Case Note & Summary
By this common judgment, the High Court disposed of Criminal Writ Petition No.2414 of 2005 and Criminal Appeal No.688 of 2006. The writ petitioner, Indur Kartar Chhugani, sought quashing of FIR No.103 of 2005 registered against him, his wife, and son under Sections 448 and 454 read with 34 IPC. The criminal appeal was filed by Punjab National Bank challenging an order dated 30.1.2006 passed by the Special MPID Court. The disputes revolved around two adjacent flats in Pinky Panorama CHS Ltd., Khar, Mumbai. These flats were owned by M/s. Seema Investment Pvt. Ltd., which had stood as guarantor for loans taken by M/s. Soundcraft Industries Ltd. from Punjab National Bank and Bharat Overseas Bank. Following default, proceedings under the SARFAESI Act, 2002, led to symbolic possession of the flats on 23.6.2004. Parallel proceedings under the MPID Act, 1999, resulted in attachment of the same flats on 19.1.2005. In February 2005, Indur Chhugani approached the banks with an offer to purchase, but his bid was rejected and the demand drafts returned. Subsequently, it was discovered that he and his family were occupying the flats without any valid title documents. The MPID Court directed lodging of a complaint, leading to the FIR. The petitioner also filed a civil suit for specific performance, which was dismissed. During the pendency of the writ petition, a Division Bench of the High Court, by order dated 9.9.2009, directed that the petition would not be heard until the petitioner vacated the flats. The Supreme Court dismissed the petitioner's special leave petition against that order. However, the present Bench decided to hear the matter on merits to resolve the stalemate, as the petitioner was benefitting from the impasse. The court reserved judgment on 20.7.2012 and pronounced it on 27.9.2012.
Headnote
A) Criminal Procedure - Interim Order - Condition Precedent for Hearing - Code of Criminal Procedure, 1973, Section 482 - The High Court had previously imposed a condition that the petitioner must vacate the flats before his petition could be heard; the Supreme Court declined to interfere. The Division Bench, noting that the petitioner was taking advantage of his own wrong and that the criminal proceedings were stalled, decided to hear the matter on merits to break the deadlock. Held that proceeding on merits was necessary in the interest of justice. (Paras 3-5)
Issue of Consideration
CRIMINAL WRIT PETITION NO.2414 OF 2005
Law Points
- Proceedings under SARFAESI Act
- MPID Act
- illegal possession
- criminal complaint under IPC Sections 448
- 454 r/w 34
- interim order conditioning hearing on vacating premises
- court's power to proceed on merits despite such order
Case Details
2012 LawText (BOM) (09) 78
Criminal Writ Petition No.2414 of 2005 with Criminal Appeal No.688 of 2006
A.M. Khanwilkar, A.R. Joshi
Indur Kartar Chhugani (in person), Mrs. Revati Mohite-Dere, Public Prosecutor with Ms. P.P. Shinde, APP, Mr. P.P. Tipnis i/b Consulta Juris, Mr. Pankaj Vijayan
Indur Kartar Chhugani (Writ Petitioner) and Punjab National Bank (Appellant in Criminal Appeal)
The State of Maharashtra & Ors.
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Nature of Litigation
Criminal writ petition for quashing of FIR and criminal appeal against order of Special MPID Court
Remedy Sought
Petitioner sought quashing of FIR No.103 of 2005; appellant bank challenged order dated 30.1.2006 passed by Special MPID Court
Filing Reason
Petitioner alleged wrongful registration of FIR for criminal trespass; appellant bank challenged the order regarding show-cause notice in C.R. No.47/2004
Previous Decisions
Order dated 30.1.2006 impugned in criminal appeal; earlier order dated 9/9/2009 of this Court conditioning hearing on vacating flats; SLP dismissed by Supreme Court
Issues
Validity of FIR and legality of possession of flats
Judgment Excerpts
This petition shall not be taken up for further hearing at any time in future, at the instance of the petitioner unless he vacates both the flats, i.e. Flat No.501 and 502, which he and his family is in possession for the last about 4 years, despite the order passed by this Court on 12th December, 2005 and the recent orders passed by the Debt Recovery Tribunal.
Considering the import of the order dated 9/9/2009 and the factual and legal position on the aspect vis a vis possession of Flat Nos. 501 and 502 with the petitioner and his family members, we thought it fit in the interest of justice to proceed with the matter on its own merits. For, it was necessary to break the deadlock or impasse which was enuring to the benefit of the petitioner – though the abovesaid order was intended to non-suit the petitioner from challenging the impugned FIR until he vacates the said flats which he was occupying unauthorisedly.
On 24.3.2005, the Investigating Officer of EOW attended the Khar police station and registered a criminal complaint against Indur Chhugani, his wife and his son, being C.R. No.103 of 2005 for the offences punishable under Sections 448, 454 r/w. 34 of Indian Penal Code.
Procedural History
Loan defaults and SARFAESI proceedings in 2004; symbolic possession taken on 23 June 2004; attachment under MPID Act on 19.1.2005; panchnama on 8.2.2005; banks served with attachment order on 12.2.2005; Indur Chhugani's bid and rejection in February 2005; discovery of his possession in March 2005; directions by MPID Court for complaint leading to FIR on 24.3.2005; Criminal Writ Petition No.2414/2005 filed; impugned order in Criminal Appeal No.688/2006 dated 30.1.2006; order dated 9/9/2009 by High Court conditioning hearing on vacating flats; SLP dismissed by Supreme Court; judgment reserved on 20 July 2012 and pronounced on 27 September 2012.
Acts & Sections
- Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act):
- Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999 (MPID Act):
- Indian Penal Code, 1860: 448, 454, 34
- Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970:
