Sudip Ahluwalia, J. - (1.) BY this application under Section 482 of the Code of Criminal Procedure, the petitioner/accused seeks quashing of the proceedings of G.R. No. 4839 of 2012, arising out of Taltala Police Station Case No. 381 of 2012, dated 21.12.2012 under Sections 341/353 of the Indian Penal Code, pending in Court of the Ld. 20th Metropolitan Magistrate, Calcutta.
(2.) BEFORE proceeding to go deeper into the matter, it would be proper to first go through the text of the First Information Report, lodged by the complainant Paul Anthony Maliakal, who claims to be the Authorised Officer of South Indian Bank Ltd., 20A, Park Street, Kolkata - 16. The allegations in the written complaint, which has been treated as the FIR, are set out as under: - - "I, Paul Anthony Maliakal, AGM and Authorised Officer, the South Indian Bank Limited, 20A, Park Street, Kolkata -16, empowered under the SARFAESI Act, 2002, and as per the CMM order dated 19.5.08, authorised to take possession of the property mentioned in the letter dated 12.12.12. I, along with your police personnels deployed to assist me, for taking possession of the premises situated at 85, S.N. Banerjee Road, Kolkata 13, we went to the said premises. I have insisted to give me the vacant possession of secured premises. I have faced tough resistance from the borrower/guarantors and their representatives. Considering the law and order situation, I could not take possession of the property." The case of the petitioner is that he is the Director of the Company "Plastosen Limited" which had been doing banking transactions with the South Indian Bank since 2005. Subsequently however certain differences and disputes arose between those parties. The said Bank first filed an application under section 19 before the DRT, Kolkata against the principle debtor "Plastosen Limited", the petitioner as the personal guarantor, and M/s. Sen Holdings Pvt. Ltd., the owner of two flats, as the mortgager of the flats. However during the pendency of the aforesaid Original Application itself, the Bank switched to a different course of action by issuing a notice on 12/6/2007 under section 13(2) of the SARFAESI Act, 2002. The petitioner challenged the notice and replied to the same on 14.08.2007. But in the meantime the Bank had moved the Tribunal and obtained an ex parte order on 18th July, 2007 of an injunction and appointment of a Receiver to take possession of the mortgaged flats.
(3.) ACCORDING to the petitioner, in view of the aforesaid pendency of proceedings before the DRT, the subsequent notice under Section 13(2) lost its force and validity. But the Bank on 12th of October, 2007, issued a possession notice under section 13(4). The petitioner therefore moved an application under section 17 on 17.11.2007 being S.A. 63 of 2007 in the DRT, and obtained some order as late as on 14.01.2015. But in the meantime the Bank had already moved an Application number 1 of 2008 before the Ld. Chief Metropolitan Magistrate, Calcutta and obtained an order U/S. 14 of the SARFAESI Act, directing the O/C of Taltola P.S. to provide Police help to the petitioner for taking possession of the secured asset. The contention of the petitioner is that such order was passed without notifying the affected parties/lessees and is therefore illegal. Subsequently on 25.06.2008, the DRT stayed operation of the notices under section 13(2) of the SARFAESI Act. The petitioner thus claims that the Bank was not justified in attempting to take actual possession of the secured assets as the relevant provisions of the SARFAESI Act were not followed.;