R.K.AGRAWAL,J. - (1.) This appeal has been filed against the judgment and order dated 07.01.2011 passed by the High Court of Judicature at Bombay in Criminal Writ Petition No. 1279 of 2010 whereby learned single Judge of the High Court dismissed the writ petition filed by the appellants herein.
(2.) Brief facts: (a) The complainant-respondent Company borrowed a sum of Rs. 900 lakhs comprising Rs. 180 lakhs through cash credits from the consortium of Banks (of which the State Bank of Travancore was the lead bank) and a sum of Rs. 720 lakhs being working capital demand Loan. Due to non-payment of the loan amount, the account became Non-Performing Asset. In order to recover the amount against the borrower, the State Bank of Travancore filed OA No. 96 of 2003 before the Debts Recovery Tribunal (DRT), Mumbai. On 22.07.2005, the DRT passed a partial decree awarding a sum of Rs. 812.26 lakhs with 12 per cent interest. (b) On 29.03.2006, the State Bank of Travancore assigned the debts due from the complainant-Company to the Kotak Mahindra Bank together with all the securities through an Assignment Deed. On 11.01.2007, the borrower-the respondent Company assigned to Kotak Mahindra Bank the debt due towards it from one Ravishankar Industries Pvt. Ltd. of more than Rs. 32 crores with an agreement that any excess recovery over and above Rs. 90 lakhs from Ravishankar Industries Pvt. Ltd. would be shared equally between the Kotak Mahindra Bank and the complainant-Company. It is pertinent to mention here that the fact of the alleged Assignment Deed came to the notice of the complainant-Company only on 17.01.2007 when the Kotak Mahindra Bank handed over a copy of the application for substituting themselves in place of State Bank of Travancore to the respondent-Company. (c) The Kotak Mahindra Bank initiated process for substituting its name in place of the assignor-State Bank of Travancore in the recovery application and also withdraws two criminal complaints filed by the respondent-Company against Ravishankar Industries Pvt. Ltd. without any information to the respondent-Company. On 28.04.2007, the Kotak Mahindra Bank moved an application before the Recovery Officer-I for appropriating Rs. 67.5 lakhs due towards the complainant-Company, being 50 per cent of the amount of Rs. 135 lakhs received in excess of Rs. 90 lakhs from the Ravishankar Industries Pvt. Ltd., against the claim towards the State Bank of Travancore. (d) On 16.05.2007, the complainant-respondent Company filed a complaint against the Kotak Mahindra Bank and its officers being No. 18/SW/07 before the Metropolitan Magistrate, Bandra, Mumbai under Sections 409, 418, read with 120-B of the Indian Penal Code, 1860 (in short 'the IPC'). On 25.06.2007, the Additional Chief Metropolitan Magistrate, Bandra, Mumbai issued process against all the accused in the complaint dated 16.05.2007. The accused therein preferred Criminal Revision Applications being Nos. 1024-1026 of 2007 before the Court of Sessions for Greater Bombay. Learned Additional Sessions Judge, vide order dated 03/05.04.2008, allowed the revision applications while setting aside the order of issue of process dated 25.06.2007. (e) A fresh complaint being No. 0800009/SW/08 was filed by the complainant-the respondent Company before the Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, Mumbai under Sections 409, 418, 423 and 425 read with Section 120-B of the IPC against the State Bank of Travancore, Kotak Mahindra Bank Limited and its officers. The Metropolitan Magistrate, I/C ACMM, 8th Court, Esplanade, Mumbai, vide order dated 25.01.2008, issued process against the officers of the State Bank of Travancore and Kotak Mahindra Bank Limited. On 11.05.2008, learned Magistrate excluded the officers of the Kotak Mahindra Bank Limited in view of an application filed by the respondent-Company to withdraw the complaint against them. (f) Being aggrieved, the appellants herein preferred a Criminal Writ Petition being No. 1279 of 2010 before the High Court. On 07.01.2011, learned single Judge of the High Court, dismissed the writ petition filed by the appellants herein for setting aside the order of issue of process by learned Magistrate dated 25.01.2008 against the appellants. (g) Aggrieved by the order dated 07.01.2011, the appellants have preferred this appeal by way of special leave.
(3.) Heard the arguments advanced by Mr. T.R. Andhyarujina, learned senior counsel for the appellants and Mr. Aniruddha P. Mayee, learned counsel for the State and perused the records. Point for consideration:;