank was the payee. Admittedly the petitioner is not the payee or the holder-in-due course of the cheque and it therefore follows that it cannot seek its substitution in place of the original complainant in the aforementioned C.C.No.154 of 2004. No legal position or any decision has been brought to my notice to accept the petitioner’s contention.
6. For the aforesaid reasons, it follows that the order of the learned Magistrate does not suffer from any illegality or infirmity and this revision is accordingly dismissed.
___________________________ JUSTICE N.RAVI SHANKAR
30th December, 2011 Tjmr
THE HON’BLE SRI JUSTICE N.RAVI SHANKAR
CRIMINAL REVISION CASE NO.495 OF 2005
DATE: 30.12.2011
2 issues framed by the court
Whether a Securitisation Company acquiring assets can substitute itself for the original payee-complainant in a pending criminal prosecution for cheque bounce under Section 138 N.I. Act.
Whether Section 5(4) of the SARFAESI Act applies to continue criminal proceedings by the acquiring company against third parties.
1 provisions across 1 enactments
M/s. Asset Reconstruction Company of India Limited, (ARCIL)
M/s. Jaya Lakshmi Spinning Mills Limited
N. Ravi Shankar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
